Moore v Boral Transport Limited
[2021] NSWPIC 279
•6 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Moore v Boral Transport Limited [2021] NSWPIC 279 |
| APPLICANT: | David Moore |
| RESPONDENT: | Boral Transport Limited |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 6 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted injury to right knee; whether the applicant sustained consequential condition to his left knee; Held – the applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee). |
| DETERMINATIONS MADE: | 1. The applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee). 2. The matter is remitted to the President for referral to a Medical Assessor (MA) for assessment as follows: Date of injury: 26 June 2012 Body parts: Right Lower Extremity (Knee) Skin (Scarring) Method: Whole Person Impairment 3. The materials to be referred to the MA are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply to Application to Resolve a Dispute and attached documents, and (c) Application to Admit Late Documents and attached documents. 4. The matter be placed on the Medical Assessment Pending List. |
STATEMENT OF REASONS
BACKGROUND
Mr David Moore (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from frank injury to his right lower extremity (knee), consequential injury to his left lower extremity (knee) and consequential skin scarring sustained in the course of his employment with Boral Transport Ltd (the respondent) on 26 June 2012.
By Early Notification Form dated 26 June 2012, the applicant indicated that on 26 June 2012 he injured his right knee whilst climbing into a prime mover at work.
By Recurrence Form dated 7 May 2018, the applicant indicated that he required knee replacement surgery.
By notice dated 1 August 2018, issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent declined the applicant’s claim for compensation and medical and related treatment expenses including total knee arthroplasty surgery in relation to his left knee on the grounds that:
(a) there was insufficient evidence to determine whether the applicant sustained injury to his left knee arising out of or during the course of his employment and specifically the incident on 26 June 2012, and whether employment was the main contributing factor to the applicant’s left knee condition or aggravation, exacerbation, acceleration, deterioration in accordance with s 4 of the 1987 Act;
(b) there was insufficient evidence to determine whether employment was a substantial contributing factor to the applicant’s alleged left knee condition, in accordance with s 9A of the 1987 Act;
(c) the applicant was not incapacitated for work, either partially or totally, as a result of a workplace injury, as required by s 33 of the 1987 Act;
(d) there was insufficient evidence to determine whether bilateral total knee arthroplasty surgery was reasonably necessary in relation to the injury sustained on 26 June 2012, in accordance with s 60 of the 1987 Act, and
(e) there was no entitlement to medical expenses, incurred during periods of no compensable wage loss as the applicant’s entitlement expired after 31 December 2014, in accordance with s 59A of the 1987 Act.
The applicant sought a review of that decision.
By notice dated 11 March 2019, issued pursuant to s 78 of the 1998 Act, the respondent disputed the applicant’s entitlement to weekly compensation and medical and related treatment expenses for surgery in relation to his left knee condition the applicant’s left knee condition was not causally related to his right knee injury sustained on 26 June 2012 and, further, the applicant’s employment was not a substantial or main contributing factor to his left knee condition or aggravation, acceleration, exacerbation or deterioration of his left knee condition. The respondent confirmed that it accepted liability in relation to injury to the applicant’s right knee.
On 9 April 2019, the applicant underwent bilateral knee replacement surgery performed by Dr Nick Hartnell. Compensation for surgery and related treatment expenses were accepted in relation to the applicant’s right knee.
By letter dated 2 June 2020, the applicant sought a review of the respondent’s decision stated in the s 78 notice dated 11 March 2019. The letter advised that the applicant also claimed whole person impairment in relation to the frank injury to his right knee at work on 26 June 2012 and consequential injury to his left knee caused by him favouring or sparing the right knee and putting additional pressure on the left leg.
By letter dated 3 June 2020, the applicant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the frank injury to his right knee at work on 26 June 2012 and consequential injury to his left knee.
By notice dated 12 August 2020, issued pursuant to s 78 of the 1998 Act, the respondent disputed the applicant’s entitlement to permanent impairment lump sum compensation for injury to his right knee and left knee on grounds that:
(a) it disputed that the applicant sustained any injury to his left knee on 26 June 2012 within the meaning of s 4 or s 9A of the 1987 Act;
(b) it disputed that the applicant suffered any secondary/consequential condition affecting his left knee, resulting from injury to the right knee sustained on 26 June 2012, and
(c) following bilateral knee replacement surgery in 2019, there was no permanent impairment to the applicant’s right knee as a result of the injury on 26 June 2012, as any impairment was a solely result of the applicant’s pre-existing condition.
By email dated 18 September 2020, the applicant’s lawyer confirmed that the applicant claimed lump sum compensation in respect of injuries to both of the applicant’s lower extremities and skin (scarring) arising from the nature and conditions of the applicant’s employment for the duration of his employment with the respondent to date, including the frank incident on 26 June 2012.
By letter dated 28 September 2020, Icare (the insurer) notified the respondent that it disputed payment of weekly compensation in respect of the left knee condition.
The applicant filed an Application to Resolve a Dispute (ARD) on 5 May 2021. The applicant claims lump sum compensation pursuant to s 66 of the 1987 Act for permanent impairment.
ISSUES FOR DETERMINATION
The respondent accepts liability for injury to the applicant’s right knee.
The parties agree that the following issues remain in dispute in relation to the applicant’s claim for lump sum compensation pursuant to s 66(1) of the 1987 Act:
(a) whether the applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee), and
(b) the degree of permanent impairment resulting from the injury.
PROCEDURE BEFORE THE COMMISSION
At a hearing on 14 July 2021, the applicant was represented by Mr Craig Tanner, Counsel, instructed by Ms Katherine Harley, Solicitor, of Santone Lawyers. The respondent was represented by Mr James McEnaney, Counsel, instructed by Ms Mersina Kikinis, Solicitor, of HWL Ebsworth Lawyers.
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 applicant sought and was granted leave to amend the ARD, to delete the reference to “deemed” dates.
The applicant did not object to the respondent’s Application to Admit Late Documents (AALD) and attachments and leave was granted for admission of those documents on the basis that they were relevant to determination of the issues in dispute.
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD (as amended) and attachments;
(b) Reply to ARD and attachments, and
(c) Respondent’s AALD and attachments.
Oral evidence
No party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in two statements.
The applicant said that he works full-time as a truck driver. On 26 June 2012 he injured his right knee at work when he fell as he was climbing into a truck. The applicant’s claim for workers compensation in relation to that injury was accepted. The applicant continued to experience pain in his right knee. The applicant attended his general practitioner, Dr Flynn who arranged for imaging studies to be undertaken. The applicant was then referred by his general practitioner to knee specialist Dr Nick Hartnell. In 2012, Dr Hartnell opined that the applicant would require knee replacement surgery but the applicant deferred surgery because of his concern that it would impact his ability to work. The applicant managed his right knee injury without taking time off work and, over time, the condition of the applicant’s right knee deteriorated further, which put a lot of pressure on the applicant’s left knee, particularly as the applicant acted protectively towards his right knee.
The applicant said that by 2016, he was experiencing pain and symptoms in his left knee and hips as a result of the increased load on his left knee. Dr Hartnell then opined that the applicant’s pain and symptoms could continue to be managed conservatively in the short term but the applicant would ultimately require knee replacement surgery. The applicant preferred to defer knee surgery for as long as possible.
The applicant said that by May 2018, his pain and symptoms in both knees had further deteriorated to such an extent that he experienced enduring pain in both knees and experienced difficulty walking as he was unable to shift his weight to either his right or left legs without experiencing residual pain. In 2018, Dr Hartnell recommended bilateral knee replacement surgery.
The applicant underwent bilateral knee replacement surgery at the guidance of Dr Hartnell on 9 April 2019 and he then engaged in rehabilitation therapy for a period of time.
The applicant said that he has nevertheless continued to experience significant enduring pain and symptoms in both knees which has seriously impacted his ability to move and bear weight on his knees and has also impacted other areas of his life.
The applicant said that he did not have any pain or symptoms in either of his knees prior to his injury at work on 26 June 2012.
The applicant stated that since his right knee injury, he acted protectively towards his right knee, which was his main concern. At work he stepped into and out of the truck using his left leg, with his left knee taking the majority of his weight. He also used his left leg to undertake everyday tasks such as walking and standing and he consistently carried the majority of his weight on his left side. He expressed the belief that his left knee condition was consequential to his right knee injury.
Relevant treating medical evidence
Consequent to the applicant’s frank injury to his right knee on 26 June 2012, the applicant’s treating general practitioner, Dr Flynn, arranged medical imaging of the applicant’s right knee.
A medical imaging report of Dr Craig Harris dated 16 July 2012 noted that x-ray of the applicant’s right knee disclosed early osteoarthritic changes present within the medial tibiofemoral compartment, osteophytic irregularity seen generally at other joint margins and a small joint effusion present. MRI disclosed a radial tear of the medial meniscus on a background of meniscal degenerative change and chondral wear.
On 7 August 2012, the applicant’s treating general practitioner referred the applicant to
Dr Nick Hartnell, Orthopaedic Specialist in relation to the applicant’s right knee.In a report dated 15 August 2012, Dr Nick Hartnell, Orthopaedic Specialist noted that following a work injury, the applicant continued to experience pain consistently on the medial side of his right knee found it difficult to extend and flex his knee. Dr Hartnell noted that the applicant appeared to stand with a slight valgus alignment to his right lower limb. Dr Hartnell noted that radiographically there were some patellofemoral osteoarthritic changes to the applicant’s right knee although medially there did not appear to be much arthritis.
In a report dated 23 March 2016, Dr Hartnell noted that the applicant was continuing to experience problems with his right knee. Dr Hartnell noted that the applicant was also starting to experience problems with his hip and left knee.
In a report dated 1 March 2017, Dr Hartnell noted that the applicant’s left knee was starting to deteriorate as quickly as his right knee and that ultimately the applicant would require knee replacement surgery on both knees.
A medical imaging report of Dr Philip Whistler dated 1 November 2018 noted that x-ray of both the applicant’s knees disclosed moderate degenerative arthritic changes with osteophytic lipping most prominent at the lateral aspect of the left knee joint. No large effusion was seen on either knee. Small corticated bony density was noted in the right suprapatellar region. No recent fractures were seen.
In a letter dated 3 May 2018, Dr Hartnell noted that the applicant’s knee had deteriorated to the extent that he then required bilateral total knee arthroplasties.
In a letter dated 17 January 2019, Dr Hartnell sought the insurer’s approval to carry out a right total knee replacement.
By letter dated 31 January 2019, the insurer advised that it had approved the request for right total knee replacement surgery.
In a letter dated 6 February 2019, Dr Hartnell queried why approval had been given only for surgery to the applicant’s right knee and not also his left knee. Dr Hartnell opined that the condition of both of the applicant’s knees was the same.
In a report dated 26 March 2019, Dr John Harrison, Orthopaedic Surgeon, noted the applicant’s continuing knee pain and symptoms and consequent disability, particularly in relation to his left knee. On examination, Dr Harrison noted that the applicant walked without an obvious limp and had no asymmetrical deformity evident in either lower limb although he walked with slightly more external rotation in his left leg than on the right. Dr Harrison assumed that the applicant had a pattern of degenerative change affecting both knees which had developed and resulted in changed knee symptoms over a period of time. On the basis of examination and the applicant’s history, Dr Harrison opined that the cause of the applicant’s left knee condition was the nature and conditions of the applicant’s work which resulted in loadings placed on both knees in a regular fashion each day in the course of work and also the 2012 frank injury to the applicant’s right knee, which resulted in significantly more loading on the left knee in the mechanics of walking and in all other work tasks.
Dr Harrison opined that although the applicant had risk factors or medical co-morbidities, including obesity, which would have increased the likelihood of degenerative changes in his knees, they would not have caused the extent of changes experienced by the applicant, particularly in his left knee. Dr Harrison opined that knee replacement surgery was appropriate for both knees (although he recommended separate surgeries).
In a report dated 5 April 2019, Dr Nick Hartnell opined that the applicant required immediate bilateral knee replacement surgery. Dr Hartnell stated that the applicant’s right knee “was the initial knee that was aggravated”. In relation to the applicant’s right knee, Dr Hartnell noted that the applicant had some genetic predisposition for osteoarthritis and that there was no real scientific data that would suggest that compensating for a right knee injury would lead to arthritic changes on the left. However, Dr Hartnell considered that it was significant that the applicant had the same symptoms in both his right and left knees which he believed indicated the same cause of injury to both knees. Dr Hartnell noted that the injury to the applicant’s right knee was an accepted work injury.
In a letter dated 9 April 2019, Dr Hartnell confirmed that he had performed bilateral total knee arthroplasties that day, with a good result. Dr Hartnell noted that the applicant’s knees were in a poor state preoperatively and both were equally as diseased.
In letters dated 17 April 2019 and 22 May 2019, Dr Hartnell advised on the applicant’s
post-operative progress and confirmed that the applicant’s wounds were well healed.
Dr James Bodel
The applicant relies on medico-legal reports prepared by Dr James Bodel.
In a report dated 11 May 2020, Dr James Bodel stated that he conducted an independent medical assessment in relation to the applicant’s knee injuries. Dr Bodel diagnosed that the applicant had “post-traumatic osteoarthritis in both knees” which had been somewhat improved by bilateral total knee replacement surgery but still caused the applicant considerable disability. Dr Bodel noted that investigations confirmed that the applicant had pre-existing constitutional degenerative arthritic process in both knees although the applicant was asymptomatic prior to the work injury in 2012. Dr Bodel opined that employment was a substantial contributing factor to the 2012 frank injury to the applicant’s right knee. Dr Bodel further opined that employment was also a substantial contributing factor and the main contributing factor to the injury in both knees due to aggravation, acceleration, exacerbation and deterioration of the disease process as a result of the nature and conditions of the applicant’s work and that further injury had been caused to the applicant’s left knee over time because the applicant had favoured the right knee following the 2012 frank injury. Dr Bodel noted that the applicant had scarring on both knees as a result of the bilateral knee replacement surgery.
In a supplementary report dated 13 April 2021, Dr Bodel noted that prior to the 2012 frank injury to the applicant’s right knee, clinically the applicant’s activities were not causing aggravation, acceleration or exacerbation to the probable pre-existing pathology in the region of the applicant’s left knee but after that event, the applicant favoured the left side more heavily leading to the aggravation, acceleration, exacerbation and deterioration of the left knee. Dr Bodel noted that any activity which required the applicant to kneel, squat or climb would likely cause aggravation, acceleration, exacerbation and deterioration of the applicant’s pre-existing knee pathology.
Competing medical evidence
The respondent relies on medicolegal reports of Dr Stephen Rimmer, Orthopaedic Surgeon.
Dr Stephen Rimmer conducted an independent medical examination of the applicant on 17 September 2018. Dr Rimmer noted that the applicant was medically classified with morbid obesity condition. In his report dated 26 September 2018, Dr Rimmer noted that around the time of 2016, the applicant noticed the gradual onset of pain in his left hip and left knee and that there was no initiating event. Dr Rimmer noted that the applicant denied previous history of injury to his knees or hip. In relation to the applicant’s right knee, Dr Rimmer noted that the applicant described having global pain and “good and bad days”. Dr Rimmer noted that the applicant reported an “antalgic gait”. In relation to the applicant’s left knee,
Dr Rimmer noted that the applicant described intermittent pain in the medial aspect and that it was “not nearly as bad as the right knee”. Dr Rimmer noted that the applicant also described stiffness with minimal pain in his right hip. On examination of the applicant’s knees, Dr Rimmer noted that the applicant had neutral overall alignment of both knees, “normal gait”, mildly diminished quadricep musculature on the right side when supine however there was no effusion. Further, Dr Rimmer noted that there were palpable osteophytes over the medial joint line, collateral and cruciate ligaments were intact and the range of motion was 0 to 110 degrees bilaterally.
Dr Rimmer responded to a number of questions posed by the insurer. In response to the question whether he considered that the applicant’s left knee condition was related to his right knee injury, Dr Rimmer simply stated “Highly unlikely however I require further investigations”. In response to questions about the probability that a similar condition would have occurred at around the same time if the applicant had not been in employment, the applicant’s situation pre-injury, any predisposing or similar factors and the applicant’s life away from the workplace, Dr Rimmer simply stated “Not to my knowledge”. In response to the question whether the applicant’s left knee condition was related to his right knee injury and whether the requested left knee arthroplasty was reasonably necessary, Dr Rimmer simply stated “No, I do not believe the left knee arthroplasty is reasonably necessary given the history and examination. I also require an up to date series of x-rays”.
Dr Rimmer provided a supplementary report dated 13 December 2018, in response to a request for him to elaborate on his responses and provide reasoning for his opinions.
Dr Rimmer opined that the applicant’s left knee condition was not related to his right knee injury. Dr Rimmer opined that the applicant’s left knee condition was consistent with constitutional degenerative osteoarthritis secondary to his age and body mass index (being morbidly obese). Dr Rimmer opined that it was extremely highly likely that the injury or a similar injury would have happened around the same time if the applicant had not been in his employment. Dr Rimmer stated that he did not believe that the events of June 2012 had any bearing on the applicant’s current left knee condition. Dr Rimmer stated that medical literature clearly showed that a person with morbid obesity was at higher risk of developing degenerative osteoarthritis of their hip and/or knee.Dr Rimmer reviewed the applicant on 14 July 2020 and prepared a further report dated 28 July 2020. Dr Rimmer noted scarring consistent with the applicant’s bilateral knee replacement surgery. Dr Rimmer diagnosed degenerative osteoarthritis of both the applicant’s right and left knees, which he considered was constitutional pre-existing. He opined that the applicant’s employment was a substantial contributing factor to the right knee on the basis that the applicant did sustain an injury to his right knee on 26 June 2012 which would have caused aggravation of pre-existing degenerative osteoarthritis of the applicant’s right knee. He opined that the applicant did not sustain any secondary/consequential condition in his left knee caused by or resulting from overuse/favouring due to the right knee injury. Dr Rimmer opined that on the balance of probabilities, irrespective of the applicant’s right knee injury on 26 June 2012, the applicant would have required bilateral total knee replacements due to severe degenerative osteoarthritis of the patella femoral articulations of both knees. Dr Rimmer opined that the applicant’s whole person impairment was entirely attributable to severe pre-existing constitutional degenerative osteoarthritis of both knees which had nothing to do with the work injury in 2012.
Dr Rimmer provided a supplementary report dated 10 June 2021 in response to a request for him to comment on the views expressed in Dr Bodel’s report dated 13 April 2021 and to advise whether the applicant could have favoured the left side more heavily and whether on balance the right knee injury materially contributed to the left knee complaints. Dr Rimmer stated that the left knee always had severe degenerative osteoarthritis. Further, Dr Rimmer stated that the natural history of any arthritic joint is the gradual progression over time, which he believed to be the case with the applicant and, therefore, the need for a left total knee replacement was inevitable and bore no relationship to the applicant’s right knee injury.
SUBMISSIONS
Oral submissions were made by both counsel.
Both counsel referred to various parts of the evidence.
Submissions of applicant’s counsel
The applicant’s counsel noted that injury to the applicant’s right knee on 26 June 2012 is undisputed. Counsel submitted that the Commission should be satisfied on the evidence that the applicant sustained a consequential condition to his left knee as a result of the accepted injury to his right knee on 26 June 2012. Counsel submitted that the applicant’s medical evidence should be preferred. Counsel submitted that the applicant’s description of increased load to his left knee as a result of the accepted right knee injury and the applicant’s medical evidence, supported a conclusion that the applicant experienced degeneration of a constitutional left knee condition as a result of that increased load.
Submissions of respondent’s counsel
The respondent’s counsel submitted that the respondent’s medical evidence should be preferred. Counsel submitted that the evidence overwhelmingly supports a conclusion that the applicant’s left knee condition was solely the result of a constitutional knee condition and there was no degeneration of that condition consequential to the applicant’s accepted right knee injury.
Submissions of applicant’s counsel in reply
In reply, the applicant’s counsel submitted that the applicant’s case is not that the applicant’s left knee condition is solely a result of aggravation consequential to the accepted right knee injury. Counsel accepted that the applicant had an underlying left knee condition. Counsel submitted that such underlying left knee condition was aggravated as a consequence of the accepted right knee injury.
FINDINGS AND REASONS
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” to his right knee under s 4(a) of the 1987 Act, being an injury that occurred on 26 June 2012.
What requires determination is whether the applicant has sustained a consequential condition affecting his left knee as a result of the injury.
It is not necessary for the applicant to establish that the alleged left knee condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. In Moon v Conmah[1], Deputy President Roche stated 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.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[2], Roche DP stated:
“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’.”
[2] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3], where Kirby P stated 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.”
[3] (1994) 10 NSWCCR 796 at [810].
His Honour stated 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.”
As noted above, it is undisputed that the applicant suffered an accepted work injury to his right knee on 26 June 2012.
I note that the x-ray of the applicant’s right knee on 16 July 2012 disclosed early osteoarthritic changes. The x-ray of both of the applicant’s knees on 1 November 2018 disclosed moderate degenerative arthritic changes with osteophytic lipping most prominent at the lateral aspect of the left knee joint. The applicant’s counsel accepted that the applicant had a pre-existing underlying constitutional knee condition. On the basis of the evidence,
I accept that to be the case.The applicant gave evidence that he did not have any pain or symptoms in either of his knees prior to the right knee injury on 26 June 2012. That is generally consistent with the medical evidence (for example, Dr Rimmer’s report dated 28 July 2020 and Dr Bodel’s report dated 11 May 2020). There is no evidence or assertion to the contrary and I accept that to be the case.
The respondent’s counsel submitted that the medical evidence does not support a finding that the applicant favoured his right knee. I note that in his report dated 26 March 2019,
Dr Harrison noted that the applicant walked without an obvious limp and had no asymmetrical deformity evident in either lower limb although the applicant walked with slightly more external rotation in his left leg than on the right. However, it is clear from the evidence that, by that time, both of the applicant’s knees were symptomatic and bilateral knee replacement surgery was recommended. In his report dated 26 September 2018,
Dr Rimmer somewhat inconsistently noted that the applicant described an “antalgic gait” in his right knee but also noted on examination that the applicant had “normal gait” with neutral overall alignment of both knees and mildly diminished quadricep musculature on the right side.The applicant’s counsel submitted that such evidence is not conclusive and that the applicant’s evidence is sufficient in the circumstances to make a finding that the applicant favoured his right knee and consequently placed additional load and pressure on his left knee.
It is not in dispute that, subsequent to the accepted right knee injury, the applicant continued to work full-time as a truck driver apart from a post-operative recovery period following his bilateral knee replacement surgery.
I note that the applicant’s evidence in relation to the development of his left knee condition is generally consistent with the timeline of events apparent from the respective claims for compensation which are outlined in the background above. The applicant’s evidence is also consistent with the history reported by the applicant to Dr Rimmer (Dr Rimmer’s report dated 26 September 2018 noted that the applicant described an “antalgic gait” and Dr Bodel’s report dated 11 May 2020 noted that the applicant reported that he favoured his right side).
Having regard to the applicant’s evidence, particularly in relation to the nature of his work duties and the circumstances in which he favoured his right knee such as getting in and out of his truck, I do not consider that the applicant’s brief gait presentation in doctor’s rooms at a time when both of his knees were very symptomatic was typically representative of circumstances in which he favoured his right knee.
For the above reasons, I prefer the applicant’s evidence and accept that following the accepted injury to the applicant’s right knee on 26 June 2012, the applicant favoured his right knee which placed additional load and pressure on his left knee.
In Dr Rimmer’s report dated 26 September 2018, Dr Rimmer noted the applicant’s left knee symptoms which the applicant then described as “not nearly as bad as the right knee”.
Dr Rimmer noted the history of the applicant’s left knee pain, being that that following the 2012 right knee injury, over time the applicant noticed the gradual onset of similar pain in his right knee. Dr Rimmer did not address the relationship between the applicant’s right knee injury and the applicant’s left knee symptoms and the causation of those symptoms apart from the bald assertion that he considered it was unlikely that the left knee condition related to the right knee injury. In response to questions in relation to whether there were other predisposing, precipitating or perpetuating factors and the probability of a similar condition occurring at the same time if the applicant had not been in his employment, Dr Rimmer simply made the statement “Not to my knowledge”. Dr Rimmer’s unexplained opinions were then qualified by the statement that he would require further investigations.In Dr Rimmer’s report dated 13 December 2018, Dr Rimmer did not record the history of the applicant’s left knee pain and symptoms although he did consider an x-ray report of the applicant’s left and right knee and left hip dated 1 November 2018, which noted moderate degenerative changes in both knees. Dr Rimmer noted that the applicant’s left knee symptoms were consistent with constitutional degenerative osteoarthritis secondary to the applicant’s morbid obesity. However, Dr Rimmer did not explain his non-acceptance of any further potential degenerative effect on the applicant’s left knee of the applicant favouring his right knee.
In Dr Rimmer’s report dated 28 July 2020, Dr Rimmer noted that, following the applicant’s bilateral total knee replacements, the applicant continued to experience intermittent anteriorly based pain in both knees. Dr Rimmer noted that the applicant had continued his full-time work as a truck driver apart from a post-operative three-month period. It is apparent from the report that Dr Rimmer considered only the applicant’s pre-operative knee x-rays and did not view the post-operative knee-x-rays. On the basis of the pre-operative knee x-rays,
Dr Rimmer opined that the applicant had severe pre-existing constitutional degenerative osteoarthritis of both knees which he believed would have necessitated bilateral knee replacement surgery irrespective of the right knee injury on 26 June 2012. Dr Rimmer did not address or explain the potential impact of the applicant’s ongoing work duties and the applicant’s evidence that he favoured his right knee and placed additional pressure on his left knee apart from the bald assertion that there was no secondary/consequential condition.In Dr Rimmer’s report dated 10 June 2021, Dr Rimmer opined that the severe degenerative osteoarthritis of the applicant’s left knee was inevitably going to progress over time and inevitably necessitate a left total knee replacement. However, despite the opportunity for him to do so, Dr Rimmer did not address or explain the issue of any potential contribution to the deterioration of the applicant’s left knee condition of the applicant favouring his right knee. Dr Rimmer did not refer in the report to the post-operative x-rays and is not apparent that
Dr Rimmer considered the post-operative knee x-rays at any time.
Dr Hartnell treated the applicant between 2012 and 2019. In March 2016, Dr Hartnell noted that the applicant was starting to experience problems with his left hip and knee. In March 2017, Dr Hartnell noted that the applicant’s left knee was deteriorating as quickly as the right knee to the extent that, by May 2018, Dr Hartnell opined that bilateral knee replacement surgery was then necessary and that the condition of the applicant’s knees was the same. Dr Hartnell noted that the applicant had some genetic predisposition for osteoarthritis and that there was no real scientific date that would suggest that compensating for a right knee injury would lead to arthritic changes on the left knee. I note that Dr Hartnell’s evidence
pre-dated the applicant’s bilateral knee surgery.In his report dated 26 March 2019, Dr Harrison noted the applicant’s continuing knee pain and disability, particularly in relation to his left knee. He opined that the nature and conditions of the applicant’s work and additional loading on the left knee in walking and conducting other work tasks whilst favouring the right knee was the cause of the applicant’s left knee condition. Dr Harrison discounted the effect of the applicant’s medical
co-morbidities including his obesity on the basis that he opined that those factors would not have caused the extent of changes evident in respect of the applicant’s left knee.
Dr Harrison’s evidence also pre-dated the applicant’s bilateral knee surgery.
In his report dated 11 May 2020, Dr Bodel diagnosed “post-traumatic osteoarthritis in both knees” and opined that the applicant favouring his right knee had caused aggravation, acceleration, exacerbation and deterioration of the pre-existing constitutional degenerative arthritic process in the applicant’s left knee which had previously been asymptomatic.
Dr Bodel expressly disagreed with Dr Rimmer’s conclusion as to causation of the applicant’s left knee condition.In his supplementary report dated 13 April 2021, Dr Bodel confirmed his opinion. Dr Bodel indicated that all activities undertaken by the applicant after the right knee injury on 26 June 2012 had the potential to cause aggravation, acceleration, exacerbation and deterioration to the previously asymptomatic degenerative change in the left knee and that appeared to be the case. Dr Bodel noted that any activity which required the applicant to kneel, squat or climb would likely have caused aggravation, acceleration, exacerbation and deterioration of the applicant’s pre-existing knee pathology. Further, Dr Bodel noted that it appeared that clinically the applicant’s activities were not causing aggravation, acceleration or exacerbation to the probable pre-existing pathology in the region of the left knee until after the 2012 injury to the applicant’s right knee when the applicant favoured his injured knee (it appears that
Dr Bodel erroneously referred to as the left knee, although it is clear from the context that he was referring to the applicant’s right knee) more heavily leading to the aggravation, acceleration, exacerbation and deterioration described.
I do not accept the opinion of Dr Rimmer in relation to the explanation for the applicant’s left knee symptoms. I consider that Dr Rimmer did not sufficiently address or explain the consequences of the applicant favouring his right knee and placing additional load and pressure on his left knee. Further, whilst I accept that the applicant had a pattern of constitutional degenerative change affecting both knees and was classified as morbidly obese, as Dr Harrison opined, those factors alone do not appear to sufficiently explain the relatively rapid deterioration of the applicant’s left knee subsequent to the 2012 right knee injury.
Considering the evidence as a whole, on balance I prefer the evidence of Dr Bodel.
I consider that Dr Bodel provided a reasoned explanation and a more thorough analysis of the development of the applicant’s left knee condition. Dr Bodel examined the applicant post-operatively and recorded the applicant’s history in detail. He considered the various medical reports and the MRI and x-ray finding reports, including in respect of post-operative x-rays. Dr Bodel directly addressed and explained in most detail and in a reasoned manner the relatively rapid deterioration of the applicant’s left knee and the mechanical and pathological consequences of the applicant’s continued work and other activities in circumstances where the applicant favoured his right knee, and thereby placed additional load and pressure on his left knee.Considering the evidence as a whole, I feel a sense of actual persuasion that the applicant has experienced symptoms and restrictions in his left knee as a result of favouring his right knee. I am satisfied on the balance of probabilities that the applicant sustained a consequential condition to his left knee as a result of the injury to his right knee.
On that basis, I am satisfied that it is appropriate to determine that the applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee). The matter is to be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.
The issue of scarring of the applicant’s knees as a result of the applicant’s bilateral knee surgery was not specifically addressed by counsel’s submissions. I note that there is no apparent dispute that the applicant sustained scarring as a result of the applicant’s bilateral knee surgery. In his report dated 11 May 2020, Dr Bodel noted the existence of scarring on the applicant’s knees as a result of the surgery. On that basis, and for the reasons above,
I accept that the applicant also had scarring to both knees consequential to the accepted right knee injury on 26 June 2012.
0
7
0