Midgley v Boss Constructions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Midgley v Boss Constructions Pty Ltd [2021] NSWPIC 482
APPLICANT:	Andrew Midgley
RESPONDENT:	Boss Constructions Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	25 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of surgery in the applicant’s left hip, in respect of a condition asserted by the applicant to be consequent upon undisputed injury to the lumbar spine; the respondent denies consequential condition in the hip; the applicant claims that such condition arose as a result of altered gait because of injury to lumbar spine; Held - finding that the condition in the left hip was consequent upon injury to the lumbar spine; determination that the surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of the condition in the left hip; the respondent ordered to pay for the costs of and incidental to the surgery on the left hip.
DETERMINATIONS MADE:	1. The applicant suffered a condition in his left hip consequent upon injury to the lumbar spine on 17 January 2017. 2. The surgery proposed by Dr Rob Wallace, namely, left hip arthroscopy, CAM resection and labral repair/ debridement, is reasonably necessary as a result of injury on 17 January 2017. 3. The respondent is to pay the cost of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Andrew Midgley (the applicant/Mr Midgley) claims compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his left hip, claimed to be reasonably necessary for a condition in that hip consequent upon an undisputed injury to the lumbar spine on 17 January 2017. On that day he was employed by Boss Constructions Pty Ltd (the respondent) as a boilermaker when he sustained injury to his lower back as a result of lifting 20-30 kg of steelwork and throwing it into a wheelbarrow at a worksite in Epping, a suburb of Sydney.
Mr Midgley attended Ryde Hospital on 18 January 2017 where he was given painkillers and a medical certificate and advised to return home to Broken Hill to seek medical attention.
In Broken Hill the applicant came under the care of a general practitioner. Dr Nemeth Sheth, who referred him for an x-ray of his lumbar spine. Mr Midgley returned to work on 13 March 2017 on restricted duties, working three hours a day, five days a week.
Dr Sheth referred the applicant to Dr YH Yau, neurosurgeon, who saw him initially on 26 June 2017 and arranged an MRI scan of the lumbar spine on 27 June 2017, which showed a far lateral disc at the L4-S1 level on the right side encroaching into the right side foramen.
Dr Lau reviewed the MRI of the lumbar spine on 28 June 2017 and saw Mr Midgley again for review on 26 July 2018. He then requested a regional bone scan which was carried out on 23 August 2018[1], the findings of which included mild degenerative changes in both hips.
[1] Application to Resolve a Dispute (ARD) p 58, noting that reference to page numbers in this Statement of Reasons is to the page numbers in the Commission’s electronic records.
[2] ARD p 62.
Dr Yau also organised an MRI scan of both hips which was carried out on 24 August 2018[2]. Dr Lau saw the applicant again, much later, on 14 October 2019.
On 7 September 2017 Mr Midgley received a clearance to commence full duties at work. He says that he struggled at work every day, and eventually ceased work on 28 August 2018.
Dr Nemeth referred the applicant to see Dr Simon Sandler, neurosurgeon, in 2018, who organised bilateral facet joint injections which did not give any significant improvement in symptoms. Dr Sandler had access to the bone scan and MRI scan requested by Dr Lau.
Dr Sandler commented on these investigations in his report dated 14 December 2018[3], noting that the bone scan showed some issues with the hips and that the MRI scan included findings of a:
“…a superior labral tear on the left with mild chondromalacia and cam-type femoroacetabular impingement, some insertional gluteal tendonosis and mild left GT bursitis in the right hip…”
Dr Sandler referred the applicant to have bilateral sacroiliac joint injections, noting that if the applicant did not respond to these that he needed an opinion from a hip surgeon.
[3] ARD p 64.
When Dr Sandler reviewed the applicant on 22 February 2019[4], he again referred to the MRI of the applicant’s hips (dated 24 August 2018) and the findings recorded in the report thereon. The doctor thought that Mr Midgley would warrant referral to a hip surgeon for opinion.
[4] ARD p 65.
The applicant saw Dr Mario Penta, orthopaedic surgeon, on 7 August 2019[5] in relation to his bilateral hip symptoms. Dr Penta recommended consideration of a local anaesthetic and steroid injection into the left hip joint which could be diagnostic as well as therapeutic in nature, and said that the applicant may benefit from a bilateral range of movement and strengthening programme under physiotherapy supervision.
[5] ARD p 135.
Dr Sheth then referred Mr Midgley to see Dr Rob Wallace, orthopaedic surgeon on 31 January 2020[6] who thought that an arthroscopy to manage the labral and CAM pathology in the applicant’s left hip could be useful, although he warned the applicant that it would not give complete resolution of symptoms, but hopefully would give some improvement. On 2 March 2020 Dr Wallace provided a report to the respondent’s insurer, GIO General Limited (GIO), which addressed his recommendation for surgery to the left hip[7].
[6] ARD pp 36 & 78.
[7] ARD p 79.
The applicant was independently medically examined by Dr R Breit, orthopaedic surgeon, at the request of GIO on 10 October 2018 who provided a report that day[8]. Dr Breit also provided GIO with a supplementary report dated 1 November 2018[9] and a further report dated 25 March 2020 following a further examination of the applicant on that day[10].
[8] Reply p 31.
[9] Reply p 36.
[10] Reply p 38.
The applicant was independently medically examined at the request of his solicitor by
[11] ARD p 27.
[12] ARD p 33.
Dr J Bodel, orthopaedic surgeon on 2 December 2020 who provided a report of that date[11] and a supplementary report of 20 May 2021[12].
In notices issued to the applicant pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 24 February 2020, 16 April 2020 and 24 February 2021[13], GIO denied that the applicant had suffered a condition in his left hip consequent upon injury to his lower back on 17 January 2017 and that the surgery proposed by Dr Wallace to the left hip was reasonably necessary as a result of such condition.
[13] Reply pp 2, 6 and 11.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) did the applicant suffer a condition in his left hip consequent upon injury to the lumbar spine of 17 January 2017?
(b) is the surgery proposed by Dr Rob Wallace, namely, left hip arthroscopy, CAM resection and labral repair/debridement, reasonably necessary as a result of injury to the lumbar spine on 17 January 2017?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

The parties attended a conciliation/arbitration on 22 November 2021 conducted by way of telephone conference. Mr W Carney appeared for the applicant instructed by
Ms E Przygoda. The applicant attended on a separate line. Mr T Grimes appeared for the respondent instructed by Ms J Dooley.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

There was no application to adduce oral evidence of to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which is available on request.
I will not repeat them in full. In summary, they are as follows.

Applicant

The applicant notes that there is no dispute that he injured his low back on 17 January 2017, and clarifies the history originally recorded by Dr Bodel in his report dated 2 December 2020 that he did not sustain injury to his hips in the frank incident on 17 January 2017. His case is that as a result of the back injury and constant pain resulting therefrom, he was forced to walk in a different manner and as a result developed pain in both hips.
The applicant relies upon the course of his treatment summarised above, noting that
Dr Sandler treated his injured lumbar spine and Dr Sheth referred him to Dr Penta and later to Dr Wallace for treatment of his hip condition. Based on the MRI scan of the hips, Dr Penta found evidence of femeroacetabular impingement on the left associated with a superior labral tear, and recorded Mr Midgley attributing his hip symptoms to altered gait as a consequence of his back condition.
Dr Wallace also on 31 January 2020 noted that the majority of the applicant’s left hip symptoms seemed to be mechanical in nature and likely to relate to his impingement issues. He suggested the arthroscopy to manage the labral and CAM pathology, although that would not produce complete resolution of his symptoms.
The applicant submits that although Dr Bodel initially recorded an incorrect history of him injuring his left hip at the same time as he injured his back, nevertheless his diagnosis of the hip condition accords with that of Dr Penta and Dr Wallace. That is, Mr Midgley has suffered some aggravation of degenerative change involving the labrum of each hip. That diagnosis was made on clinical grounds.
The applicant notes that Dr Breit in his report dated 10 October 2018 finds it extremely difficult to answer a question posed to him as to whether the applicant’s bilateral hip symptoms are related to his workplace injury of January 2017. Dr Breit states that the hip condition does not relate to the lifting episode [sic] but may relate to the altered gait pattern.
The applicant notes that, on the basis of the date of his examination by Dr Breit, the allegation of altered gait pattern became apparent about 18 months after the injury. This report of Dr Breit dated 10 October 2018 is considered by Dr Wallace in his report to GIO dated 2 March 2020
In respect of the comment by Dr Breit in his report dated 25 March 2020 that Dr Wallace has made no mention of causation of the left hip condition, the applicant points to Dr Wallace’s report to GIO dated 2 March 2020 in which he gives an opinion as to the causation of the left hip symptoms. That is, there is a mixture of causation, and recent exacerbation of symptoms would seem to be related to altered gait which is certainly being contributed to by a work-related injury to the back.
The applicant submits that Dr Breit’s only real objection to the surgery proposed by
Dr Wallace is that there has been no up-to-date scan, and that in the presence of significant arthritic changes, the surgery may be rendered futile.
The applicant submits that Dr Bodel supports the reasonable necessity for the surgery proposed by Dr Wallace, and that his original opinion as to the causation of the left hip condition does not detract from his diagnosis of it, or from his support for the reasonable necessity for surgery.
In summary, the applicant submits that he has exhausted all measures of conservative treatment, and that they have failed to relieve his symptoms. His left hip condition has been caused by aggravation of a pre-existing condition in the left hip caused by his change of gait because of his back injury. Therefore, the surgery proposed is reasonably necessary as a result of such injury.

Respondent

The respondent notes that the applicant’s evidence in accordance with his statement is that he first noticed that the pain from his back had extended into both hips and pelvis region in approximately April/May 2017, whereas the first documented mention of the hips appears on the report of the bone scan carried out on 23 August 2018[14]: “Mild degenerative changes both hips”. An MRI scan of the hips was caried out the following day[15], where the CAM deformity with cystic change is noted.
[14] Reply p 18.
[15] Reply p 16.
The respondent’s case is that this is a constitutional condition, and the reason for surgery on the left hip, is purely as a result of such condition and not related to changes in gait.
Dr Breit in his report dated 10 October 2018 refers to the report of the MRI scans of both hips dated 24 August 2018, and in answer to questions put to him states that it is an extremely difficult question to answer if the applicant’s bilateral hip symptoms are related to the workplace injury of January 2017, but concludes that there is little, if any, contribution from the hip to the applicant’s symptoms, and that the spine should be treated and the hip ignored at that time.
The respondent notes that Dr Breit in his supplementary report dated 1 November 2018 repeats his view that only a miniscule component of the applicant’s hip pain is likely to arise from the hips themselves, and that femoroacetabular impingement is a constitutional phenomenon only totally unrelated to the applicant’s employment injury.
The respondent submits that none of the reports of Dr Sandler contain an opinion as to the causation of the pathology in the applicant’s hips or comment upon his altered gait. The respondent also points to Dr Sandler, in his report dated 17 May 2019, recording a fall onto the buttocks which is unexplained and may be of some significance.
The respondent submits that Dr Penta in his report dated 7 August 2019, simply records the applicant reporting bilateral groin pain, but does not offer an opinion on the causation thereof.
In respect of Dr Wallace’s opinion, the respondent submits that the doctor’s opinion in his report dated 31 January 2020 is that the “…left hip has multiple issues going on, with some early chondral degeneration, some gluteal tendinosis and bursitis and pronounced labral tearing and CAM lesion” but does not offer an opinion of the causation thereof. That finding is similar to that of Dr Penta. He refers to arthroscopic surgery as being “useful”, but not offering complete resolution of symptoms.
The respondent notes that Dr Wallace in his report to GIO dated 2 March 2020 at [7] thereof comments on Dr Breit’s reports of 2018, and at [8][16] is asked the wrong question for an opinion for a connection between the applicant’s employment with the respondent and the left hip arthroscopy proposed by Dr Wallace. Nevertheless, Dr Wallace says that there will be a “mixture of causation to Mr Midgley’s left hip symptoms”. The respondent submits that the correct test for the reasonable necessity for surgery as stated in Murphy v Allity Management Services Pty Ltd[17], that is, does the injury suffered by the applicant arising out of or in the course of his employment with the respondent materially contribute to the need for surgery, is not satisfied on the basis of the opinion of Dr Wallace. The respondent submits that
[16] ARD p 81.
[17] [2015] NSWWCCPD 49 (Murphy).
Dr Wallace concedes that the need for surgery results from the constitutional condition from which the applicant suffers in his left hip, and in this regard is in accordance with the opinion of Dr Breit.
The respondent relies upon the opinion of Dr Breit in his last report dated 25 March 2020 following a further examination carried out on that day. In that report in answer to a question [2] posed to him, the doctor repeats his opinion that there is no nexus between femeroacetabular impingement and the applicant’s back complaints. In response to question [3], Dr Breit questions the efficacy of such surgery should the left hip problem be deemed work related. The doctor notes that there have been no recent investigations of the applicant’s hips, and says that hip arthroscopy can be successful, but not when there are significant arthritic changes.
Relying upon what Burke CCJ states in Rose v Health Commission (NSW)[18] the respondent submits that it is unlikely that the surgery will be successful, even if it is found that the condition in the applicant’s left hip is found to be consequent upon the injury that Mr Midgley suffered to his lumbar spine on 17 January 2017.

FINDINGS AND REASONS

[18] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).

Consequential condition left hip

In his statement dated 28 August 2021 the applicant gives the following evidence in respect of his change of gait, which he says caused him to develop problems with both hips:
“33.   As a result of my back injury and the constant pain that I was feeling, I developed an altered gait pattern. I was forced to walk in a different manner, and as a result I developed problems with both of my hips.
…
42.    Since my back injury my gait has changed dramatically and I have not been able to walk properly. This has lead [sic] to significant problems with both of my hips. The injury to my hips came on over time. I am unable to recall exact dates as to
when I first started noticing the issues with my hips, all I know is that right now I
am in so much pain all over, from my lower back to my hips, that I cannot walk
properly at all.
…
44.    My gait was much like walking like a crab and slowly for a long time after my injury.
…
45.    I think that in approximately April/May 2017 I noticed the pain from my back had extended into both my hips and pelvis region.”
I agree with the respondent’s submission that the first documented reference to the applicant’s hips is in the report of the bone scan dated 23 August 2018. The clinical reference in that report is “Low back and gluteal pain. Assess lumbar and pelvic region”. The finding recorded in the report is “Mild degenerative changes both hips”.
It was Dr Yau who referred Mr Midgley for this scan, and also for the MRI scan of both hips, the report on which is dated 24 August 2018. The applicant was not apparently able to see Dr Yau again in 2018 following the bone scan and MRI, but did see him again on 10 October 2019, when the doctor commented that Mr Midgley was “…reviewed back in July 2010 [sic, 2018]” and that “For some reason he was lost to follow-up”. Dr Yau said that the MRI of the hip showed CAM deformities but that he had seen an orthopaedic surgeon who did not propose any surgical intervention.
In any event, Dr Yau did not comment on the causation of the applicant’s left hip condition.
Dr Sheth referred the applicant to see Dr Sandler during 2018 and 2019. The first report from Dr Sandler in evidence is dated 14 December 2018, although it is apparent from that report that Mr Midgley had seen the doctor before that date. Dr Sandler’s findings are referred to above at [6]-[7]. He did not comment on the causation of the condition in the applicant’s hips, although noted issues in respect thereof and suggested referral to a hip surgeon. Dr Sandler was dealing with the injury to Mr Midgley’s lumbar spine, so I do not regard it as significant that he did not comment in any detail on the condition in the hips.
Dr Penta, who saw the applicant on 6 August 2019 recorded a history from Mr Midgley of bilateral groin pain following the injury in January 2017, most pronounced on the left and associated with clicking sensations. The doctor examined the applicant’s hips and found satisfactory rotational movements bilaterally with pain reproduction at the extremes of rotational movements, most pronounced on the left. Dr Penta referred to the evidence of femoroacetabular impingement on the left associated with a superior labral tear shown on the MRI, and that Mr Midgley attributed his symptoms to altered gait as a consequence of his back condition. He recommended conservative treatment.

The applicant saw Dr Wallace for the first time on 31 January 2020 who recorded complaints in respect of the left hip similar to those recorded by Dr Penta. Dr Wallace also recorded a history that Mr Midgley “…developed abnormal gait with his back trouble and feel [sic] this has developed into his hip trouble”. The concluding paragraph of Dr Wallace’s report of 31 January 2020 is as follows:
“His left hip has multiple issues going on with some early chondral degeneration, some gluteal tendinosis and bursitis and pronounced labral tearing and CAM lesion. My feeling is the majority of his symptoms seem to be mechanical in nature and likely related to his impingement issues and he has had improvement from corticosteroid injections in the past. I think an arthroscopy to manage his labral and CAM pathology could be useful although I have certainly warned him he will not have complete resolution of symptoms but hopefully will have some improvement.”
Dr Wallace provided a report to GIO on 2 March 2020 in which he answered questions about the proposed surgery, and also commented on the 2018 reports of Dr Breit. He said:
“I believe Dr Breit referred to the fact that his bilateral hip findings were existing prior to his injury as part of a constitutional condition which relates to the development of his hips in a particular shape that is pre-disposed to femoroacetabular impingement. Femoroacetabular impingement can then lead to labral pathology and early osteoarthritic changes all of which Mr Midgley demonstrates. The suggestion is that his hip symptoms have developed in the setting post his back injury due to altered gait. I believe Dr Breit also commented that his hip symptoms may be related to this although it is likely that Mr Midgley did have symptoms from his hip prior to this
injury and it would seem that the hip has deteriorated since his injury due to altered gait.”

In answer to the wrong question put to him for an opinion for a connection between the applicant’s employment with the respondent and the left hip arthroscopy proposed,
Dr Wallace replied:

“I think overall there will be a mixture of causation to Mr Midgley's left hip symptoms. The underlying factor being his femoroacetabular impingement is related to his hip development and unrelated to his employment. His exacerbation of symptoms recently would seem to be related to altered gait which is certainly being contributed to by a work-related injury to his back. As far as attributing the percentage of contribution of each of these factors I think this will be fairly difficult but I would suspect the main contributing factor to be his underlying femoroacetabular impingement and that there has been a minor but significant contribution from his altered gait post lumbar back injury.”

From this summary, I find that while the applicant says that it was approximately April/May 2017 when he noticed the pain from his back had extended into both his hips and pelvis region, it was not until about July or August 2018 that he apparently mentioned it to Dr Yau, who ordered a regional bone scan dated 23 August 2018, which revealed mild degenerative changes in both hips, and an MRI scan dated 24 August 2018 which revealed the CAM deformity and femoroacetabular impingement.
I do find however that the applicant had adopted an altered gait as a consequence of his back injury. He made consistent complaints of this to his treating doctors, Dr Penta and
Dr Wallace, and Dr Breit in his report dated 1 November 2018 says that “An altered gait pattern may cause some irritation but that is not to say that it did”. Neither Dr Penta,
Dr Wallace nor Dr Breit discount that an altered gait pattern could give rise to the left hip symptoms, and I do not see why the applicant’s evidence that he was obliged to adopt such an altered gait should not be accepted. It is apparent from his evidence, the histories provided to doctors and their findings on examination that Mr Midgley has experienced considerable difficulty as a result of the injury to his lumbar spine. It is entirely credible that he would have to adopt an altered gait as a result of that difficulty.
I accept the evidence of Dr Wallace that the exacerbation of symptoms in the left hip would seem to be related to altered gait which is certainly being contributed to by a work-related injury to the back. Dr Breit gives qualified support to this proposition, and it is endorsed by
Dr Bodel in his supplementary report dated 20 May 2021 after he was appraised by the applicant of the correct history that Mr Midgley did not injure his hips on 17 January 2017. Having said that, I note that Dr Bodel nevertheless does not, in that supplementary report, entirely discount the event of 17 January 2017 as being causative, in part, for the aggravation, acceleration, exacerbation and deterioration of the disease process in the left hip.
I find that the applicant has sustained a condition in his left hip consequent upon the injury to his lumbar spine on 17 January 2017. The condition is the exacerbation of the labral tear associated with the femoroacetabular impingement of the left hip, a constitutional condition diagnosed by Dr Penta and Dr Wallace who treated Mr Midgley for his left hip symptoms, and also by Dr Breit and Dr Bodel.

Reasonable necessity for surgery

In Rose, Burke CCJ stated at 48A-C:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diabv NRMA Ltd[19] Roche DP at [88] said that, in the context of s 60 of the 1987 Act, relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose, namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective
[19] [2014] NSWWCCPD 72 (Diab).
At [89] of Diab the Deputy President said:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
In Murphy Roche DP said at [57]-[58] that a work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. All a worker has to do is to establish, applying the commonsense test of causation Kooragang Cement Pty Ltd v Bates[20], that the treatment is reasonably necessary “as a result of” the injury. That is the worker has to establish that the injury materially contributed to the need for the surgery.
[20](1994) 35 NSWLR 452; 10 NSWCCR 796.
In the excerpt from Dr Wallace’s report dated 2 March 2022 referred to above at [47], the doctor provides a balanced view of the causation of the applicant’s current symptoms in the left hip, and while he thought that attributing the percentage of contribution of each of the factors will be fairly difficult, he suspected that the main contributing factor (and here the doctor is reflecting the incorrect basis on which the question was put to him) is the underlying femoroacetabular impingement. However he says that there has been a minor but significant contribution from the applicant’s altered gait after the injury.
In his report dated 10 October 2018 Dr Breit is asked for his diagnosis of Mr Midgley’s bilateral hip symptoms. He replied that clinically, Mr Midgley has at most a minor component of pain arising from the hips where there is femoroacetabular impingement and some early arthritic change. In answer to the next question as to whether the applicant’s bilateral hip symptoms are related to his workplace injury of January 2017, Dr Breit said that that is an extremely difficult question to answer. He went on to say that:
(a)    femoroacetabular impingement is constitutional and is known to be a precursor of hip arthritis;
(b)    pain in the hips can be referred from the lumbar spine, from sacroiliac joints, from inside of the pelvis itself, from the hip joint or from trochanteric bursitis, and
(c)    there is frequently an overlap and apportioning blame is extremely difficult. It does not relate to the lifting episode as described but may relate to the altered gait pattern.
Dr Breit thus concedes the possibility of the minor but significant (according to Dr Wallace) contribution from the applicant’s altered gait after the injury to the left hip symptoms, adverted to by Dr Wallace.
Each case must depend on its own facts. In this case the applicant has experienced considerable pain and disability as a result of his undisputed injury to the lumbar spine, and
I have found that the condition in the left hip is consequent upon that injury. Mr Midgley sought treatment for his back injury from specialists Dr Yau, Dr Penta and Dr Sandler.
Dr Penta recommended consideration of a local anaesthetic and steroid injection into the left hip joint which would be diagnostic as well as therapeutic in nature, and other conservative treatment. It appears that the injection suggested by Dr Penta was carried out, as improvement from corticosteroid injections in the past is mentioned by Dr Wallace in his report dated 31 January 2020 referred to hereunder. The applicant confirms in his statement that he has undergone a number of injections to his lower back and hips, and that the injections to his hips offered some minimal relief which was temporary and short lasting. The pain eventually returned, and the applicant does not think that the injections helped at all.
The applicant says that the surgery offered by Dr Wallace is going to be the only option left to him, having exhausted other treatment options.
When Dr Wallace first saw Mr Midgley on 31 January 2020 he presented with pain around the left hip as well as a long history of back troubles and to a lesser degree right hip troubles. Dr Wallace is of the view that an arthroscopy to manage the applicant’s labral tear and CAM pathology “could be useful”, although a warning was given that it would not lead to complete resolution of symptoms, but hopefully would have some improvement.
In his report dated 25 March 2020 Dr Breit questions the appropriateness of the treatment, saying that hip arthroscopy can be successful, but expresses concern as to whether the present degree of degeneration in the hip is such as to render any proposed surgery futile. He is not aware of any recent investigations of the applicant’s hips, only the MRI scan from August 2018. That does seem to be the case in respect of radiological investigation of the applicant’s hips. In his first report dated 10 October 2018 Dr Breit noted “…some early arthritic change”.
Dr Wallace, in his report to GIO dated 2 March 2020 does not suggest further radiological investigation before proceeding with surgery. He does not think that the surgery he proposes is likely to result in further surgery and says that the reasonable likelihood of the applicant requiring a total hip replacement in the future will be as a result of the underlying femoroacetabular impingement and developing arthritis rather than the work caused condition in the hip or altered gait.
In my view the treatment proposed by Dr Wallace is appropriate in the circumstance in which the applicant now finds himself. He has exhausted conservative treatment, and his treating surgeon says that he will notice some improvement in his hip function from about six weeks following surgery, with probable maximum benefit from about three months onwards. As observed by Roche DP in Diab, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.
The cost of the treatment has not been made an issue in the proceedings. Dr Breit does not say that the proposed left hip surgery is not appropriate but is concerned if it will be effective in the applicant’s case.
Weighing up the factors summarised above I find that the condition suffered by the applicant in his left hip consequent upon the injury to the lumbar spine on 17 January 2017 has materially contributed to the need for the surgery proposed by Dr Wallace. That is, the surgical treatment is reasonably necessary as a result of injury on 17 January 2017.

SUMMARY

The applicant suffered a condition in his left hip consequent upon injury to the lumbar spine on 17 January 2017.

The surgery proposed by Dr Rob Wallace, namely, left hip arthroscopy, CAM resection, labral repair/ debridement, is reasonably necessary as a result of injury on 17 January 2017.

The respondent is to pay the cost of and incidental to such surgery pursuant to s 60 of the 1987 Act.

[2021] NSWPIC 482

25 November 2021