Mooney v Waverley Council

[2021] NSWPIC 81

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Mooney v Waverley Council [2021] NSWPIC 81

APPLICANT:

Wayne Robert Mooney

RESPONDENT:

Waverley Council

MEMBER:

Ms Deborah Moore

DATE OF DECISION:

15 April 2021

CATCHWORDS:

WORKERS COMPENSATION- Accepted two injuries to left knee; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 applied; the applicant has made only “one claim”, namely, a claim for permanent impairment, which impairment has resulted from the two events identified; issue in dispute a consequential injury to the right hip; notwithstanding some other medical issues, evidence supported a finding of a consequential injury to the right hip, due to the left knee injuries and subsequent knee replacement surgery; Held- permanent impairment dispute in respect of the left lower extremity (knee) and the right lower extremity (hip) remitted for referral to a Medical Assessor.

DETERMINATIONS MADE:

1.     The applicant suffered injuries to his left lower extremity (knee) on 14 February 2012 and 26 July 2018 arising out of and in the course of his employment with the respondent.

2.     As a result of those injuries, the applicant suffered a consequential medical condition of his right hip.

3.     The permanent impairment dispute in respect of the left lower extremity (knee) and the right lower extremity (hip) is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment in respect of the left lower extremity (knee) resulting from injuries on 14 February 2012 and 26 July 2018 and a consequential injury to the right hip.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Wayne Robert Mooney, was employed by the respondent, Waverley Council, as a senior parking officer.

2. On 14 February 2012 in the course of his duties he stumbled and injured his left knee. He saw his doctor, had an x-ray and also an MRI scan. He then came under the care of an Orthopaedic Surgeon who undertook a left knee arthroscopy.

3. He said that in the years that followed, he experienced ongoing pain, stiffness, aching and a periodic swelling affecting his left knee.

4. On 26 July 2018, again in the course of his duties, he sustained a further injury to his left knee when he attempted to rise from a seated position when he weight-bore on his left knee.

5. He subsequently underwent left knee replacement surgery under the care of Dr Viswanathan on 11 June 2019.

6. He also said that as a result of his abnormal gait following his knee injuries, he sustained a consequential injury to his right hip.

7. By an Application to Resolve a Dispute (the Application) registered in the Commission on 15 January 2021 he sought lump sum compensation of 23% whole person impairment (WPI) being 20% WPI in respect of his left lower extremity (knee) and 4% WPI in respect of his right lower extremity (hip).

8. Liability in respect of the left knee injuries was accepted by the respondent’s insurer but denied in respect of any consequential injury to the right hip.

9. In a s 78 Notice dated 23 October 2020 the insurer said:

   “We note that you rely upon the report of Dr Oates dated 7 July 2020 to claim lump sum compensation equating to 23% WPI as a result of your work- related injuries on 14 February 2012 and 26 July 2018.
   StateCover does not dispute that you suffered injury to your left knee on the above dates, however, … we rely upon Dr Rimmer’s assessment of 0% WPI in relation to your left knee.
   In relation to the claims for a consequential condition in your right hip… we again rely upon the opinion of Dr Rimmer to dispute that claim, noting that the doctor records complaints of such symptoms dating as far back as 2014…”

ISSUES FOR DETERMINATION

1. Initially at the hearing on 1 April 2021, the parties agreed that the issue in dispute was the consequential injury to the right hip, noting that the claim in respect of the left knee could be the subject of referral to a Medical Assessor.

2. Subsequently, the respondent sought leave to make an application pursuant to s 289A of the 1998 Act to dispute that both injuries should be the subject of assessment, stating that the pathology arose in the initial injury, and only that injury should be referred for assessment.

3. For reasons given orally at the hearing, that application was rejected, principally on the basis of the late notice of such a dispute and the prejudice suffered by the applicant if such a dispute were accepted.

4. In any event, in accordance with the principles enunciated in Trustees of the Roman CatholicChurch for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 the applicant has made only “one claim”, namely, a claim for permanent impairment, which impairment has resulted from the two events identified.

5. Consequently, the only issue to be determined is that of the consequential injury to the right hip.

PROCEDURE BEFORE THE COMMISSION

1. 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

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

(a)    The Application and attached documents;

(b)    Reply and attached documents.

THE EVIDENCE DISCUSSED

1. In his initial statement dated 1 March 2019, the applicant said:

“Prior to 14th February 2012 I had no problems with my left knee…
In the years that followed, I experienced ongoing pain, stiffness, aching and also a periodic swelling affecting my left knee.
Subsequently on 26 July 2018…I stood up from my chair and as I weight bore on my left foot, I felt sharp pain in my left knee.”

1. The balance of that statement dealt with issues regarding weekly benefits and proposed surgery.

2. In a further statement dated 14 August 2020 the applicant said:

   “In addition to the issues affecting my left knee, I have also experienced pain and restrictions affecting my right knee and also my right hip. After the original injury to my left knee on 14 February 2012, I began walking with a limp and as the years went by this limp became worse. To the best of my recollection, I began suffering pain affecting my right knee and also my right hip perhaps as early as 2012. Initially it was not too bad. However, as the years went by, the pain in my right knee and right hip became worse. I don't recall having any treatment or investigation from my right hip or my right knee until after the further injury to my left knee on 26 July 2018. After that injury, my limping became much worse, and I noticed the pain and restriction affecting my right knee and right hip became much worse.
   I recall raising the issues in relation to my right hip and my right knee with Dr Viswanathan in 2019 and Dr Viswanathan arranged the scans for both my right knee and my right hip and also referred me for a guided ultrasound for a cortisone injection to my right hip.
   I continue to experience ongoing pain and restriction affecting both my right hip on my right knee. At this stage, I have elected not to undergo surgery for my right hip or the right knee.
   I confirm I underwent left knee replacement under the care of Dr Viswanathan at Campbelltown Private Hospital on 11 June 2019. I have remained off work and my employment has been terminated…
   The pain affecting my knees and my hip is made much worse with any prolonged standing or sitting or walking or if I have to stoop or bend down. I find I am having ta adjust myself if I'm sitting for a long period and when lying in bed.”

3. Relevant to the issue in dispute are the reports of Dr Viswanathan who first saw the applicant in September 2018.

1. In his initial report dated 5 September 2018 he said:

   “Wayne is a 60 year old man who works as a parking officer for Waverley Council and works in Bondi. In late May early June he had an injury while getting up from a seated position in a car. His main complaint is a sensation of pain and instability in his left knee. He has a family history of what he claims to be lymphedema which he says he has passed on to his children. He certainly has evidence of lymphedema involving his right lower limb.
   With respect to his left lower limb he has pain in the medial compartment. His MRl's are suggestive of medial compartment arthritis. He has had a past medial meniscectomy performed in 2012 in the eastern suburbs. His ACL certainly feels lax…”

2. Subsequent reports dated 12 September 2018, 26 October 2018, 28 November 2018 and 13 May 2019 dealt with the left knee condition and request for surgery which was initially denied by the insurer but subsequently approved.

1. Left knee replacement surgery was performed on 11 June 2019.

1. In a report dated 12 August 2019 Dr Viswanathan said:

   “Wayne is now eight weeks or so since a left knee replacement. He is doing very well an excellent range of movement out fully straight to about 120 degrees stable feeling knee.
   He is having some issues with his contralateral knee and problems with his back and his hips so I have decided to check them as well…”

1. On 25 September 2019 Dr Viswanathan wrote:

“Wayne returned for review at about the three- month mark post- surgery. He felt like he twisted his knee and had a bit of pain…
In rooms today he has an excellent range of movement. X-rays are very satisfactory. He is out fully straight and he can bend to 130 degrees. His right knee shows significant arthritis and this appears to be slowing him down as well…”

1. On 20 January 2020 Dr Viswanathan wrote:

“Wayne returned for review. He is continuing to have issues with his right hip and right knee. As you know his right tibia has been affected by lymphedema and chronic swelling which he has had since birth. With his knee he has been having issues with ongoing pain. With his right hip he complains of a stabbing pain over his right trochanteric bursa and lower aspect of his hip. He doesn't have much in the way of hip pain. His hip actually has a reasonable range of movement and his knee has a limited range of movement with a very tender medial compartment.
I have asked him to have some repeat imaging of his knee. I have asked him to have an MRI of his hip looking for a hip arthritis and trochanteric bursitis and I will review him with the results of all of those…”

1. On 5 February 2020 Dr Viswanathan wrote:

“With respect to his right knee he has fairly advanced arthritis in his right knee and the lymphedema which is going to be problematic, He has some early hip arthritis and some trochanteric bursitis which is fairly mild so I have suggested a cortisone injection into his right hip.
I think realistically his right hip and right knee have obviously been stirred up by the fact that he has been protecting his left knee during his rehab…”

1. In a report dated 23 March 2020 addressed to the insurer, Dr Viswanathan said:

“I don't think his right knee arthritis is due to his left knee replacement surgery. However I do believe that because he has been having to put all his weight through his right knee while recovering from his left knee his right knee arthritis and pain may have been exacerbated.
I think his right knee and hip are due to arthritis in his right knee and hip. It has certainly have been exacerbated by the surgery in his left knee because he has had to put all of his weight through his right side…”

1. On 8 April 2020 Dr Viswanathan wrote:

“Wayne returned for review. He is actually doing quite well with his left knee however his right knee is continuing to trouble him. He also had an injection of the trochanteric bursitis right hip and it appears to have helped him a little bit but hasn't completely resolved the situation.
At this point we appear to be at a little bit of a deadlock. We can't really do a right knee replacement because of his lymphedema there is a high risk of infection and stiffness in that knee so we may have to delay that until it is unavoidable…”

1. There is also a report from Dr Laurent Wallace dated 17 September 2020. He said:

   “Thank you for your kind referral of Wayne Mooney, who was seen for an Initial consultation today.
   
   
   Presenting Symptom 1. Left knee pain. 2. Right knee pain. 3. Right hip pain greater than left hip pain.
   
   
   Wayne has had left knee [sic] after a trip at work. In 2012 he had an arlhroscopy, which provided some benefit. In 2018 he twisted the knee again at work and ended up having a left total knee replacement with Dr Vlswanathan. This gave him some benefit, but since shortly after then he has developed significant right knee and hip problems which he puts down to favouring the right side because of his longstanding left knee pain…
   Lymphedema affecting the right lower limb, worse now that he has stopped working and walking so much…
   
   
   Impression:
   
   

   1. Left knee post procedural pain after left total knee replacement in 2019.

   2. Right knee osteoarthritis secondary to left knee Injury In 2012 and 2018.

   3. Right greater than left hip pain, not investigated today as they are much less problematic than the knees…”

2. The applicant was seen by Dr Oates at the request of his solicitor on 18 January 2019. In a report dated 22 January 2019, Dr Oates noted the left knee injuries.

3. He added:

   “In 2016, he had a fracture of the right tibia and ankle joint dislocation for which he received orthopaedic treatment. He was born with congenital lymphedema in both lower legs and on the right side this has been worse since the motorcycle accident of 2016…
   There was laxity in the ACL on testing in the left knee, but the right knee joint was stable. Resisted straight leg raising, left was weaker than right…
   A total left knee replacement is considered to be reasonably necessary as a consequence of the injury to his left knee arising from 14 February 2012, with an exacerbation effect from the more minor incident of 26 July 2018…”

4. There was no mention at that stage of any right hip complaints.

1. In a further report dated 7 July 2020 Dr Oates said:

   “He had noticed gradual onset of infrapatellar right knee pain since about 2014, after he would jar the knee at work, and then it would ache and swell for some days, which worsened after the original left knee injury because of increased weight-bearing on the right side.
   The right hip was not troublesome until later when he developed lateral pain, indicating the trochanteric bursal area, of gradual onset just over the last two years since 2018 and it has progressively worsened since then.
    Liability was eventually accepted for left knee total knee replacement…
   He said that surgery did help improve the stability in his knee and he got some improvement in flexion range but still gets a lot of pain in the knee, similar in severity to the pre-operative status. He has numbness lateral to the operative scar. He also has right knee pain and right hip pain and some aching across the lower back, which is worse with prolonged static standing, such as cooking at home.
   He also gets increased right hip and low back pain after walking. He has some less frequent left hip discomfort and ongoing right knee problems…
   At specialist review on 20 January 2020, he was complaining of right hip and right knee pain, with stabbing pain over the greater trochanter at the right hip but he had reasonable hip range of movement but limited right knee range of movement with medial compartment tenderness of moderately severe degree.
   He was sent for an MRI scan of the right hip and x-ray, and also x-ray of the right knee. This showed fairly advanced osteoarthritis in the right knee and mild osteoarthritis and trochanteric bursitis in the right hip. He had an ultrasound-guided right hip trochanteric bursal cortisone injection which helped for one or two weeks only…
   Dr Viswanathan believed that the right hip and right knee had been exacerbated by additional weightbearing on the right leg over a long period of time because of continuing pain in the left knee, both before and after surgery, causing him to have to un-weight the left leg. The specialist agreed that the right knee osteoarthritis is constitutional…
   There is moderate dull pain over the lateral aspect of the right hip on the side of the hip after he has been sitting down too long. He will get a stab of pain lateral and slightly to the posterior aspect of the right hip when he walks at times. This makes him limp…
   In 2016, he had fracture of right tibia and ankle joint dislocation treated orthopaedically. He was born with congenital lymphoedema in both ankles and feet area, and on the right side this had extended proximally up the lower leg and into the knee and thigh area since the motorcycle accident of 2016.
   In the motorcycle accident of 2016, he fractured his right fibula and disrupted the right ankle syndesmosis. After the leg plaster cast was removed, the right leg started swelling up and he had some cellulitis in the right foot, but the right leg swelling gradually reduced after he returned to work because he was walking a lot at work using the calf muscle pump, which was getting rid of the fluid. Prior to the motorcycle accident, he only would get some swelling in both feet and in the right ankle from the congenital lymphoedema.”

2. Dr Oates diagnosed “Aggravation of pre-existing post-traumatic degenerative changes in the medial compartment of the left knee with partial anterior cruciate ligament tear, with consequential overuse strain injury to the right hip (trochanteric bursitis) and right knee, with evidence given of intermittent symptoms in the right knee dating from about 2014 and in the right hip from approximately 2018.”

3. He added:

   “The injury of 14 February 2012 is, in my opinion, the main contributing factor resulting in acceleration of the rate of development of degenerative changes in the articular cartilage of the medial compartment of the left knee, and this accident has also directly caused a tear of the medial meniscus, resulting in the need for arthroscopic partial medial meniscectomy, which of itself also serves as a factor accelerating development of post-traumatic degenerative changes in the medial compartment of this knee.
   There has been subsequent development of instability in the left knee attributable to a probable partial tear/strain of the anterior cruciate ligament.
   The second injury of July 2018 has also materially contributed to the deterioration in the left knee condition, extending the sprain of the anterior cruciate ligament which occurred in the first injury to a partial-thickness tear of the ligament, as well as likely causing a re-tear of the medial meniscus, although this specific aspect is not commented on in the operative notes of 11 June 2019, at which time a knee replacement was performed.
   I consider the right knee is a consequential injury which has occurred gradually over a period of time of increased weight-bearing on the right leg because of the need to favour or un-weight the continuously painful left knee over a long period of time.
   The right knee has been symptomatic from about two years after the initial injury to the left knee of 14 February 2012 and has continued gradually worsening over time. The right hip has similarly developed as a consequential injury in my opinion over about the last two years, because of the need to alter weight-bearing distribution during gait, with the development of a symptomatic trochanteric bursitis affecting the right hip…”

1. The respondent arranged for the applicant to be examined by Dr Rimmer. In a report dated 26 August 2020 he said:

“Date of given injury: 26 July 2018.
The details of which he describes is an incident at work when he stood up from a seated position and in so doing twisted on his left knee. By the following day he noticed significant pain and swelling. He then sought medical attention through his general practitioner. He was assigned off work for six days. He then returned on suitable duties. He was referred for investigations of the left knee. He was then referred to Dr Viswanathan (orthopaedic surgeon) on 12 September 2018. Dr Viswanathan recommended a left total knee replacement.

Since last assessed, he has undergone a left total knee replacement on 11 June 2019. He describes a post-operative superficial wound infection. He had post-operative physiotherapy, hydrotherapy and exercise physiology… “

1. Under the heading “current symptoms” Dr Rimmer only noted complaints in the left knee.

2. When asked to “obtain a history of all injuries or significant episodes of pain affecting the worker’s left knee, right knee and right hip…” Dr Rimmer merely said: “Given in the body of my report.”

3. Dr Rimmer opined:

   “Degenerative osteoarthritis of the left knee, which is constitutional.
   A trivial aggravation of pre-existing degenerative osteoarthritis i.e. standing from a seated position.”

1. When asked: “Obtain a history from the worker as the development of the alleged consequential conditions in his right hip and right knee” Dr Rimmer said:

   “These are two separate incidents. He claims to have had right hip (trochanteric bursitis) pain and right knee pain dating pre-work injury of 2018 i.e. dating back to 2014.
   He does not have alleged consequential conditions of the right hip and right knee. These are both pre-existing i.e. dating as far back as 2014 in the clinical notes…
   Today’s examination of the right hip is normal as confirmed by the x-ray of his right hip dated 30 January 2020…”

1. When asked to comment upon the opinion of Dr Oates, Dr Rimmer said: “I have no opinion regarding Dr Oates’ opinion.”

1. There are no earlier reports from Dr Rimmer although it is clear that he examined the applicant prior to September 2020.

1. In a further report dated 12 October 2020, Dr Rimmer said:

   “The date of injury which I assessed Mr Mooney for was 26 July 2018. You make reference to a different injury sustained on 14 February 2012 where he injured his left knee at work resulting in a left knee arthroscopy from which he made a complete recovery.
   With regards to clarifying the deduction, giving the mechanism of injury is a trivial aggravation of his pre-existing degenerative osteoarthritis, I would make a 100% deduction; the reasons being the trivial nature of mechanism of injury i.e. standing from a seated position in conjunction with severe pre-existing degenerative osteoarthritis, the latter would inevitably require a left total knee replacement regardless of his employment.
   With regards to the right ankle fracture in 2017 as a result of motor vehicle accidents, at no time in both my assessments of Mr Mooney did he make reference to this.
   I have reviewed the additional medical reports you make reference to regarding his right hip and knee and after perusal, this does not alter my opinion as his clinical notes dating back to 2014 make reference to right hip and right knee pain i.e. pre work injury (26 July 2018).
    No, I have not altered my opinion regarding the right hip condition.
   I have no further comments to make.”

1. The respondent included in its Reply a number of other medical reports.

2. It is noted that the applicant saw a Dr Talley on 10 February 2003 who said:

   “He started off with his genetic disability, in other words he has the X syndrome, of obesity, insulin resistance, gout and hypertension. He also has asthma, which doesn't help. He has also developed significant osteoarthritic changes, which I didn't go into too much, but it affects his shoulder, his knees and his feet…”

3. Clinical notes from Campbelltown Hospital confirm that the applicant was admitted following a motorcycle accident on 26 May 2017. The notes state:

“PRESENTS BIBA MBA 40 KM/HR - CAR CUT HIM OFF - SWERVED & FALLEN - BIKE LANDED ON (R) LEG. BIKE WEIGHS 300kg. PMHx L YMPHOEDEMA. (R) LEG EXTREME SWELLING WITH (R) LATERAL PAIN. ABRASION TO (R) KNEE…
0/E Tender ankle Painful ROM. Tender over fracture site unable to weight bear.
X-ray right ankle: an oblique mildly displaced fracture of the proximal fibular shaft. Closed Reductlon + Olastasis Screws…”

1. The applicant saw Dr Nouh in relation to this injury. In a report dated 7 August 2017, Dr Nouh said:

   “Wayne is a 59 year old parking officer who works in Bondi. He was involved in a motor bike accident where his bike was hit by a turning car on 25 May 2017. He did have a fracture of his right ankle and a syndesmotic injury and went on to have insertion of diastasis screws of his ankle on 27 May 201 7. He has been followed up in the fracture clinic. His pain is improving and he is weight bearing through the CAM boot. He does have some lymphedema which was pre-existing but was made worse after the injury. His x-rays look good.

   I have organised for Wayne to have the syndesmotic screws removed under anaesthetic…”

1. In a subsequent report dated 20 September 2017, Dr Nouh said:

   “With regards to his injury, Wayne can start weight bearing and commence physiotherapy on the ankle. He can aim to return to pre-injury work in a couple of weeks.”

1. Clinical notes from the Ingleburn Medical Centre cover the period from 10 January 2017 to 10 November 2020. Nothing in those notes adds anything of weight to the issues in dispute.

FINDINGS AND REASONS

1. At the outset, both parties agreed that the reference by Dr Rimmer to ‘clinical notes’ demonstrating complaints of right knee and hip pain ‘dating back to 2014’ appears to be an error.

2. No such notes are in evidence.

3. A possible explanation is that Dr Oates noted complaints of right knee pain dating back to 2014, and Dr Rimmer may simply have adopted this information.

4. Either way, there is no evidence in the clinical records available of such complaints dating back to 2014.

5. The thrust of the respondent’s submissions is that the applicant has not discharged the onus upon him of establishing that any consequential condition in the right hip is causally related to his left knee injuries.

6. The respondent pointed to two principal factors.

7. Firstly, the applicant has congenital lymphoedema which Dr Oates reported as affecting “both ankles and feet area, and on the right side this had extended proximally up the lower leg and into the knee and thigh area since the motorcycle accident of 2016.”

8. This, it was submitted, could be an explanation for his right hip symptoms and is a significant and long-standing condition.

9. It was pointed out that Dr Wallace noted that it was worse in September 2020 since the applicant had stopped work.

10. Secondly, it was submitted that the motorcycle accident in 2017 (wrongly reported by
    Dr Oates as occurring in 2016) was a significant event. The notes from Campbelltown Hospital record that the bike weighing about 300kgs landed on his right leg.

11. Although it was conceded that there was no record of any complaint of right hip pain at that time, the nature and severity of the injuries sustained in that accident could well explain the applicant’s symptoms in his right hip.

12. In this regard, the evidence of Dr Nouh was significant.

13. Although the applicant said in his statement that he began suffering “pain affecting my right knee and also my right hip perhaps as early as 2012,” he added that:

    “Initially it was not too bad. However, as the years went by, the pain in my right knee and right hip became worse. I don't recall having any treatment or investigation from my right hip or my right knee until after the further injury to my left knee on 26 July 2018. After that injury, my limping became much worse, and I noticed the pain and restriction affecting my right knee and right hip became much worse.”

1. It was also submitted that there were other factors impacting the applicant’s right hip which were not dealt with by either Dr Oates or Dr Viswanathan, including the severity of the bike accident, not referred to by Dr Viswanathan at all.

2. Indeed, he has not considered whether the bike accident where the applicant fractured his right ankle might have impacted the right hip.

3. It was also submitted that Dr Viswanathan in his report dated 5 February 2020 noted “fairly mild” arthritis in the right hip, and did not refer to any altered gait.

4. Although the applicant said that he recalled developing right hip pain after the 2012 left knee injury, there does not appear to be any contemporaneous medical evidence of this.

5. The respondent submitted that Dr Oates reported that hip symptoms began after the 2018 injury, after the motorbike accident, thus casting some doubt on the veracity of Dr Oates’ opinion, because even though he noted the bike accident, he did not comment whether this may have impacted the applicant’s right hip.

6. The respondent I think quite fairly conceded that Dr Rimmer’s reports were “less than ideal.”

7. I agree, but it was also pointed out that on examination, Dr Rimmer found that the right hip was “normal.”

8. In short, the respondent submitted that the opinions of Drs Viswanathan and Oates were flawed because they failed to deal with all issues.

9. I reject the respondent’s submissions.

10. They are speculative at best.

11. There is simply no medical evidence that the congenital lymphoedema suffered by the applicant was in any way responsible for the symptoms in the right hip.

12. Both Dr Viswanathan and Dr Oates diagnosed hip arthritis and some trochanteric bursitis, with no suggestion that these conditions were related to the lymphoedema.

13. In short, none of the medical evidence supports the respondent’s submission that other factors have contributed to the applicant’s right hip condition, not even Dr Rimmer.

14. Dr Oates clearly took into account the motorbike accident, despite the error in the date, but ultimately he accepts that the cause of the right hip condition and symptoms relates to the knee injuries, and particularly the consequences of the left knee replacement surgery.

15. Again, there is no medical evidence to support the proposition that the fracture to the right ankle contributed to the symptoms and condition in the right hip.

16. I accept that Dr Viswanathan did not discuss the impact of the motorbike accident, but he certainly took a history of the lymphoedema and dismissed that as being causative of or contributing to the right hip symptoms.

17. Dr Oates concluded:

    “The right hip has similarly developed as a consequential injury in my opinion over about the last two years, because of the need to alter weight-bearing distribution during gait, with the development of a symptomatic trochanteric bursitis affecting the right hip…”

1. Dr Viswanathan concluded:

   “I don't think his right knee arthritis is due to his left knee replacement surgery. However I do believe that because he has been having to put all his weight through his right knee while recovering from his left knee his right knee arthritis and pain may have been exacerbated.
   I think his right knee and hip are due to arthritis in his right knee and hip. It has certainly have been exacerbated by the surgery in his left knee because he has had to put all of his weight through his right side…”

1. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bateshttp:// -  (1994) 35 NSWLR wherein Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):

   “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.”

2. The evidence from the treating specialist, Dr Viswanathan, together with the opinion of
   Dr Oates, combined with the evidence of the applicant which I accept, in my view is sufficient for me to conclude that the injuries to the applicant’s left knee “set in train a series of events”, namely knee replacement surgery with altered weight-bearing as a consequence of which the applicant sustained a consequential injury to his right hip.

SUMMARY

1. The applicant suffered injuries to his left lower extremity (knee) on 14 February 2012 and 26 July 2018 arising out of and in the course of his employment with the respondent.

2. As a result of those injuries, the applicant suffered a consequential medical condition of his right hip.

3. The permanent impairment dispute in respect of the left lower extremity (knee) and the right lower extremity (hip) is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment in respect of the left lower extremity (knee) resulting from injuries on 14 February 2012 and 26 July 2018 and a consequential injury to the right hip.

Deborah Moore
MEMBER

15 April 2021