Mitchell v Ready Workforce (A Division of Chandler Macleod) Pty Ltd - [2021] NSWPIC 18

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mitchell v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2021] NSWPIC 18
APPLICANT:	Estelle Mitchell
RESPONDENT:	Ready Workforce (A Division of Chandler Macleod)
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	12 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses for right total knee replacement; injury to left knee in 2010 accepted; consequential right knee condition disputed; where medicolegal experts not given history recorded in clinical records of an acute onset of symptoms at right knee on a plane; where documented history of poorly controlled neuropathic pain in left knee but no direct reference to altered gait in treating medical evidence; Held – applicant sustained consequential condition at right knee; the surgery was reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	1. The applicant sustained a consequential condition at her right knee as a result of the left knee injury on 12 March 2010. 2. The right total knee replacement surgery performed by Dr Hyde Page on 24 August 2020 was reasonably necessary as a result of the left knee injury on 12 March 2010.
ORDERS MADE	1. The respondent to pay the costs of and incidental to the right total knee replacement surgery performed by Dr Hyde Page on 24 August 2020 pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Estelle Mitchell (the applicant) was employed as an egg packer by Ready Workforce (A Division Of Chandler Macleod) Pty Ltd (the respondent) when she tripped and injured her left knee on 12 March 2010. A claim for compensation was made and liability for the left knee injury was accepted by the respondent’s insurer.
On 16 March 2020, the applicant’s legal representatives wrote to the insurer claiming that the applicant had sustained a consequential condition at her right knee as a result of the injury to her left knee and sought compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to a proposed right total knee replacement.
Liability for the consequential right knee condition was declined in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 16 June 2020.
On 24 August 2020 the applicant underwent the right total knee replacement surgery performed by Dr Murray Hyde Page.
On 25 September 2020, the applicant sought internal review of the decision to dispute liability. That decision was maintained under a further notice issued on 7 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 12 November 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Whether the applicant sustained a consequential condition at her right knee as a result of the injury to her left knee on 12 March 2010;
(b) Whether the surgery performed by Dr Hyde Page was reasonably necessary as a result of the injury on 12 March 2010.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 8 February 2021. The applicant was represented by Mr Craig Tanner of counsel, instructed by Ms Jessica Grant-Nilon. The respondent was represented by Mr Simon McMahon of counsel, instructed by Mr Jayden Krieg.
At the commencement of the arbitration hearing, an application to cross-examine the applicant was made by the respondent. After hearing submissions on the application from both parties, I determined to refuse the application for reasons given orally and recorded.
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.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents; and

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 28 January 2021[1].

[1] It is noted that the Application to Admit Late Documents included a schedule of s 60 expenses incurred prior to the surgery by Dr Hyde Page which are not claimed in these proceedings.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 9 November 2020.
The applicant gave evidence that on 12 March 2010, she tripped and injured her left knee against a feeder line. The applicant was in immediate, significant pain which prevented her from being able to stand. The applicant was taken to Tamworth Base Hospital where an
x-ray showed no fracture. The applicant was advised by the respondent’s general practitioner, Dr Jim Stacey, to manage her symptoms with medication, physiotherapy and rest.
The applicant’s condition deteriorated and she was referred to an orthopaedic surgeon,
Dr Robert Sharp, whom she saw on or about 13 January 2011. Dr Sharp recommended arthroscopic surgery, which was performed on 28 February 2011 and revealed a complicated tear of the medial meniscus.
Following the surgery, the applicant received physiotherapy but, on 5 May 2011, Dr Sharp diagnosed that the applicant had also injured the insertion to her hamstrings in the fall which was previously overlooked. The applicant received two cortisone injections but they failed to provide any real relief to her symptoms.
The applicant was referred by Dr Sharp for a further MRI and further physiotherapy. The physiotherapy worsened the applicant’s pain level and further surgery was performed on 21 December 2011. The surgery did not result in any improvement in the applicant’s pain level.
The applicant was referred to pain management specialist, Dr Marc Russo who recommended medication and a pain management program. The applicant was later referred to orthopaedic surgeon, Dr Simon Coffey. Dr Coffey diagnosed saphenous neuritis to the left tibia and referred the applicant to another pain specialist, Dr Tillman Boesel.
The applicant saw Dr Boesel in August 2014 and he recommended a neurostimulator implant. Liability for the neurostimulator implant was declined in early 2015.
The applicant was experiencing significant, chronic pain. Medication did not provide any real relief. The applicant was unable to stand or walk on level surfaces for more than five minutes. The applicant was unable to kneel or crouch, relied on handrails to climb stairs and her left knee would give way at times. The applicant’s knee would lock up when lying down. The applicant said:
“I was unable to put much weight on my left leg as it caused an increase in my symptoms. I therefore needed to walk with placing most of my weight on my right leg to minimise the increasing symptoms to my left leg.”
After proceedings in the Workers Compensation Commission were commenced in March 2017, agreement was reached that the insurer would pay for the neurostimulator implant trial. After some delay, a trial was performed in July 2018 before the applicant received a permanent implant. Although the applicant experienced a reduction in symptoms, she still had significant pain:
“I continue to suffer more significant pain following putting any weight on my left leg and would therefore constantly be placing as much weight as possible on my right leg. Even following receipt of the neurostimulator implant, I still had difficulty putting weight on my left leg and so continued to walk by placing the majority of my weight on my right leg. Over time, walking was causing an increase in my pain in both legs and I became very limited when walking.
Further, I would also experiencing imbalance whereby I would never feel comfortable walking, feeling that my feet would give way.”
As pain in the applicant’s right leg and knee increased, her general practitioner, Dr Mary Micua, referred the applicant for a CT scan of the right knee which was performed on 14 June 2019. The applicant was then referred to orthopaedic surgeon, Dr Murray Hyde Page.
The applicant saw Dr Hyde Page on 25 July 2019. An x-ray to the right knee performed on the same day revealed moderate to severe right knee osteoarthritis. The applicant told
Dr Hyde Page about an incident about two months prior in China where the back of her right knee was hit by a chair, which caused an increase in pain to the right knee. Dr Hyde Page considered this was a temporary aggravation and recommended that the applicant undergo a total right knee replacement.
The applicant was assessed by Dr Boesel who agreed that the total knee replacement could go ahead. Dr Boesel later gave the opinion that the applicant’s right knee condition was a result of the left knee injury. Dr Boesel considered the knee replacement surgery was reasonably necessary for the condition.
The applicant made a claim with the insurer for the costs of the knee replacement surgery. Following an assessment by Dr Richard Powell, liability for the surgery was declined. The applicant was then placed on a public waiting list and underwent the surgery on 24 August 2020. The applicant said she had experienced a reduction in her pain levels since the surgery.

Evidence from the applicant’s treating practitioners

On 13 January 2011, orthopaedic surgeon, Dr Robert Sharp prepared a report describing the injury to the applicant’s left knee on 12 March 2010 when the applicant slipped in a chicken shed and fell heavily with her left knee on a chicken feed trough. Dr Sharp reported,
“Since then Estelle has had pain and discomfort with mobilising. She has also had intermittent swelling and locking of her knee. The pain localises to the anteromedial portion of her right knee. Not only is Estelle exquisitely tender to palpate, but most movements cause radiating pain from this area.”
Dr Sharp recommended arthroscopy. On 14 March 2011, Dr Sharp reported that the surgery showed a complicated tear of the medial meniscus. The applicant’s knee was still slightly swollen and tender but was expected to settle within the next couple of weeks.
On 5 May 2011, Dr Sharp reported that the applicant had been reviewed and it appeared she had injured the insertion to her hamstrings during the fall and this had been overlooked.
A series of progress reports from Dr Sharp to the applicant’s general practitioner indicate that the applicant continued to have pain despite treatment with injections. After consultation with a number of his colleagues, Dr Sharp performed an exploration of the pes anserinus bursa on 21 December 2011. The applicant’s level of pain was unaltered.
Pain medicine physician, Dr Marc Russo saw the applicant on 18 May 2012 and diagnosed persistent neuropathic pain in the infrapatellar branch of the saphenous nerve. Dr Russo said it was likely that traumatic neuralgia explained the persistent pain. A number of treatment recommendations were made.
The applicant was seen by orthopaedic surgeon, Dr Simon Coffey on 8 April 2014. Dr Coffey recorded the history of injury and treatment at the left knee in a manner consistent with the other evidence. Dr Coffey noted the applicant had attended a pain clinic in Newcastle but was allergic to many pain medications including Lyrica and anti-inflammatories. The applicant was unable to be compliant with the physical therapy regime imposed on her.
Dr Coffey diagnosed saphenous neuritis of the left tibia and referred the applicant to pain medicine physician, Dr Tillman Boesel.

Dr Boesel prepared a report to Dr Coffey on 13 August 2014 with regard to the applicant’s left knee injury summarising her symptoms as follows:
“She suffered a work-related injury in 2010. There was a fall with direct trauma to the front of the knee. She subsequently underwent an arthroscopy in Tamworth and then an exploration of the saphenous nerve, also in Tamworth. Following on from this, she ended up being referred to Dr Mark Russo in Newcastle who did perform a peripheral nerve injection in the lower limb and enrolled her in his pain programme. However, the programme was not completed because she had poor response to the injection and had great difficulty with some of the leg-related exercises that were incorporated.
Estelle has been left with severe neuropathic pain in the infra patella region radiating down the anterior shin. The pain seems to be worse with mechanical loading of the leg.”
Dr Boesel recorded that the applicant had trialled a number of medications but she felt her pain had deteriorated significantly. Dr Boesel indicated that he would seek approval for a neurostimulator implant.
A series of progress reports prepared by Dr Boesel for the applicant’s general practitioner followed and confirmed that the applicant continued to experience neuropathic pain. The neurostimulator implant appears to have been inserted following a Certificate of Determination issued by the Workers Compensation Commission on 14 March 2017.
Emergency Department Triage Notes from the Manning Hospital record a presentation on 3 June 2019 as follows:
“Female aged 64 years, 5 months presents with Injury - Limb, Pain - Limb Lower, with R) knee pain, 2 months ago in airplane was hit by the table and now for 10 days it is painful to walk on it, took panadol osteo with nil help, o/e: alert, R) knee is hot not red little swolen, NV intact, wt 73, T 36.9, BP 135/84, S0299RA HR 90 PMHX: HNT, nkda”
A Discharge Referral of the same date records:
“64 yo female presenting to ED with worsening right knee pain. Pain onset 16/4/19 when travelling on aeroplane - the right knee was hit from the chair infront. Pain really bad past 10 days after waking up and unable to walk properly. Pt denies any new trauma, nil falls, nil previous knee injury. Pt reports pain is over medial knee and over patella. Pain at rest= 8/10, 10/10 when walking. Pt reports knee 'Catches' when straightening, nil click. Pt has been taking ibuprofen morning and night, last taken at 8am. Pt feels as though it isnt working. Pt wakes at night when turning due to pain. Denies parasthesia, denies bladder/bowel symptoms, denies recent weight loss. Denies fever, sweats, chills Otherwise well. Denies Gout previously”
The clinical records of the Tobwabba Aboriginal Medical Centre record a consultation with a registered nurse on 14 June 2019 as follows:
“has injured R knee several weeks ago, 2 weeks ago attended mbh and they xrayed with nil obvious fracture and to see gp. taking ibuprofen for pain with little relief, hasnt been able to get in due to pain.”
A consultation with Dr Yin Yin Nyo at the same practice on the same date recorded:
“had right knee injury, hit by seat of chair in the plain, immediately swelling , unable to bear weight, pain getting worsen in three weeks, She presented to ED and X ray done with nil undrlying fracture.”
A CT scan of the right knee performed on 18 June 2019 was reported to show features of early degenerative arthropathy and possible laxity of the anterior cruciate ligament.
On 3 July 2019, Dr Mary Jane Micua recorded:
“CT scan 2 weeks ago Hurt knee 6 weeks ago Went to China, chair pushed back into her knee L knee had meniscal tar, repaired in 2012 Has a neurostimulator on her buttocks, implant, for the knee pain--done by Professor in Western Sydney, Bussel),July 28 Cannot walk properly bee of pain and tends to get imbalanced from it too, barely getting out from home”
On 15 July 2019, Dr Micua recorded:
“Wants to prioritise her R knee issue, has been difficult to walk, limping Unfortunately, no MRI was done as too risky and aparenlty unsafe, the people from Port radiology has spoken to her regarding this L knee had meniscal tear , repaired in 2012 _ Has a neurostimulator on her buttocks,implant, for the knee pain--done by Professor in Western Sydney, Bussel),July 28 8 weeks ago, went to China, apparently a chair formn the plan was pushed hard too much that ,sudden pain noted since then, swelling instantaneous was was noted Stil tried to walk with such but eventually this has gotten worse including the pain Agrred to be referred to ortho for review.”
On the same date Dr Micua prepared a letter of referral to orthopaedic surgeon, Dr Murray Hyde Page stating:
“She has been having worsening R knee pain with associated swelling and inability to fully mobilise due to pain for the last 8 weeks.
Apparently was on a plane to china when the chair before her was pushed back and accidentally hit her R knee hard, acute swelling was noted, she could barely weight bear then. She still tried to walk even with such, but pain has worsened. Was initially seen at MBH for the pain, xray was done, apparently no fracture.”
On 25 July 2019, Dr Hyde Page wrote to Dr Micua with regard to the applicant’s right knee:
“Although she has developed reasonably acute onset of swelling, pain and stiffness in right knee, I had an xray done today that shows she has severe medial compartment osteoarthritis and there is an element of avascular necrosis of the medial femoral condyle. It is possible that the minor injury she had a few months ago simply aggravated this underlying condition and her symptoms are now severe enough that she needs a right TKR.
I note that she is a reasonably healthy lady, who lives with her husband but is being treated for CRPS in the left leg. This has come on since an arthroscopy in 2011 and she had a spinal neuro stimulator inserted a year ago. She appears to be Oxycontin dependent. She is under the care of a Pain Management Specialist in Sydney, Professor Boesel.”
Dr Boesel reviewed the applicant on 30 July 2019 and stated:
“I understand she has significant osteoarthropathy of the R) knee, with knee replacement surgery being contemplated by Dr Hyde Page. Her device is currently helping, however she continues to take Oxycodone 70mg daily. I've been asked to make recommendations regarding her care:
• Knee replacement can go ahead from my perspective.”
On 13 August 2019, the applicant was placed on the Manning Hospital elective surgery waiting list to undergo a total knee replacement under the care of Dr Hyde Page.
Dr Boesel prepared a report for the applicant on 3 December 2019 in which he confirmed that the applicant’s neurostimulator implant was helping her neurogenic left leg pain.
Dr Boesel noted the presence of right knee pathology and the recommendation by Dr Hyde Page that she have a knee arthroplasty. Dr Boesel said he read the x-ray as indicating significant osteoarthritis particularly in the medial compartment. Dr Boesel gave an opinion on the causation of the right knee condition stating:
“It is biomechanically self evident that patients who have painful leg pathology that causes a chronic gait disturbance frequently develop accelerated degeneration cumulatively in the opposite leg. The mechanism for this is overuse, and asymmetrical loading of the joint structure. This process is exactly what occured in Estelle's R) knee over a period of 6 years, leading to the destruction of cartilage and development of Osteoarthritis.
I am of the opinion that the R) knee pathology is a direct consequence of the L) knee injury, and significant delay to the institution of effective pain management to her nerve injury (neurostimulator implant). This delay aggravated the rate of deterioration in the R) knee. Therefore liability for the knee replacement should be accepted by the insurer. Total knee replacement is an accepted evidence based therapy in this situation, and is reasonable and necessary to manage Estelle's condition.”

On 10 March 2020, Dr Hyde Page provided a quote for the right total knee replacement surgery.
An x-ray at the right knee was performed at the request of Dr Hyde Page on 27 April 2020 and showed moderate to severe right knee osteoarthritis.
Records from Manning Base Hospital confirm that a right total knee replacement was performed by Dr Hyde Page on 24 August 2020.
A WorkCover certificate issued by Dr Francis Chen on 8 October 2020 diagnosed:
“Initial meniscal injury to (L) knee complicated by neuropathic pain in (L) knee & leg, developed osteoarthritis in (R) knee as a result requiring total knee replacement”

Dr New

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Charles New, dated 18 September 2020.
Dr New took a history of the injury to the applicant’s left knee and the subsequent treatment that was broadly consistent with the applicant’s statement and contemporaneous evidence. With regard to the symptoms in the applicant’s right knee, Dr New recorded a history as follows:

“Since that time she states that her gait was significantly altered because of the pain in her left knee. She was not using a walking stick at the time but was developing right knee pain. She states that she had not had any significant pain in the right knee prior to the original injury.
This gradually progressed to the point where she attended her general practitioner on 31 July 2019 and was subsequently referred to Dr Murray Hyde Page, a senior orthopaedic surgeon in Taree. He recommended that she undergo a total knee replacement.”

With regard to the cause of the symptoms in the applicant’s right knee, Dr New gave the opinion:
“I concur with Dr Hyde Page that this was a consequential injury in a 60 plus year old lady who was occasionally using a walking stick and had increasing pain on the right hand side to compensate for her left knee pathology.”
Dr New noted that the applicant had been placed on the public hospital waiting list and three weeks earlier, Dr Hyde Page had performed the replacement on the right-hand side.
The applicant described pain to both knees but primarily the left knee. The applicant described the pain as an aching, stabbing sensation exacerbated by walking, changing positions, prolonged sitting and recurrent lifting and bending. Dr New considered x-rays performed at the right knee dated 25 July 2019 and 27 April 2020. Dr New also had the report of a CT scan of the right knee dated 18 June 2019.
In response to questions posed by the applicant’s solicitors, Dr New responded:
“On the history given to me I believe that the patient has developed a consequential condition to her right knee as a result of long term altered gait and reliance on the lateral knee following the left knee injury in 2010.
I concur with Dr Hyde Page that the total knee replacement surgery is reasonable and necessary and she is doing quite well following that surgery which was performed only three weeks ago.
With regard to the funding for this surgery, that is obviously a decision for the legal system. It would be my opinion that she had a consequential injury, having had no prior symptoms of right knee pathology and therefore it is my opinion that both the surgery and the funding is reasonable and necessary.”
Dr New disagreed with the medicolegal opinion given by the respondent’s expert, Dr Richard Powell that the condition at the right knee was constitutional. Dr New said the most important issue was that the patient had not suffered right knee pain until well after the issues associated with her left knee.

Dr Powell

The respondent relies on a medicolegal report prepared by orthopaedic surgeon Dr Richard Powell, dated 18 May 2020.

Dr Powell took a history of the left knee injury and subsequent treatment that was consistent with the other evidence. With regard to the right knee, Dr Powell recorded:
“Approximately 12 months ago she complained of the development of pain in the right knee. There is no specific precipitating incident. At the time she was staying at her daughter's residence in Taree and presented to the local hospital there where x-rays were performed reportedly identifying significant degenerative change. She subsequently was reviewed by a local doctor and referred to Dr Murray Hyde-Page (Orthopaedic Surgeon) who reviewed her in July 2019 and recommended a total knee replacement. She was placed on the public hospital waiting list to have this performed at Taree Hospital.”
Dr Powell recorded an examination in which he noted that the applicant had an antalgic gait with a shortened stance phase on the right side. She had varus malalignment of the right knee and the knee was quite irritable to examine.
Dr Powell diagnosed right knee osteoarthritis. With regard to causation, Dr Powell gave the opinion:
“The right knee osteoarthritis is a constitutional condition. It is not the result of the injuries sustained in March 2010 to the left leg. It does not represent a consequential injury. She is suffering from a primary degenerative disease process involving the right knee. The altered gait pattern associated with the chronic left lower limb issues which include osteoarthritis and saphenous neuralgia is not sufficient to cause advanced tricompartmental osteoarthritis.”

Dr Powell agreed that a total knee replacement was appropriate treatment for the management of advanced knee osteoarthritis. The surgery was required for the management of the underlying degenerative disease process and not as a result of injury sustained to the contralateral knee at work 10 years earlier.

Respondent’s submissions

Mr McMahon noted that the applicant was 66 years old. The applicant had an accepted left knee injury and had received various treatment in response to that injury. The applicant’s case was that she needed to rely on her right leg causing a consequential condition to her right knee. Mr McMahon noted the applicant’s written evidence referring to significant chronic pain and a need to walk by placing most of her weight through her right leg. In short, the applicant claimed that she had experienced problems with altered gait for quite some time and in early 2019, her right knee pain was increasing.
Mr McMahon noted that the clinical records in evidence gave no account of the applicant experiencing altered gait. No account of right knee pain appeared in the clinical records apart from reference to an incident on an aeroplane. Mr McMahon submitted that the Commission would approach the applicant’s evidence with great caution.
Mr McMahon noted that Dr Boesel recorded no history of right knee issues or altered gait until July 2019. Dr Sharp’s reports contained no reference to altered gait and did not corroborate the applicant’s account.
Mr McMahon noted that the clinical record of the applicant’s first consultation as a new patient at Tobwabba Aboriginal Medical Centre on 5 March 2018 cited a long history of various difficulties including orthopaedic complaints. No account of altered gait or right knee pain was included in that record. Mr McMahon submitted that one might expect to see such complaints having regard to the applicant’s evidence.
Mr McMahon submitted that the first complaint of right knee pain appeared in the Emergency Department records of the Manning Hospital on 3 June 2019. This document referred to a presentation with worsening right knee pain. There was an “onset” of pain on 16 April 2019 when travelling on an aeroplane. The applicant’s right knee was hit by the chair in front and for the last 10 days it had been painful to walk on. The applicant denied any previous knee injury.
Mr McMahon submitted that the reference to an onset of pain on 16 April 2019 when travelling on an aeroplane indicated the commencement or start of pain symptoms in the right knee occurred on that date. The record did not refer to limping for a long time or any altered gait due to the left knee injury. Nothing in that record suggested a gradual increase in pain over time. On the basis of this evidence, Mr McMahon submitted that the Commission would have serious concerns around the nature of the pain, when it started and what might have caused it. The Commission would not accept the applicant’s account. The history described by the applicant was not supported by the clinical evidence.
Mr McMahon noted that Dr Micua also made a record of worsening knee pain for the last eight weeks and made reference to the plane event. The applicant described acute swelling and said she could barely weight bear after it. No reference was made to any limp or altered gait or the development of pain over time.
Dr Hyde Page took a history of the applicant developing a reasonably acute onset of swelling, pain and stiffness in the right knee. Dr Hyde Page said that it was possible that the minor injury the applicant had received a few months ago had aggravated an underlying condition. The applicant’s symptoms were now severe enough that she required a total knee replacement.

Mr McMahon submitted that Dr Hyde Page in this report did not identify a history of altered gait or a long history of knee complaints as would be expected.

Mr McMahon submitted that there was no doubt that the applicant had osteoarthritic change at her right knee. Mr McMahon submitted that there was also no doubt that the osteoarthritic change required the surgery. There was, however, no evidence that the work injury had materially contributed to the need for surgery.

Dr McMahon submitted that the highpoint of the applicant’s case was the evidence of
Dr Boesel. Dr Boesel considered that it was biomechanically self-evident that patients who have painful leg pathology causing chronic gait disturbance frequently develop accelerated degeneration in the opposite leg. Dr Boesel considered that this is what had occurred in the applicant’s case over a period of six years. Mr McMahon submitted that Dr Boesel did not, however, give consideration to the history of an acute onset of pain in the right knee following the plane incident.
Mr McMahon submitted that it was highly unusual that a gradual onset of pain was not identified in the other treating evidence. Dr Boesel would need to at least consider the onset of pain in the incident in the plane in 2019 in order for his opinion to be accepted.

Mr McMahon also referred to Dr New’s report. Dr New recorded that the applicant experienced a gradual onset of right knee pain which progressed to the point that the applicant required a total knee replacement. Mr McMahon submitted that Dr New’s history could not be correct noting the Manning Hospital clinical records. Dr New said he concurred with an opinion given by Dr Hyde Page that the applicant had a consequential condition.
Mr McMahon submitted, however, that that opinion did not exist. There was no evidence of an opinion of that nature being given by Dr Hyde Page. There was no corroboration of a gradual onset of symptoms in the clinical material. Dr New noted a complex gait pattern, however, his examination occurred after the total knee replacement had taken place.
Dr New’s opinion was dependent upon the history given to him but the history given was incorrect.

Mr McMahon submitted that the Commission would have concerns regarding the credibility and weight to be afforded to the applicant’s statement. In a case such as this, one would normally see complaints of increasingly severe knee symptoms to a general practitioner or specialist. No such evidence existed in this case. The applicant’s evidence bore no relationship to the clinical notes or the assessment by Dr Hyde Page. The high points of the applicant’s case were the opinions of Drs New and Boesel but neither had a correct history.

Mr McMahon submitted that it was the onset of symptoms following the plane incident which caused the need for the total knee replacement.

Mr McMahon noted that Dr Powell also did not have a correct history in that he did not identify an acute trauma to the right knee. Dr Powell submitted that there was no doubt that at age 66, there would be some degenerative change in the applicant’s knee.

Mr McMahon submitted that due to the vast mismatch between the applicant’s account and the clinical picture, the Commission would not be satisfied on the balance of probabilities that the applicant had sustained a consequential condition at her right knee as a result of the left knee injury.

Applicant’s submissions

Mr Tanner submitted that it was unclear whether the respondent’s case was that the applicant had sustained an injury on an aeroplane or that she simply had a constitutional condition at her right knee, neither of which would be work-related. Mr Tanner noted that no expert opinion had been provided in support of either case.
Mr Tanner submitted that the investigations revealed that the applicant had osteoarthritis at her right knee which was a long-term condition. The question was whether there was a contribution to that condition by the left knee injury.

Mr Tanner submitted that Dr Boesel had the greatest knowledge of the applicant’s condition having treated her for many years. Dr Boesel had diagnosed severe infra patella neuralgia. Mr Tanner submitted that it was a matter of common sense that the severe pain in the applicant’s left leg would cause an alteration of gait and symptoms in the right leg.

Mr Tanner submitted that it could not be suggested that the applicant would have a normal gait in light of her left knee condition. References were made in the medical evidence to a neurostimulator trial. There were delays in securing that treatment. In the period from August 2014 to July 2018 the applicant had to battle on with a significantly injured left leg.

Mr Tanner submitted that the applicant had herself given evidence of favouring her injured leg. Although there was no clinical record of altered gait, the question for the Commission was whether, as a matter of common sense the applicant would have altered her gait.
Dr Powell had referred to an antalgic gait with shortened stance in his report of 18 May 2020.
Dr Boesel also described the mechanism by which a consequential condition had occurred. Dr Boesel was the applicant’s treating specialist and was able to speak with knowledge of the applicant’s condition over the course of many years.
Both the applicant and Dr Boesel confirmed that she walked with an altered gait. Dr Powell accepted there was an altered gait. There was no evidence of right knee symptoms prior to 2010.

Mr Tanner described the incident on the aeroplane as a “red herring” and submitted that it could not account for the extent of degeneration which was revealed on radiological investigation. There was no medicolegal evidence that the condition resulted from the plane incident.
Mr Tanner referred me to the authority in Murphy v Allity Management Services Pty Ltd [2] and submitted that it was possible for the condition to have multiple causes. The incident on the plane was irrelevant.
[2] [2015] NSWWCCPD 49.
Mr Tanner submitted that all the applicant had to establish was that the injury materially contributed to the need for surgery. The applicant had provided evidence which established that. Dr Powell’s opinion was unreliable. There was a clear causal connection between the injury and the right knee condition.
The applicant sought relief pursuant to s 60 of the 1987 Act for the costs of and incidental to the right total knee replacement performed on 24 August 2020.

Respondent’s submissions in reply

Mr McMahon noted the applicant’s submission with regard to the lack of medicolegal opinion on the causative effect of the plane incident but noted that Dr Hyde Page had given an opinion that following the incident, the applicant’s symptoms were now severe enough to require a total knee replacement.
Mr McMahon submitted that Dr Powell’s examination and observation of altered gait occurred after the plane incident.
Mr McMahon submitted that that the applicant’s evidence needed to be supported by other evidence. It was not sufficient to rely on common sense alone. Dr Boesel and Dr New both had an incorrect history. Dr Boesel did not take a history of altered gait previously. To find otherwise would require a tortured reading of Dr Boesel’s report.
Mr McMahon said it was clear that the applicant had an underlying constitutional condition. The primary indicator for a right total knee replacement was pain. The contemporaneous medical evidence revealed that the applicant’s pain started following the direct blow on the plane.

FINDINGS AND REASONS

Consequential condition

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:

“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i)      a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)     the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

It has been accepted by the respondent that the applicant sustained an “injury” pursuant to s 4(a) of the 1987 Act to her left knee on 12 March 2010. What requires determination is whether the applicant has sustained a consequential condition at her right knee as a result of the injury to her left knee.

It is not necessary for the applicant to establish that any right knee condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[3] observed at [45]-[46]:

“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”

[3] [2009] NSWWCCPD 134.

In Bouchmouni v Bakhos Matta t/as Western Red Services[4], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[4] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5], where Kirby P said (at 461) (Sheller and Powell JJA agreeing):

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[5] (1994) 10 NSWCCR 796 at [810].

His Honour said at 463–464:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

It is the applicant who bears the onus of establishing, on the balance of probabilities, that a consequential condition at her right knee has been sustained.
The applicant has given a clear account of her left knee injury and the subsequent treatment of that injury, which is corroborated by the contemporaneous medical evidence before me. I am satisfied on the evidence that despite multiple surgeries, injections and numerous other forms of conservative treatment over the eight years that followed the injury, the applicant continued to experience significant neuropathic pain.
More recently, the applicant’s left knee pain has been treated by Dr Boesel with a neurostimulator implant. That appears to have been effective in improving the applicant’s pain to some degree, although symptoms in the left knee remained prominent at the time of Dr New’s September 2020 report. The applicant described to Dr New an aching, stabbing sensation exacerbated by walking, changing positions, prolonged sitting and recurrent lifting and bending at the left knee.
There is reference in the contemporaneous treating evidence to the applicant’s left knee symptoms increasing with movement and mechanical loading. This was noted, for example, in Dr Sharp’s early reports and in Dr Boesel’s 13 August 2014 report to Dr Coffey. I accept, as a matter of common sense, that the applicant’s significant, persisting left knee symptoms were likely to have caused some alteration in the applicant’s biomechanics.
It is the applicant’s evidence that this is in fact what happened. The applicant has stated that she constantly placed as much weight as possible on her right leg. Even following receipt of the neurostimulator implant, the applicant still had difficulty putting weight on her left leg and so continued to walk by placing the majority of her weight on her right leg. The applicant said that over time, walking caused an increase in pain in both legs and the applicant became very limited when walking.

As the respondent points out, however, there is no direct reference to limping or alteration of gait or biomechanics in the treating medical evidence. Nor is there reference in the treating medical evidence to any symptoms in the applicant’s right knee until the applicant presented to the Manning Hospital on 3 June 2019.
I accept, as noted by Mr McMahon that a detailed clinical record was made following the applicant’s initial consultation at Tobwabba Aboriginal Medical Centre on 5 March 2018. Reference was made in that clinical record to a previous injury to the applicant’s coccyx, consultations with pain specialists and the use of OxyContin. The applicant requested a prescription for OxyContin which was not issued. In a second consultation, reference was made to the applicant having had a neurostimulator inserted for the pain in her left knee under workers compensation. No reference is made in either of these lengthy clinical records, or any other clinical records kept by the practice until 14 June 2019, to right knee symptoms.
The first reference to right knee symptoms in the treating medical evidence before me appears in the records of Manning Hospital. On 3 June 2019, the applicant is recorded to have described an incident on an aeroplane two months earlier when the right knee was struck by the chair in front. The applicant reported, however, that her pain had been “really bad” for the past 10 days after waking up. The applicant was unable to walk properly.
The incident on the aeroplane was also a feature in the clinical records of the applicant’s general practitioners in June and July 2019. Those records indicate that the applicant experienced sudden pain, swelling and difficulty weight-bearing following the injury on the aeroplane. This had eventually gotten worse. The clinical records during this period also made reference to the left knee injury and treatment of that injury.
This same history was provided to Dr Hyde Page by Dr Micua in her letter of referral. In his report back to Dr Micua, Dr Hyde Page described a “reasonably acute onset of swelling, pain and stiffness in right knee” but said the x-ray investigations showed severe medial compartment osteoarthritis and an element of avascular necrosis of the medial femoral condyle. Dr Hyde Page said it was possible that the minor injury the applicant had a few months ago simply aggravated this underlying condition and her symptoms were now severe enough to warrant a total knee replacement.
The references to an “acute” onset of symptoms and a minor aggravating injury by Dr Hyde Page must, in the context of the letter of referral by Dr Micua, be a reference to the injury occurring on an aeroplane several months earlier. I can find no opinion in the reports or clinical records of Dr Hyde Page as to the impact of the left knee injury on the pathology in the right knee revealed on x-ray. There is no indication of a gradual onset of symptoms in the right knee or leg prior to the incident on the aeroplane. Although it is clear that Dr Hyde Page did not consider the pathology shown on x-ray to have been caused by the incident on the aeroplane, he has given an opinion that it was aggravated by the incident on the aeroplane. Dr Hyde Page makes no reference to any other factor contributing to the applicant’s increasingly severe right knee symptoms or the need for the total knee replacement surgery. I do not, therefore, find any direct support for there being a consequential right knee condition in the evidence from Dr Hyde Page.
The applicant’s own evidence confirms that her right knee was injured on an aeroplane in early 2019. The applicant also confirms that she told Dr Hyde Page about this incident. I am not satisfied, however, that the applicant’s evidence that Dr Hyde Page considered this to be a “temporary” aggravation is an accurate representation of the reports of Dr Hyde Page before me. Dr Hyde Page did consider the injury to be “minor” but I can see nothing in Dr Hyde Page’s reports to indicate that he considered that the aggravation caused by the plane injury to be “temporary”.
The treating evidence up until this point does not, therefore, provide direct support for the applicant’s claim that she experienced a gradual onset of pain in the right knee.
The applicant gives no real indication of the duration or severity of her symptoms after the incident on the aeroplane in her own statement. There is, however, no evidence of the applicant presenting herself for treatment of the right knee immediately following the incident. The presentation to Manning Hospital occurred some two months later and described an intensification of symptoms in the previous 10 days.
Dr Boesel has given an emphatic opinion in favour of there being a consequential condition at the right knee as a result of the injury to the left knee. Whilst I accept that Dr Boesel had been the applicant’s pain specialist for a number of years following her left knee injury there is no evidence that the applicant had previously complained to Dr Boesel of any right knee symptoms. Dr Boesel appears to have first become aware of the applicant’s right knee condition on 30 July 2019 after the applicant had consulted Dr Hyde Page. Dr Hyde Page said he had given the applicant a handwritten letter to give to Dr Boesel for an opinion on the appropriateness of the proposed total knee replacement in the context of the neurostimulator implant. Dr Boesel considered the surgery could proceed.
Dr Boesel’s opinion on the causal relationship between the condition in the applicant’s right knee was given later in his report of 3 December 2019. Dr Boesel gave an opinion that the applicant developed a chronic gait disturbance as a result of her left knee injury and the significant delay to the institution of pain management to her nerve injury. Whilst a chronic gait disturbance is not recorded in Dr Boesel’s earlier treating reports, this would be something within Dr Boesel’s knowledge, having treated the left knee symptoms for many years. Dr Boesel has given a clear opinion that this accelerated the degeneration cumulatively in the opposite leg, leading to the destruction of cartilage and development of osteoarthritis.
Dr Boesel does not, however, appear to have been given any history of the acute injury to the right knee on the aeroplane in April 2019. Similarly, no history of the injury to the right knee on the aeroplane in April 2019 appears to have been given to either of the medicolegal experts.
Although Mr Tanner has described the incident on the aeroplane as a “red herring”, I find this omission to be significant. Contrary to the applicant’s evidence, the clinical records suggest that the injury on the aeroplane was the initiating event for the onset of symptoms in the right knee. That injury was considered to be significant enough by Dr Micua to raise it in her referral to Dr Hyde Page. It would have been appropriate for it to have also been mentioned to Dr New and Dr Powell. The apparent failure of the applicant to reveal this incident to the medicolegal experts and Dr Boesel raises serious questions around the weight to be given to their opinions, and in particular whether there is a “fair climate” for the acceptance of those opinions[6].
[6] See Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
The history recorded by an expert does not have to correspond with complete precision to the proposition on which the opinion is based. In Hancock v East Coast Timber Products Pty Ltd[7]; Beazley JA (Giles and Tobias JJA agreeing) observed that a deficiency in one part of an expert’s evidence “may be made good by other material, either in another report or in oral evidence” (at [92]).
[7] [2011] NSWCA 11.
It is necessary, therefore, to weigh all the evidence. As indicated above, I am satisfied that the applicant experienced significant and persisting neuropathic pain in her left knee following the injury in 2010. There is contemporaneous medical evidence that the applicant reported that her pain was made worse with movement, walking and mechanical load. I therefore accept as credible, the applicant’s evidence that she had difficulty putting weight on her left leg and so continued to walk by placing the majority of her weight on her right leg.
Dr Boesel and Dr New have both given opinions that this long term altered gait and reliance on the contralateral knee following the left knee injury in 2010 would give rise to a condition at the right knee, for which a total knee replacement was reasonably necessary. Dr Boesel’s explanation is more thorough than that given by Dr New. Dr Boesel explained that the asymmetrical loading of the joint structure, over a period of six years, would lead to the destruction of cartilage and the development of osteoarthritis. The delay in instituting effective pain management for the left knee injury would have accelerated the rate of deterioration in the right knee.
Dr Hyde Page has given the opinion that the applicant had severe medial compartment osteoarthritis and an element of avascular necrosis of the medial femoral condyle at the right knee, as revealed on x-ray.
As indicated above, Dr Hyde Page has not suggested that this pathology was caused by the incident on the aeroplane. No opinion at all is offered by Dr Hyde Page as to the cause of the extent of the underlying pathology at the right knee. Although Dr Hyde Page found the pathology was aggravated by the minor incident on the aeroplane I am satisfied that this is not necessarily inconsistent with there also having been a destruction of cartilage and development of osteoarthritis which deteriorated more rapidly due to the asymmetrical loading of the joint structure over an extended period, resulting from the left knee injury.
It is uncontroversial that there can be multiple causes of a condition. In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:
“[57] …That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The 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.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[8] [2015] NSWWCCPD 49.
The incident on the aeroplane appears to have been a very significant factor in the need for the surgery performed by Dr Hyde Page, having apparently triggered an acute onset of symptoms in that knee. However, I am also satisfied, reading the evidence as a whole that there is a fair climate for the acceptance of the opinions expressed by Dr Boesel and Dr New that the underlying pathology in the right knee would have been caused or at least accelerated by the alteration biomechanics caused by the left knee injury.
It is necessary to also consider the opinion given by Dr Powell. Dr Powell considered that the condition at the applicant’s right knee was purely constitutional. Dr Powell does appear to accept that the applicant would have had an altered gait pattern associated with her chronic left lower limb issues which included osteoarthritis and saphenous neuralgia. Dr Powell did not, however, consider that this would be sufficient to cause advanced tricompartmental osteoarthritis.
Dr Powell’s opinion in this regard stands in opposition to the opinions expressed by both
Dr Boesel and Dr New. Dr Powell also does not consider whether there could have been an acceleration or deterioration of constitutional osteoarthritis as a result of the altered gait pattern. It is not necessary for the applicant to establish that the left knee injury was the only or the main cause of the advanced osteoarthritis in the right knee. It is sufficient if the condition and the need for a total knee replacement at the right knee have “resulted from” the left knee injury.
After careful consideration of all the evidence, I am satisfied on the balance of probabilities that the applicant did sustain a consequential condition at her right knee in the nature of an acceleration or deterioration of osteoarthritis as a result of the left knee injury. I am further satisfied that this condition materially contributed to the need for a right total knee replacement.
There is no dispute that the total knee replacement surgery was reasonably necessary treatment for the applicant’s right knee condition. I am satisfied that the surgery was reasonably necessary as a result of the left knee injury on 12 March 2010.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
As the surgery performed by Dr Hyde Page involved the provision of an artificial aid, s 59A of the 1987 Act does not apply to prevent compensation under s 60 being payable in relation to the costs of and incidental to the surgery[9].
[9] See Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281.
There will be an order for the respondent to pay the costs of and incidental to the right total knee replacement surgery performed by Dr Hyde Page on 24 August 2020.

SUMMARY

I am satisfied on the balance of probabilities that the applicant sustained a consequential condition at her right knee as a result of the left knee injury on 12 March 2010.
The right total knee replacement surgery performed by Dr Hyde Page on 24 August 2020 was reasonably necessary as a result of the left knee injury on 12 March 2010.

The respondent to pay the costs of and incidental to the right total knee replacement surgery performed by Dr Hyde Page on 24 August 2020 pursuant to s 60 of the 1987 Act.

Rachel Homan
MEMBER

12 March 2021