Muir v CNS Marine Enterprises Pty Ltd

[2021] NSWPIC 29

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Muir v CNS Marine Enterprises Pty Ltd [2021] NSWPIC 29

APPLICANT:

Stuart Muir

RESPONDENT:

CNS Marine Enterprises Pty Ltd

MEMBER:

Ms Rachel Homan

DATE OF DECISION:

17 March 2021

CATCHWORDS:

WORKERS COMPENSATION- Claim for lump sum compensation; accepted right hip injury and consequential left hip condition; disputed consequential right knee condition; where unrelated left knee injury required total knee replacement shortly before first reports of increased right knee symptoms; Murphy v Allity Management Services Pty Ltd considered; Held- applicant sustained consequential right knee condition; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment.

DETERMINATIONS MADE:

1.     The applicant sustained a consequential condition at his right knee as a result of the injury to on 16 May 2016.

ORDERS MADE

1.     The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:

         Date of injury: 16 May 2016

         Body parts: Right lower extremity (hip, knee)
  Left lower extremity (hip)
  Nerve deficit (Left Common Peroneal
  Nerve)          

          Method:  Whole Person Impairment

2.     The materials to be referred to the Medical Assessor are to include the documents admitted in the proceedings together with this Certificate of Determination and accompanying statement of reasons.

STATEMENT OF REASONS

BACKGROUND

1. Mr Stuart Muir (the applicant) was employed as an upholsterer by CNS Marine Enterprises Pty Ltd (the respondent).

1. On 16 May 2016, the applicant sustained an injury to his right hip whilst carrying a piece of furniture down a flight of stairs. The applicant underwent a right hip replacement and subsequently a left hip replacement and right knee replacement, all paid for by the respondent’s insurer.

1. On 16 June 2020 the applicant made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act), in reliance on assessment of whole person impairment (WPI) by orthopaedic surgeon Dr David Millons, dated 15 June 2020. Dr Millons assessed the applicant as having 47% WPI of the left lower extremity (left hip), right lower extremity (right hip and knee), nerve deficit and scarring as a result of the injury on 16 May 2016.

1. On 17 August 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which liability for the alleged consequential right knee condition was disputed. An offer to resolve the claim based on an assessment of 13% WPI by Dr Richard Powell was made but not accepted.

1. The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 20 November 2020. The applicant seeks compensation under s 66 of the 1987 Act in accordance with the assessment of Dr Millons.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

(a)    whether the applicant has sustained a consequential right knee condition as a result of the injury on 16 May 2016, and

(b)    the degree of permanent impairment resulting from the injury.

PROCEDURE BEFORE THE COMMISSION

1. The parties appeared for conciliation conference and arbitration hearing on 9 February 2021 by telephone. The applicant was represented by Mr William Carney of counsel, instructed by Mr Michael Greene. The respondent was represented by Mr Campbell Robertson of counsel, instructed by Mr Stephen Lee. A representative from the insurer was also present.

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 taken into account in making this determination:

   (a)    ARD and attached documents;

   (b)    Reply and attached documents, apart from the reports of A/Prof Leon Kleinman dated 19 July 2016 and 31 January 2017, which were withdrawn at the conciliation conference, and

   (c)    document attached to the Application to Admit Late Documents lodged by the applicant on 25 November 2020.

1. Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

1. The applicant’s evidence is set out in written statement made by him on 18 November 2020.

1. The applicant gave evidence that he sustained an injury to his right hip at the age of 17 when he slipped at work. The applicant underwent surgery with a good recovery. Twelve months following the right hip injury the applicant again slipped at work and injured the left hip. The left hip was also operated on with good result. The applicant was able to return to his full duties as an upholsterer.

1. On 10 February 2012, the applicant sustained an injury to his left knee while shifting a sofa bed. The knee was hyperextended and required a unicompartmental knee replacement under Dr Caldwell. The applicant eventually underwent a left total knee replacement on 4 September 2018.

1. The applicant said he did experience some right knee complaints due to overload following the left knee injury but the insurer disputed that the right knee complaints resulted from the 10 February 2012 injury.

1. On 16 May 2016, the applicant was lifting a three-seater lounge down a flight of stairs, walking backwards. The applicant missed a step and fell down, twisting his right ankle. The applicant felt immediate pain in his right hip and lower back as well as his left hip, although not to the extent of the right hip. The applicant continued to work following the incident but on 15 June 2016 consulted orthopaedic surgeon, Dr Jorgen Hellman.

1. On 23 August 2016, the applicant underwent a right total hip replacement under the care of Dr Hellman. The applicant underwent post-operative physiotherapy but during this period was overcompensating on the left side to avoid placing too much weight on the right hip. As a result, the applicant began to experience more and more pain at the left hip.

1. On 23 November 2016, Dr Hellman reviewed the right hip replacement and recommended that the applicant undergo a left hip replacement. The operation eased the applicant’s pain, however, he experienced numbness and weakness in the left foot following the operation.

1. Following the hip replacements, the applicant began experiencing increased pain in his right knee. The applicant was referred to Dr Hellman in relation to the right knee. On 14 December 2018 a request was submitted to the insurer for the costs of a total right knee replacement. On 31 December 2018, the insurer approved the surgery in relation to the 16 May 2016 injury. The surgery was performed on 5 March 2019.

1. The applicant stated:

“In relation to my left knee injury on 10 February 2012, I accept that this would have placed some issues to my right knee having to cope with overload during my left knee recovery, but my right knee complaints worsened following my left hip operation. I also developed an altered gait following my left hip operation which increased my right knee symptoms.”

Treating medical evidence

1. Attached to the reply are a series of treating reports prepared by orthopaedic surgeon, Dr Bruce Caldwell in relation to the 2012 left knee injury.

1. In his initial report, Dr Caldwell took a history of previous injuries to the lower limbs that included:

“He has had a number of problems over the years including a right ACL reconstruction, a fracture of the left tibia and bilateral slipped upper femoral epiphyses at the age of 17.”

1. A report from Dr Caldwell, dated 12 February 2013 recorded that the applicant had undergone a left Oxford knee replacement four months earlier. The applicant had an excellent recovery from the surgery but was experiencing symptoms at the right knee. Dr Caldwell stated:

“He was here with his rehab provider and it was a difficult discussion about whether his right knee has got anything to do with his left knee. Certainly, he has been increasing the use of his right knee during his recovery period from his left knee and he claims a couple of giving way episodes and re-injuries. Of course, his right knee underwent an open medial meniscectomy twenty years ago and of course has developed osteoarthritic change of its own as a consequence of this.

I advised him that it is unlikely that his right knee would be considered compensable given the current changes in the legislation and that really the problems in the right knee are a combination of life's activities, work, sport and the fact that he had a meniscus removed many years ago.”

1. On 2 April 2013, Dr Caldwell noted that the applicant’s symptoms in his right knee were persisting:

“Unfortunately, he has developed similar symptoms and discomforts in his right knee. A recent x-ray shows that he has significant wear in the medial compartment on that side and if symptoms persist I suspect he will end up with an Oxford replacement on that side as well. Obviously, he has bilateral medial compartment osteoarthritic problems and has had a great result on the left side and certainly I would recommend the same surgery on the right side when his symptoms deteriorate.”

1. There are a series of treating reports from orthopaedic surgeon, Dr Jorgen Hellman, to the applicant’s general practitioner in evidence. These record the treatment the applicant received in relation to his right and left hips. Following the right hip replacement, on 23 November 2016, Dr Hellman reported:

“Stuart is 3 months down the track from his right hip replacement. He is doing extremely well. He does not have any pain. He has a bit of burning sensation over the wound but that is settling down. He is significantly troubled by the left hip now. He is taking mobic, has tried panadol but he still has significant pain. This is all related to the original injury when he was 17 years old as well.”

1. An operation record confirms that left hip replacement was performed on 30 May 2017. A note of the same date to the applicant’s general practitioner recorded that the left hip was very scarred due to the previous surgery.

1. On 10 July 2017, Dr Hellman reported that six weeks after the left hip replacement, the applicant was happy with the pain relief, however:

“His problem is with his left knee and paraesthesia down the lateral aspect of his left shin to the dorsum of his foot and weakness of dorsiflexion. He did have that problem in hospital. I think he has probably had some sciatic nerve traction due to his previous surgery, making it difficult to do the primary hip replacement. There is no reason to investigate it at the moment and I am almost certain it will settle given time. If he still has problems with paraesthesia at 6 months I will send him for nerve conduction studies.

Stuart's left knee is also playing up, which is the one he has had a unicompartmental knee replacement to. He does have significant patellofemoral crepitus and thigh muscle weakness which is contributing to this problem.”

1. On 22 November 2017, Dr Hellman reported that the applicant was still experiencing paraesthesia in the L5 dermatome and Grade III-IV power of his ankle and toe dorsiflexion. Dr Hellman said the L5 paraesthesia was probably due to sciatic nerve stretch given the previous surgery to the applicant’s left hip and associated scarring around the sciatic nerve.

1. On 2 May 2018, Dr Hellman reported that the applicant continued to have difficulties with his left lower limb:

“The left hip replacement was complicated surgery by a likely stretch injury to the sciatic nerve. This was a complication related to previous surgery. The problem is getting better and he tells me it is 300% improved on last review. I am hopeful that will continue to improve given time and lead to a full recovery. Stuart's main problem with the left hip seems to be iliopsoas irritation. Two months ago he was stepping up the gun wall of a yacht that he was a upholstering and he felt some pain in the left groin. This deteriorated in the short term and it certainly looks like iliopsoas irritation.”

1. In a report of 14 May 2018, Dr Hellman recorded that an MRI scan showed degeneration throughout the applicant’s left knee and the only option was to revise his unicompartmental knee replacement to a total knee replacement. This was to be performed at Lingard Private Hospital on 10 July 2018.

1. On 24 October 2018, Dr Hellman reported that the applicant had been referred for his right knee. The right knee was arthritic and the applicant wished to go ahead with knee replacement.

1. On 4 December 2018 Dr Hellman reported on the applicant’s ongoing problems with his left groin, left knee and right knee. With regard to the right knee, Dr Hellman stated:

“The right knee does have significant anterior and medial knee pain. He puts this down to the increased strain that the right knee has gone through due to his other joints. He did have a football injury at the age of 17 where he had an open medial meniscectomy. He did return to full activities after that. Over the last 10 years at least, following the injuries to his left knee and his hip, his right knee has deteriorated due to being overloaded by his other joint injuries.”

1. Subsequent correspondence indicated that approval had been given for the right total knee replacement. An operation record indicated that the surgery was performed on 5 March 2019.

Historical medicolegal evidence

1. Orthopaedic surgeon, Dr Chris Harrington provided a medicolegal report in relation to the applicant’s left knee injury on 21 May 2013. Dr Harrington described an injury on 10 February 2012 when the applicant slipped and injured his left knee was carrying a settee into a client’s home. The applicant was referred to Dr Caldwell. Treatment options were discussed and Dr Caldwell performed an arthroscopic meniscectomy. The arthroscope did not help the applicant’s symptoms and he later underwent a unicompartmental replacement in August 2012.

1. Dr Harrington noted a previous injury and meniscectomy to the right knee at about age 17.

1. The applicant’s left knee pain had been much better since the unicompartmental knee replacement. With respect to the right knee, Dr Harrington noted:

“He has noticed similar symptoms occurring in his right knee with pain on the inner side and radiation down into his shin. It hurts to twist. He says the right knee has been quite good until this year, but it has also been taking the load during his left knee recovery.

…
I believe Mr Muir suffers from degenerative arthritis of the right knee which has been accelerated by previous surgery and his long standing profession as a self employed upholsterer. I agree with the MRI from March this year which shows the incomplete medial meniscectomy and arthritic changes in the patellofemoral joint. The arthritis is obviously pre-existing (prior to the injury in February last year) however if the original meniscectomy was deemed compensable, then this is accelerated arthritis is the end result and should also be under compensation.”

Dr Millons

1. The applicant relies on a medicolegal report prepared by Dr David Millons on 15 June 2020.

1. Dr Millons took a history that was consistent with the applicant’s statement. The history included previous injuries to the applicant’s left and right hips as well as the injury to the applicant’s left knee in 2012. It was noted that the applicant had come to a full left knee replacement in 2018.

1. Dr Millons referred to the hip replacements performed by Dr Hellman and noted that they had appeared to ease the pain in his hips. The left hip surgery, however, had a complication in the fact that the applicant woke up with a numb left foot and weakness. It was felt that there may have been some injury to the sciatic nerve. The neurological issues continued. The applicant developed problems with his right knee and was reviewed by Dr Hellman in October 2018. Investigations revealed a degenerative right knee, possibly being aggravated by an altered gait pattern.

1. Dr Millons noted that the applicant had an open medial meniscectomy on the right knee at the age of 17 following a football injury.

1. Dr Millons performed an examination and reviewed a number of x-rays.

1. In giving his opinion, Dr Millons referred to the chronology of symptoms and surgeries to the lower limbs:

“In the incident in possibly May 2016, when he missed a step while walking backwards down a flight of stairs, carrying a three seater lounge, he appears to have sustained a substantial aggravation of the degenerate changes in the right hip and, within a few months, he came to a right total hip replacement with a good outcome.
There seems to have been the development of some pain in the left hip, possibly the result of a consequential injury, with him taking more weight on his left leg to protect his right hip.

Worsening symptoms on that side led to him coming to a left total hip replacement in March 2017.

He seems to have had some issues with some traction on the left sciatic nerve following that operation which would have been difficult in the light of the past surgery. That problem was treated conservatively.

Mr Muir has been left with some weakness in the left foot and some numbness over the dorsum of the foot in the distribution of the common peroneal nerve component of the sciatic nerve.

Mr Muir then underwent a left total knee replacement in matters unrelated to the current claim.

He would have been taking more weight on the right leg following that procedure which led to what appears to have been aggravation of some degenerate changes in the right knee as a result of an altered gait pattern, deemed to have been a consequential injury, and he came to a right total knee replacement in March 2019. He has had a moderate result from that.”

1. Dr Millons gave a series of diagnoses. With respect to the right knee, Dr Millons found:

“Osteoarthritis right knee. Aggravated as a consequential issue of problems with his left leg. Total knee replacement. Good result.”

1. Dr Millons then made an assessment of WPI of the left hip, right hip, right knee, left common perineal nerve and scarring.

Dr Powell

1. The respondent relies, in these proceedings, on a medicolegal report prepared by orthopaedic surgeon, Dr Richard Powell dated 12 December 2019. Dr Powell took a history of the injuries involving the lower limbs which was broadly consistent with the other evidence. After performing an examination in considering radiological investigations, Dr Powell diagnosed the various conditions in the lower limbs including:

“Right knee osteoarthritis on a background of previous open medial meniscectomy performed as a teenager. Dr Hellman performed a total knee replacement in early 2019 from which an excellent result has been obtained.”

1. Dr Powell made an assessment of WPI of the lower limbs which included 5% WPI for the right knee after making 9/10^th deduction on the basis of pre-existing pathology.

Applicant’s submissions

1. Mr Carney said the condition at the right knee remained in dispute.

1. The applicant’s statement made clear that from an early stage he had problems with his hips and right knee and underwent surgeries to these joints. In 2012 there was a substantial injury to the left knee. It was the interplay between that injury and the subject injury which gave rise to the dispute.

1. Mr Carney said there could be no doubt that the 2016 injury was significant. The right hip came to a replacement as documented in the applicant’s statement. The applicant gave evidence that following the hip replacements he experienced increased pain in his right knee and was referred to Dr Hellman. The applicant was later approved by the insurer to undergo a right knee replacement.

1. The applicant conceded that the left knee injury caused some issues with his right knee but these symptoms worsened following the 2016 hip injury and in particular the altered gait following the left hip surgery.

1. Complaints consistent with the applicant’s evidence were reported to Dr Hellman. In his report of 4 December 2018 Dr Hellman recorded a history that following the injuries to the left knee and hip, the right knee deteriorated after being overloaded. Mr Carney said Dr Hellman was a treating doctor and was not providing a medicolegal opinion. Dr Hellman did not comment further on the history provided to him but appeared to accept it.

1. The only other doctor that had commented on causation was Dr Millons. Dr Millons took a history of the various injuries and surgeries. Dr Millons referred to the symptoms and restrictions suggesting problems in the manner in which the applicant was walking and carrying himself.

2. In his opinion, Dr Millons referred to the presence of problems in the left lower joints, rather than any one joint in the left lower limb. Dr Millons gave a diagnosis at the right knee of osteoarthritis aggravated as a consequence of problems with the left leg. Mr Carney said this was a reference to both the left knee and hip causing an increase in symptoms. The altered gait had caused an increase in symptoms in the right knee. In that regard, Dr Millons had given an opinion that the right knee was consequential on the hip injury in 2016. It would be a matter for an Approved Medical Specialist to comment on the degree of permanent impairment resulting from the hip injury as distinct from the left knee injury.

Respondent’s submissions

1. Mr Robertson said the chronology was significant. In about 1973, in either one or two incidents, the applicant suffered injury to both hips. Both hips were treated by surgery and hip replacements were inevitable at some point down the track.

1. The applicant’s statement did not mention a football injury to the right knee resulting in an open medial menisectomy referenced in the medical evidence. Dr Caldwell also initially obtained a history of a right sided ACL reconstruction when he saw the applicant in relation to the 2012 left knee injury. This suggested there may have been multiple prior procedures at the right knee.

1. The next injury was the 2012 injury to the left knee treated by Dr Caldwell. Dr Caldwell’s reports showed that surgery was undertaken in March 2012 and subsequently a unicompartmental left knee replacement was performed. Mr Robertson said it was clear that by February 2013, the applicant was starting to have problems with his right knee. Consideration was being given at that stage to surgery on the right knee.

1. The applicant’s statement referred to right knee symptoms due to “overload” following the 2012 left knee injury. Dr Caldwell disagreed that overload was the cause of the symptoms, recording his opinion that they were the result of a combination of life's activities, work, sport and the fact that he had a meniscus removed many years ago.

1. Mr Robertson said that Dr Caldwell’s opinion was confirmed by Dr Harrington who considered that the right knee issues had been accelerated by the previous surgery.

1. Mr Robertson submitted that there was clearly a right knee issue back in 2013. The applicant’s case seemed to proceed on the premise that despite his previous injuries, the applicant was able to get on with physical work and life’s activities until 2016.

1. The chronology of the 2016 injury was that the right hip was injured in the initial event. The right total hip replacement was then performed. The left total hip replacement was performed on 30 May 2017. Then, the left total knee replacement was performed on 10 July 2018. The first complaint since 2013 in relation to the right knee occurred in October 2018. The right total knee replacement was subsequently performed.

1. The applicant said in his statement that following the hip replacements he began experiencing an increase in pain in his right knee due to overload. Mr Robertson submitted that that opinion was beyond the applicant’s expertise. Factually the increase in symptoms did not occur until October 2018, which was shortly after the left total knee replacement in July 2018 and some 15 months after the left hip replacement. The applicant’s statement was said to be misleading.

1. It was accepted by both parties that the left total knee replacement resulted from the 2012 injury originally treated by Dr Caldwell. The left knee injury resulted in right knee symptoms both in 2013 and again in 2018. The altered gait referred to by the applicant occurred in the context of the left total knee replacement having regard to the report of Dr Hellman dated 24 October 2018.

1. Mr Robertson said Dr Millons was a medicolegal expert of the first order and highly regarded. Dr Millons was specifically directed not to deal with the left knee problem. Dr Millons noted the full left knee replacement was the subject of another claim and he would not deal with it further. Dr Millons dealt with the hip operations and the nerve issues following the left hip operation but put the right knee symptoms in the context of the left knee replacement. Dr Millons considered that the applicant would have been taking more weight on the right following the left total knee replacement as a result of an altered gait pattern. This would have aggravated the degenerative changes already in the right knee. This was clearly a reference to the gait pattern following the left total knee replacement. Mr Robertson said Dr Millons was unambiguously asserting that the right knee aggravation resulted from the left total knee replacement.

1. Reading the report as a whole, Mr Robertson said Dr Millons’ references to the left “leg” must be read as meaning the left “knee”. The hip was not part of the left leg in any event. To read the report otherwise would not make sense. Mr Robertson said Dr Millons’ report took a very detailed history and was very well reasoned expression of opinion of what the right knee was consequential upon. That is, the right knee symptoms were consequential upon the left knee injury. Whilst that may be compensable under s 66, it was not compensable in respect of the 2016 hip injury.

1. Mr Robertson described Dr Hellman’s statement in his 4 December 2018 report that “over the last 10 years at least, following the injuries to his left knee and his hip, his right knee has deteriorated due to being overloaded by his other joint injuries” as a “throwaway line”. Mr Robertson said this was an opinion given without explanation and almost an ipse dixit. That opinion did not take into account that the right knee problems really occurred after the left knee replacement.

1. Mr Robertson agreed that it was possible for conditions to result from multiple causes but the preferred view, given the history in this case, was that the right knee was a consequence of the 2012 left knee injury.

1. Dr Powell had just been asked to assume a right knee consequential condition and assess it. His evidence did not go to causation.

FINDINGS AND REASONS

1. 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.”

1. It has been accepted by the respondent that the applicant sustained an “injury” pursuant to s 4(a) of the 1987 Act to his right hip on 16 May 2016. An injury or consequential condition resulting from the incident on that date at the left hip is also not disputed. There is also no dispute as to Dr Millons’ assessment of the left common perineal nerve and scarring. What requires determination is whether the applicant has sustained a consequential condition at his right knee as a result of the injury on 16 May 2016.

1. 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[1] 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.”

[1] [2009] NSWWCCPD 134.

1. In Bouchmouni v Bakhos Matta t/as Western Red Services[2], 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’.”

   [2] [2013] NSWWCCPD 4.

2. 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[3], 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.”

[3] (1994) 10 NSWCCR 796 at [810].

1. 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.”

1. The applicant in this case clearly has a long history of difficulties with both lower limbs. The applicant had undergone surgery to both of his hips and knees prior to the injury which is the subject of these proceedings. The history of prior injury and treatment of both lower limbs is well documented in the applicant’s statement and the medical evidence before me.

2. In particular, it is apparent that the applicant sustained a significant left knee injury 10 February 2012. That injury was treated by Dr Caldwell, who ultimately performed a unicompartmental knee replacement. That injury was the subject of a separate compensation claim which was considered by Dr Harrington.

3. The applicant’s evidence and the evidence of Dr Caldwell and Dr Harrington from 2013 confirmed that the applicant experienced an increase in right knee symptoms around the time of the left knee injury. Whilst there was some dispute as to the cause of the right knee symptoms at the time, the applicant attributed the symptoms to overload as a result of favouring the injured left knee. The symptoms experienced in 2013 were sufficient for Dr Caldwell to consider a unicompartmental knee replacement on the right at that time.

4. No further surgery or treatment at either knee was then recorded in the medical evidence until after the May 2016 hip injury. The evidence indicates that following the May 2016 injury, the applicant underwent a right total hip replacement in August 2016. That was followed by a left total hip replacement in May 2017.

5. The left total hip replacement appears to have been complicated due to the presence of scarring due to the previous surgery at that hip. Dr Hellman’s contemporaneous reports confirmed that following the left hip injury, the applicant experienced paraesthesia down the lateral aspect of his left shin to the dorsum of his foot and weakness of dorsiflexion. This was attributed to sciatic nerve traction due to the previous scarring. Whilst this appeared to improve with time, it had not resolved by the time of Dr Hellman’s May 2018 consultation with the applicant.

6. The applicant has referred to the symptoms of numbness and weakness in his left foot following the left hip operation in his statement. The applicant says that he developed an altered gait following the left hip operation which increased his right knee symptoms.

7. Chronologically, it appears that around the same time, the applicant’s left knee became more problematic. The left knee was investigated by Dr Hellman in May 2018 and a left total knee replacement was performed in July 2018. It was not until after the left knee replacement, that the applicant was referred back to Dr Hellman in relation to his right knee symptoms.

8. In his report of 4 December 2018, Dr Hellman recorded the applicant’s perception that the right knee had gone through increased strain due to his other joints. Dr Hellman then appears to have given his own opinion, based on that history, that following the injuries to his left knee and his hip, the applicant’s right knee had deteriorated due to being overloaded by his other joint injuries.

9. Mr Robertson was critical of this opinion, describing it as a “throwaway line” or a bare ipse dixit. It must be recalled, however, that Dr Hellman was the applicant’s treating surgeon. He was not, in this report, providing an expert medicolegal opinion. There was no requirement for him to explain the basis for his opinion. Dr Hellman was, however, well familiar with the applicant’s joint problems having recently performed both left and right hip replacement surgeries and the left knee replacement surgery. Dr Hellman was also aware of the previous meniscectomy at the right knee.

10. As noted by Mr Carney, the only other opinion on causation in the evidence before me is that given by Dr Millons. Dr Millons has set out an accurate history of the applicant’s lower limb injuries and surgeries. Dr Millons indicated that he was cognisant that the left knee injury in 2012 constituted a separate claim, and it was not included in Dr Millons’ assessment of WPI. Dr Millons was aware of the neurological difficulties experienced following the left hip replacement and was also aware of the 2018 total left knee replacement.

11. Under the heading “Opinion”, Dr Millons set out the chronology of events following the May 2016 injury. Immediately after referring to the left total knee replacement, Dr Millons stated,

    “He would have been taking more weight on the right leg following that procedure which led to what appears to have been aggravation of some degenerate changes in the right knee as a result of an altered gait pattern, deemed to have been a consequential injury.”

12. Mr Robertson has said this was an unambiguous opinion that the right knee condition and the need for a right knee replacement resulted from the left knee replacement surgery.

13. I accept that Dr Millons’ report does express that opinion. However, I do not accept, reading Dr Millons’ report as a whole, that he considered the left knee replacement surgery to be the only cause of an aggravation of the applicant’s right knee degenerative changes.

14. Under the heading “Diagnosis”, Dr Millons gave the opinion that the degenerative changes in the right knee were aggravated as a consequential issue of problems with his left “leg”. Dr Millons proceeded to make an assessment of the degree of permanent impairment at the right knee resulting from the May 2016 injury. Dr Millons was clearly aware that the May 2016 injury involved the hips and that the left knee injury in 2012 was separate and did not form part of that claim.

15. In my opinion, the better view of Dr Millons’ report, when read as a whole, is that he was expressing an opinion, consistent with that given by Dr Hellman, and consistent with the applicant’s own reported perception, that the aggravation of the right knee was caused by both the left hip problem as well as the left knee problem.

16. It must be noted that at the time Dr Millons prepared his report, liability for the right knee condition and the total knee replacement at the right had been accepted by the insurer. Dr Millons referred to this in his report and this circumstance would explain why no further explanation of the causal relationship between the right knee condition and the May 2016 injury was considered warranted.

17. Indeed, the respondent’s own medicolegal expert, Dr Powell was not asked to provide any opinion on the causal relationship between the right knee and the hip injury and it appears to have been assumed by him that the requisite causal relationship existed. Dr Powell proceeded to provide an assessment of the degree of permanent impairment at the right knee resulting from the right hip injury in May 2016.

18. On my assessment of the evidence there is no medical opinion which contradicts the applicant’s claim that he sustained a consequential condition at his right knee as a result of his May 2016 hip injury.

1. It is uncontroversial that there can be multiple causes of a condition. In Murphy v Allity Management Services Pty Ltd[4] 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).”

   [4] [2015] NSWWCCPD 49.

2. There is no doubt that the left knee injury contributed to the applicant’s right knee condition. It is also likely that the right knee condition is causally related to the previous injury and open medial meniscectomy performed when the applicant was about 17 years old. As noted by Dr Caldwell in 2013, factors such as life's activities, work, sport would have also contributed to the condition. None of this is inconsistent with the view that that there was a condition at the applicant’s right knee and need for a total knee replacement that “resulted from” the May 2016 hip injury.

3. After carefully considering the evidence as a whole, I am satisfied on the balance of probabilities, that the applicant sustained a consequential condition at his right knee as a result of the injury on 16 May 2016.

4. Noting the dispute as to the degree of permanent impairment resulting from the injury on 16 May 2016 and having regard to the wide discrepancy between the assessments of Dr Millons and Dr Powell, I consider it appropriate to remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment.

5. As noted by Mr Carney, it will be a matter for the Medical Assessor to determine the degree of permanent impairment resulting from the 16 May 2016 injury as distinct from any permanent impairment resulting from other causes.

SUMMARY

1. The Commission determines:

   (a)    The applicant sustained a consequential condition at his right knee as a result of the injury to his right hip on 16 May 2016.

1. The Commission orders:

(a)    The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:

Date of injury:        16 May 2016

Body parts:Right lower extremity (hip, knee)

Left lower extremity (hip)

Skin (scarring)

Nerve deficit (Left Common Peroneal Nerve)

Method:Whole Person Impairment

(b)    The materials to be referred to the Medical Assessor are to include the documents admitted in the proceedings together with this Certificate of Determination and accompanying statement of reasons.

Rachel Homan
MEMBER

17 March 2021