NSW Police Force v Kennedy
[2009] NSWWCCPD 99
•14 August 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | NSW Police Force v Kennedy [2009] NSWWCCPD 99 | ||||
| APPELLANT: | NSW Police Force | ||||
| RESPONDENT: | Donald Kennedy | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A1-205/09 | ||||
| ARBITRATOR: | Ms A Britton | ||||
| DATE OF ARBITRATOR’S DECISION: | 5 May 2009 | ||||
| DATE OF APPEAL DECISION: | 14 August 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 60 of the Workers Compensation Act 1987; knee replacement surgery; whether hospital and medical expenses had been incurred as a result of accepted aggravation injuries | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | |||
| Respondent: | McGrath Dicembre & Company | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 5 May 2009 is revoked and the following orders made: “1. Award for the respondent. 2. No order as to costs.” | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
The worker, Mr Kennedy, has injured his knees on various occasions dating back to 1977. In the course of his employment with the appellant, the NSW Police Force, he twisted his right knee whilst running to catch a train on his way to work on 28 September 2004. As a result of that injury he was off work for a period. He injured his right knee again on 26 April 2005 while running in the course of his employment in response to a fire alarm. Liability in respect of each injury was accepted. He returned to his normal duties after the 2004 injury but only to light duties after the 2005 injury. Liability was initially accepted, but declined on 7 December 2005.
In 2007 Mr Kennedy underwent total bilateral knee replacements, the left first and then the right. On 16 September 2008, his solicitors claimed under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) the hospital and medical expenses relating to treatment of his right knee. The Police Force’s workers compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), denied liability by letter dated 26 November 2008 on the following grounds:
(a) any work related aggravation in the September 2004 and April 2005 injuries were of a temporary nature and were not in any way causative of the need for the total knee replacement surgery, and
(b) the expenses claimed were not “reasonably necessary” or “as a result of” the alleged “physical aggravation injuries”.
By an Application to Resolve a Dispute (the ‘Application’) registered in the Commission on 15 January 2009, Mr Kennedy claimed hospital and medical expenses under section 60 in the sum of $29,854.45. In a Reply filed on 5 February 2009, the Police Force disputed liability on the grounds set out in Allianz’s letter of 26 November 2008.
The matter was listed for conciliation and arbitration on 9 February 2009. No oral evidence was heard, but the Arbitrator heard detailed oral submissions. In a reserved decision delivered on 5 May 2009, the Arbitrator found in favour of Mr Kennedy. The Commission’s Certificate of Determination issued on 5 May 2009 records the following orders:
“(1) The Respondent is to pay the Applicant’s section 60 expenses of up to
$29,854.45 upon production of accounts or receipts.
(2) The Respondent is to pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 28 May 2009, the Police Force seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Lay evidence
Mr Kennedy’s evidence is set out in his statement of 23 December 2008. He was born in 1951 and is currently 58 years old. After completing his schooling in year nine, he worked in several different jobs including work as a fencer, farmhand and storeman/packer. In 1973 he obtained employment as a porter/wardman at Moree District Hospital where he remained for approximately 14 ½ years.
He moved to Sydney with his family in 1986 and commenced work with MSS Security where he remained until he commenced work with the NSW Police Force (then known as the NSW Police Service) on 9 November 1987. He remains employed with the Police Force as a Senior Special Constable.
In 1977 he injured his right knee whilst playing touch football and the following year underwent surgery when cartilage was removed from his knee. He recovered from that injury and continued to play football, hockey and other sports.
In 1994 he injured his left knee whilst playing competition hockey. That injury required surgery in the same year. He recovered from that surgery after a few months and returned to football, hockey and other sports.
As a member of the Australian Army Reserve (having joined in 1971), Mr Kennedy has undergone a basic fitness assessment twice per year and had always successfully completed that test until April 2005.
On 28 September 2004, he was running down stairs to catch a train on the way to work. When he landed at the bottom of the stairs and turned he twisted his right knee and felt sharp pain. The matter was reported and he continued to work for two to three days but eventually saw his doctor and was referred for physiotherapy. He recalls being off work for approximately three months and returning to normal duties on 7 January 2005. He passed a further basic fitness assessment with the Army Reserve in February/March 2005.
On 26 April 2005, Mr Kennedy twisted his right knee again whilst running to respond to a fire alarm. He felt a sharp pain in his right knee and states that he saw his doctor the following day and was off work for approximately three months. In May 2005 he was referred to Dr Robert Elliott, orthopaedic surgeon, who performed an arthroscopy on the right knee on 28 June 2005. On his return to work he was placed on light duties. Liability for his claim was initially accepted, but apparently denied by letter dated 7 December 2005. That letter is not in evidence, but is referred to in Mr Kennedy’s solicitor’s letter of 16 September 2008.
After referring to the surgery on 28 June 2005 and being placed on light duties at work, Mr Kennedy then added the following in his statement;
“34. Between this period I was still having problems with my knee, having
difficulty with prolonged standing and walking and generally difficulty in
returning to my normal job.
35. I continued to have pain and discomfort in my right knee having difficulty climbing stairs, not being able to walk for long distances and walking on slopes.
36. I put up with this pain and discomfort for a number of years until I consulted Dr Elliott in 2007 when my pain had become most severe. Dr Elliott recommended that I have a total knee replacement which operation was carried out in December 2007. I sustained a complication with regard to the operation requiring my knee to be cleaned out and the lesions and scar tissue to be cleaned.”
He added at paragraph 38 of his statement that ever since his injuries in September 2004 and April 2005 he suffered a great deal of pain and discomfort.
In respect of the April 2005 injury, Mr Kennedy submitted a workers compensation claim form on 14 June 2005. The date of injury is stated to be 26 April 2005 and the date on which Mr Kennedy ceased work is stated to be 23 May 2005. The injury details are “re-injury right knee run” and reference is made to having sustained a similar injury on 28 September 2004.
Medical Evidence
Dr Roe, Fellow of the Royal College of Surgeons, reported to Dr Bland, general practitioner, on 20 July 2004 that Mr Kennedy underwent a successful left anterior cruciate ligament reconstruction and a medial meniscectomy in October 1994. He developed acute postoperative septic arthritis which required long term antibiotics. Though Mr Kennedy returned to sport, he presented to Dr Roe with typical left knee symptoms of medial compartment osteoarthritis. Dr Roe discussed the possibility of further surgery in the form of a high tibial osteotomy.
The first medical evidence relating to the 2004 injury is a certificate from Dr Chong, general practitioner in the same practice as Dr Bland, dated 5 November 2004. The doctor diagnosed “strain (R) medial ligament/osteoarthritis”. He referred Mr Kennedy to Dr Roe who indicated that the underlying pathology involved an aggravation of osteoarthritis within the knee joint and that the prognosis was excellent for a return to pre-injury duties following physiotherapy (see report from Ms Summerton, occupational therapist with Rehabilitation Services Pty Ltd dated 30 November 2004). As Mr Kennedy had returned to his pre-injury duties on 3 December 2004, rehabilitation ceased and a closure report was prepared on 6 January 2005.
Mr Kennedy attended on Gillian Schultz, physiotherapist, on 24 November 2004. He gave a history that he aggravated his knee (presumably his right knee) when he recently slipped down a step. Mrs Schultz stated that the irritation appeared to have settled quickly.
The first medical evidence after the 2005 injury is a medical certificate from Dr Chong dated 6 May 2005. The diagnosis in that certificate is indecipherable and it contains no information as to the date of injury or how the injury occurred.
Mr Kennedy was again referred to Dr Roe who examined him and reported on 18 May 2005. Dr Roe took the following history:
“He had an improvement in October following our consultation which took about 3-4 months. He has had a recurrent flare up of his lateral knee pain and shooting down his tibia which relates to a walk around the Opera House and Circular Quay. His symptoms improved with ice and now he is finding intermittent aches in the lateral compartment which is worse with running at work.”
On examination, Dr Roe noted that Mr Kennedy stood with a “varus alignment on the left and neutral alignment on the right.” He had bone on bone crepitus in the lateral compartment, presumably of the right knee though the report is unclear. He had bone on bone crepitus in the medial compartment of the left knee. Recent x-rays of the right knee confirmed lateral compartment osteoarthritis, a loss of joint space and osteophyte formation. Dr Roe encouraged a non-impact loading exercise program together with a weight loss program to try and decrease the load going through both knees.
Mr Kennedy saw Dr Bland on 23 May 2005. In his WorkCover certificate of that date Dr Bland recorded that Mr Kennedy injured his right knee while running out to a fire panel on 26 April 2005 and he declared him unfit from 23 May 2005 until 25 May 2005. He described the injury as an “injury to the right knee (lateral compartment)”.
Mr Kennedy saw Dr Elliott on 26 May 2005. In his report of the same date addressed to Dr Bland, Dr Elliott recorded that Mr Kennedy injured his right knee at work on 28 September 2004 when he fell down some stairs. His knee was painful and swollen, but later recovered. On 26 April 2005, Mr Kennedy ran to a fire panel twisting his right knee and experienced further pain, which had not settled. His knee remained swollen and occasionally gave way and locked. Walking on stairs, kneeling and squatting were all painful. The pain was mainly over the lateral aspect of the knee but also around the patella. He noted that Mr Kennedy had undergone a lateral menisectomy to his right knee approximately thirty years ago. Dr Elliott noted that x-rays showed degenerative changes in the right knee, especially in the lateral joint compartment and in the patello femoral compartment. The doctor felt that the future prognosis “should be guarded”.
In a medicolegal report dated 15 February 2006, Dr Elliott repeated the history set out in his May 2005 report to Dr Bland. He confirmed that the 2005 incident had “aggravated some degenerate change in his knee” and that the future prognosis should be guarded. Dr Elliott performed an arthroscopy on 28 June 2005, which revealed grade 2 changes in the retro patella area and in the medial joint compartment, but grade 3 to 4 changes in the lateral joint compartment. There was also “shredding of the posterior part of the lateral meniscus.” The torn part of the lateral meniscus was removed and a general debridement performed.
Dr Elliott saw Mr Kennedy on several occasions after the surgery. On 29 August 2005, he noted that Mr Kennedy was having difficulty with prolonged standing and walking. On 24 October 2005, the doctor noted that physiotherapy had helped his right knee and he was still working on selected duties. On 19 January 2006, Mr Kennedy’s right knee remained “much the same”. He had returned to work in the ID section and was taking intermittent anti-inflammatory medication and analgesics.
Under “Opinion”, Dr Elliott concluded that Mr Kennedy’s pre-existing degenerative changes in his right knee had been aggravated by his “two falls” at work. He felt that the prognosis was guarded and that it was “possible he may need a total joint replacement”. He conceded that the falls at work had not caused the arthrosis in the right knee, but the arthritic changes had certainly been aggravated by the falls and that the future prognosis was guarded.
Mr Kennedy saw Dr Elliott again on 28 September 2006 because of increasing pain and disability in his left knee, which interfered with his sleep. Mr Kennedy was keen to proceed with a total knee replacement.
In his last report, dated 5 May 2008, Dr Elliott recorded that he saw Mr Kennedy again on 11 January 2007. On that day Mr Kennedy complained of increasing pain in his right knee. Though Dr Elliott thought that the symptoms were not severe enough to warrant a joint replacement on the right side, he added that at some stage Mr Kennedy would “probably come to it”.
Dr Elliott reviewed Mr Kennedy again on 4 October 2007 when his right knee pain had become severe and “he was developing a valgus deformity.” Dr Elliott stated:
“In view of his deformity and increasing pain I recommended a total knee replacement be carried out on the right side and this was carried out at The Hills Private Hospital on the 7/12/07 again using a natural knee with a cemented tibial component and an uncemented femoral and patella prosthesis. Post-operatively there were no problems.”
Under “Opinion”, Dr Elliott stated:
“This man has undergone bilateral total knee replacements and he is progressing slowly. He continues to work in office duties at the Police Department and this will be a permanent restriction. There will be permanent disability from these procedures. He has complied with all treatment requests. He will never be able to return to front line police work.”
At the request of the Police Force, Dr A L G Smith, orthopaedic surgeon, examined Mr Kennedy on 30 November 2005. In a report of the same date, Dr Smith took a consistent history of the two work injuries, though he wrongly recorded the first injury as having occurred on 29 April 2004. He also took a history of Mr Kennedy having had surgery on two occasions to his left knee. He noted that Mr Kennedy stopped playing hockey and sport in 2003 because of aching in his right knee. He also recorded “another incident sometime in May of 2005” when Mr Kennedy took his granddaughters to the Opera House. Whilst walking around the Opera House he developed severe pain in his right knee running down the shin and he had to stop and rest. Dr Smith noted Dr Roe’s report of 18 May 2005, but was unaware of the procedure Dr Elliott performed in June 2005. Examination revealed that the surgery Mr Kennedy referred to as having taken place on his left knee 30 years ago had in fact been performed on his right knee. Mr Kennedy also complained that his left knee became a problem about four to six weeks prior to the examination.
In Dr Smith’s opinion the history suggested a problem with both knees with each knee equally severely affected. He added that Mr Kennedy’s bilateral knee arthritis was a constitutional malady that was unrelated to his operation 30 years ago and unrelated to his ACL reconstruction 10 years ago. He did not think the 2004 incident had any real effect on the bilateral knee arthritis, which had become symptomatic in an episodic fashion since 28 September 2004 and would continue to be symptomatic in the foreseeable future and become an increasing problem as the years pass. Eventually Mr Kennedy would need bilateral knee replacements. The condition was constitutional not work related and employment was therefore not the cause of the arthritis. The aggravations at work in September 2004 and April 2005 had settled. He did not think the Police Force was responsible for the cost of the total knee replacements.
Dr Smith examined Mr Kennedy again on 29 October 2008 and prepared a further report on that date. Since his first report, Mr Kennedy had undergone bilateral knee replacements. Dr Smith confirmed his previous opinion that knee arthritis is a constitutional malady and that he had no reason to alter his opinion that employment with the NSW Police Force was not the cause of the bilateral knee arthritis. He added, “aggravations sustained along the way have all since settled of themselves.”
Dr Smith was asked to provide his opinion as to whether Mr Kennedy’s employment was a substantial contributing factor to the work injuries in September 2004 and April 2005. In response, the doctor said:
“His employment was a substantial contributing factor to aggravations that occurred on 28 September 2004 and 26 April 2005. Those aggravations have settled of themselves and have made no real contribution to his underlying knee arthritis and his need for total knee replacements as has occurred.”
The doctor was also asked for his opinion “on whether same [sic] expenses were incurred as a result of the alleged work-related injuries”. He replied:
“I have expressed the opinion that his knee arthritis is a constitutional malady and it is his responsibility to pay for the treatment for it.
He was going to have this happen to him anyway whether he worked or whether he did not, or no matter what work he did.”
THE ARBITRATOR’S REASONS
After reviewing the evidence and referring to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, the Arbitrator found in her Statement of Reasons (‘Reasons’):
(a) it was not enough for Mr Kennedy to simply establish that the need for treatment post-dated his injuries (Reasons at [37]);
(b) the proposition that the second aggravation (in 2005) was “temporary” and had settled within a few months, sat uncomfortably with the objective evidence (Reasons at [40]);
(c) there was no evidence that Mr Kennedy had any difficulty performing his duties prior to the work injury in 2004, or after his return to work in November 2004. Following the injury in 2005, the functional capacity of the right knee had significantly reduced and Mr Kennedy required pain relief (Reasons at [40]);
(d) Mr Kennedy consistently reported pain in his right knee after the 2005 injury (Reasons at [41]);
(e) the evidence did not suggest that the Opera House incident was of any great note (Reasons at [42]);
(f) the evidence about Mr Kennedy being troubled by his right knee before the 2004 injury was not determinative. There was nothing to indicate that before the 2004 injury Mr Kennedy considered or sought any form of treatment. He remained fit to undertake the duties of a police officer and an army reservist (Reasons at [43]).
(g) Dr Elliott recommended the total knee replacement “in view of [Mr Kennedy’s] deformity and increasing pain”. He did not state that the “deformity and increasing pain” were related to the subject injuries, but that did not demonstrate that Dr Elliott believed that the need for the replacement was unrelated to the subject injuries. His statement had to be seen in “context of the final report together with all reports prepared by Dr Elliott” and a fair reading of the totality of Dr Elliott’s evidence indicated that he believed Mr Kennedy’s arthritis had been materially aggravated by the subject injuries (Reasons at [45]);
(h) that the aggravation had not settled after the second injury and the chronic pain which followed it, combined with the functional restrictions, led Dr Elliott to conclude that the replacement was warranted (Reasons at 45]);
(i) she preferred Dr Elliott’s view over that of the Police Force’s experts because it was consistent with the objective evidence of a significant reduction in functional capacity and report of significant pain and troubling symptoms after the second injury. Dr Elliott had the benefit of observing and monitoring Mr Kennedy’s condition over an extended period. He had not overlooked the evidence of degenerate change in the right knee, but nevertheless concluded that the condition had been aggravated by the falls and gave reasons for that opinion (Reasons at [46]), and
(j) she was satisfied that as a result of the subject injuries, in particular the second injury, the replacement of Mr Kennedy’s right knee became necessary and the Police Force was therefore liable for the cost of surgery and related costs.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Kennedy’s surgery was “as a result of” an aggravation injury within the meaning of section 60 of the 1987 Act;
(b) in affording undue weight to Mr Kennedy’s medical evidence, considering that that evidence did not directly address the question in issue under section 60 of the 1987 Act;
(c) in wrongly directing herself as to the facts and medical conclusions;
(d) in failing to apply the “common sense causal chain” necessary for a conclusion that the surgery was “as a result of” the aggravation injuries in September 2004 and April 2005, and
(e) in providing insufficient reasons for her determination.
SUBMISSIONS, DISCUSSION AND FINDINGS
Ground 1
It is submitted on behalf of the Police Force that:
(a) the Arbitrator merely concerned herself with whether Mr Kennedy’s aggravation continued and she failed to appropriately consider the question in issue, namely, whether Mr Kennedy’s surgery was “as a result of” an aggravation injury;
(b) the Arbitrator found that the effects of Mr Kennedy’s aggravation injury continued and then simply “inferred” that the surgery was “as a result of” the injury without any direct evidence to that effect;
(c) the Arbitrator did not consider the extent of any aggravation, nor how or why any aggravation would affect the pathology in Mr Kennedy’s knee so that a total knee replacement was necessary;
(d) it is more plausible that the total knee replacement was “as a result of” the pre-existing degenerative condition. It does not automatically follow that any aggravation injury in 2005 was the cause of the total knee replacement in late 2007;
(e) the Arbitrator’s conclusions were mere conjecture or surmise (Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (‘Luxton’)). Even if an aggravation injury is a possible explanation for the surgery, that does not permit the finding made by the Arbitrator. For Mr Kennedy to succeed, the evidence “must do more than give rise to conflicting references of equal degrees of probability so that the choice between them is a mere matter of conjecture” (Luxton at [8]);
(f) the burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (per Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275 [80]);
(g) Mr Kennedy provided no evidence specifically addressing the question of whether the knee replacement in November 2007 was “as a result of” the aggravation injuries in September 2004 and April 2005. Dr Elliott stated that the surgery was precipitated by a valgus deformity and there is no evidence that that deformity resulted from the 2005 aggravation;
(h) the evidence tendered on behalf of the Police Force is highly probative and directly on point. It specifically addresses the question of whether or not the surgery was “as a result of” the aggravation injuries, and
(i) the Arbitrator erred in ignoring the expert evidence provided by the Police Force in favour of inferential and unsound reasoning based on reports from Dr Elliott in which the relevant issues were not addressed.
It is submitted on behalf of Mr Kennedy that:
(a) when one considers the totality of the evidence it is quite evident that the surgery was “as a result of” the injury;
(b) the Police Force’s submissions ignore the evidence regarding the continuing and increasing symptoms and restrictions experienced by Mr Kennedy after the injury and the state of his knee prior to the aggravations;
(c) the totality of the medical and other evidence, including the time off work, the inability to pass the fitness tests with the Army, the continuing complaints made by Mr Kennedy, all go to the question in section 60 and are evidence that the surgery was “as a result of” the injury;
(d) as early as August 2005, Mr Kennedy was informed by Dr Elliott that he may require a right knee replacement. Dr Elliott attempted to treat the right knee with conservative measures. As a result of continuing and increasing symptoms, Dr Elliott had no further options available to him but to advise Mr Kennedy to undergo a knee replacement operation;
(e) no other conclusion can be reached other than Dr Elliott’s view that the surgery was necessitated as a result of the second aggravating injury in 2005. It cannot be found that the Arbitrator’s conclusions were mere conjecture or surmise;
(f) there is no evidence that the surgery would have been required regardless of the two falls;
(g) Dr Smith provides no reasoning to support his conclusions (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). In reaching a decision on the causal chain, the history and other evidence, not only expert opinions, are to be considered;
(h) the Police Force’s evidence is not highly probative and deserved to be afforded little weight;
(i) without the continuing symptoms arising directly from the aggravations, surgery would not have become necessary, and
(j) the affect of the work aggravation had not settled.
Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any occupational rehabilitation service be provided, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is accepted that Mr Kennedy’s injuries are injuries under section 4(b)(ii) of the 1987 Act. That is, they are injuries that resulted in the aggravation of the disease of arthritis. It is also accepted that the surgery was reasonably necessary. The dispute is whether the surgery was reasonably necessary as a result of the accepted injuries.
For the following reasons, I do not accept Mr Kennedy’s submissions, which fail to acknowledge that he carries the onus of proof and do not overcome the lack of evidence on the critical issue in dispute. The general submission that “when one considers the totality of the evidence” it is quite evident that the surgery was “as a result of” the injury, is, without any proper reference to the evidence, unhelpful.
The Arbitrator gave careful and detailed consideration to the evidence and properly acknowledged that Dr Elliott recommended surgery “in view of [Mr Kennedy’s] deformity and increasing pain” and that he did not state that the deformity and increasing pain were related to the work injuries (Reasons at [45]). She did not, however, believe that that omission demonstrated that Dr Elliott believed that the need for the surgery was unrelated to those injuries. She felt that a fair reading of the totality of his evidence indicated that:
(a) Mr Kennedy’s arthritis had been materially aggravated by the work injuries;
(b) the aggravation did not settle after the second injury, and
(c) the chronic pain, which followed it (the aggravation), combined with functional restrictions led Dr Elliott to conclude that the surgery was warranted.
The Arbitrator added (at [45] of her Reasons) that she preferred Dr Elliott’s evidence to that of the experts relied on by the Police Force because:
(a) it was consistent with the objective evidence of a significant reduction in functional capacity and report of significant pain and troubling symptoms after the second injury;
(b) Dr Elliott had the benefit of observing and monitoring Mr Kennedy’s condition over an extended period, and
(c) Dr Elliott did not overlook the evidence of degenerate change in the right knee, but nonetheless concluded that the condition had been aggravated by the falls and gave reasons for that opinion.
The question is whether the evidence establishes, on the balance of probabilities, that the surgery was reasonably necessary as a result of the work injuries. Dr Elliott’s evidence does not address this issue and this omission is of critical importance. The Arbitrator rightly noted that that omission might not establish the negative contention (that the need for the surgery was unrelated to the injuries). However, Mr Kennedy carries the onus of establishing the positive contention (that the surgery was reasonably necessary “as a result of” the injuries). Dr Elliott’s failure to say that the need for the surgery was unrelated to those injuries does not establish that he was of the view that the surgery was the result of the injuries. He was silent on the issue the Commission must determine.
Contrary to the Arbitrator’s finding, Dr Elliott did not conclude that the surgery was warranted because of the chronic pain and functional restrictions that followed the 2004 and 2005 injuries. He recommended surgery “In view of [Mr Kennedy’s] deformity and increasing pain”. The deformity was a “developing” valgus (bowlegged) deformity. There is no evidence that that deformity, or the increasing pain in 2007, resulted from the aggravation injuries in 2004 and 2005. The evidence does not support the Arbitrator’s approach or conclusion.
The Arbitrator’s findings listed at [50] above do not address and are not determinative of the issue in dispute, but go only to the issue of whether the effects of the aggravation injuries are continuing. Point (a) fails to consider the cause of the increase in symptoms in 2007, which was one of the two factors that led Dr Elliott to recommend surgery. Point (b) is true, but the fact that Dr Elliott had the opportunity to observe and monitor Mr Kennedy over an extended period is not, however, determinative of the issue in dispute. Point (c) is also true but, again, fails to consider what brought about the need for the surgery.
There are other features of the evidence that undermine the Arbitrator’s conclusion and Mr Kennedy’s submissions.
First, the nature and extent of the work injuries is the subject of conflicting evidence. Though the Arbitrator, and some of the doctors, referred to the work incidents as “falls”, that is not consistent with Mr Kennedy’s evidence in his statement of 23 December 2008. In respect of the 2004 incident, he said that as he landed at the bottom of the stairs he twisted his right knee and felt pain (paragraph 22). In respect of the 2005 incident, he said that he twisted his right knee while running (paragraph 30). This description is consistent with the description in the claim form where the injury is described as “Re-injury right knee run”.
Second, precisely when Mr Kennedy sought medical treatment after the 2005 incident is also the subject of inconsistent evidence. I do not accept his assertion at paragraph 31 of his statement that he saw a doctor the following day (27 April 2005). The medical certificates in evidence suggest that he did not see Dr Chong until 6 May 2005. That certificate has no details of any work injury and the very brief entry under “Diagnosis” is indecipherable. It declared Mr Kennedy to be unfit until 7 May 2005. I accept, however, that this attendance was for Mr Kennedy’s right knee, as he was referred for an x-ray of his right knee on 6 May 2005 and also referred to Dr Roe.
Third, on 18 May 2005 Dr Roe took no history of the April 2005 work incident but noted a flare up of lateral knee pain, which related to a walk around the Opera House and Circular Quay. This history raises a question as to the significance of the incident at work on 26 April 2005 and undermines the submission by Mr Kennedy that no other incident happened after 26 April 2005 and that Mr Kennedy’s chronic pain in 2007 resulted from the two work injuries. It also undermines the Arbitrator’s finding that the Opera House incident was not of “any great note” (Reasons at [42]).
Last, the first medical evidence with a history of the 26 April 2005 work incident is Dr Bland’s certificate of 23 May 2005. The reason for this delay is not explained, or even considered, in the evidence. The absence of any mention of a work injury in Dr Chong’s certificate of 6 May 2005 is also unexplained.
Whilst Mr Kennedy may well have experienced a reduction in functional capacity and an increase in right knee symptoms after 26 April 2005, the questions remain: when did that occur and why? In circumstances where Dr Roe only recorded a history of intermittent symptoms on 18 May 2005, and took no history of the 26 April 2005 injury, and the medical certificates did not refer to the work injury until 23 May 2005, I am not satisfied that the reduction in functional capacity and the later increase in symptoms resulted from the 2004 and/or 2005 work injuries.
Dr Elliott’s evidence is clear. He recommended the knee replacement surgery because of the valgus deformity and the increasing pain. There is no evidence that the work injuries caused or aggravated the valgus deformity, which was not noted to be present until October 2007. Nor is there any evidence that the increase in pain in 2007 resulted from the work injuries. Dr Elliott did not address those issues. That omission is not overcome by an analysis of the totality of the evidence. If anything, that analysis (and I refer in particular to Dr Roe’s evidence that Mr Kennedy’s pain on 18 May 2005 was intermittent and, in any event, resulted from walking at the Opera House and Circular Quay and not from the work incident) undermines any suggested connection between the need for the surgery and the work injuries. Therefore, regardless of the merit of the Police Force’s evidence, Mr Kennedy has not discharged the onus of proof and his claim must fail.
Though it is not necessary for the determination of the case, I make the following additional observations about Mr Kennedy’s submissions. The submission that the Police Force’s arguments ignore the evidence regarding Mr Kennedy’s continuing and increasing symptoms after the 2005 injury overlooks the fact that there is no evidence that the increase in Mr Kennedy’s symptoms in 2007 resulted from the work injuries. It also overlooks Dr Roe’s evidence referred to above.
The fact that Dr Elliott mentioned the possibility of surgery in 2005 does not advance Mr Kennedy’s case, as it does not address the issue in dispute. It is not known if the doctor thought the surgery was a possibility because of the work incidents or for some other reason.
I do not accept the submission that no other conclusion can be reached other than that Dr Elliott’s view was that the surgery was necessitated as a result of the 2005 injury. Dr Elliott did not express the conclusion urged by Mr Kennedy.
The submission that there is no evidence that surgery would have been required regardless of the two falls is misconceived as it seeks to reverse the onus of proof. It is for Mr Kennedy to prove that the surgery was reasonably necessary as a result of the injuries, not for the Police Force to prove the reverse. In any event, the submission is incorrect as Dr Smith stated in his 2008 report that Mr Kennedy was “going to have this [the surgery] happen to him anyway whether he worked or whether he did not, or no matter what work he did”.
The submission that without the continuing symptoms arising from the aggravations the surgery would not have been necessary assumes that Mr Kennedy’s increase in symptoms in 2007 resulted from the aggravation injuries. There is no evidence to that effect and I do not accept that submission.
If I am wrong on the question of whether Mr Kennedy has discharged the onus of proof, then, on the question of whether the surgery was reasonably necessary as a result of the work injuries, I accept Dr Smith’s evidence. Unlike Dr Elliott, Dr Smith considered the question in issue and made it abundantly clear, contrary to Mr Kennedy’s submission, that he based his opinion on the fact that Mr Kennedy’s knee arthritis is a constitutional malady and that he would have required the surgery no matter what work he did. In his first report, Dr Smith also referred to the fact that both Mr Kennedy’s knees were about equally severely affected, osteoarthritis is a common condition affecting about 15% of the population, the common age of onset for knee arthritis is around 40, that Mr Kennedy’s bilateral arthritis had become symptomatic “in an episodic fashion” since 28 September 2004 and would continue to be symptomatic, and would become an increasing problem as the years passed. Mr Kennedy’s history followed exactly the pattern predicted by Dr Smith in 2005. In these circumstances, Dr Smith’s evidence is logical and persuasive.
Grounds 2 and 3
It is submitted on behalf of the Police Force that:
(a) Dr Elliott does not assert that Mr Kennedy’s surgery was caused by the aggravation injuries in 2004 or 2005;
(b) the Arbitrator noted that Dr Elliott recommended surgery “in view of [Mr Kennedy’s] deformity and increasing pain”, but did not consider what that “deformity” was or whether it had a causal nexus with Mr Kennedy’s work. The deformity was a developing “valgus deformity”, that is, a misalignment of the knee joint, which is not an aggravation of arthritis. Dr Elliott did not suggest that the valgus deformity was related to or caused by the aggravation injuries in 2004 or 2005;
(c) there is no evidence that the valgus deformity was present in January 2007. If that deformity had resulted from the aggravation injury it would have been present by January 2007;
(d) the Arbitrator has failed to give adequate (or any) weight to aggravations occurring after April 2005, in particular, the aggravation in May 2005 when Mr Kennedy was walking at the Opera House, and
(e) Dr Roe took no history of the aggravation on 26 April 2005, but did take a history of a flare-up at the Opera House in May 2005.
It is submitted on behalf of Mr Kennedy that:
(a) the decision to proceed with surgery was not only because of a developing valgus deformity but also because of severe and increasing pain in the right knee. It does not necessarily follow that a finding can be made that the cause of the surgery was the developing deformity, as that condition was not the sole determinative factor at the time;
(b) it cannot be said that the increasing pain was a result of the development of the valgus deformity. The pain had been increasing steadily since 2005. This indicates that the pain from the aggravations was continuing and could not be treated by any method other than surgery;
(c) the valgus deformity was a result of the aggravation injuries;
(d) the Opera House incident did not cause an aggravation or deterioration of Mr Kennedy’s right knee. Dr Roe described it as a “flare-up”.
For the reasons already explained above, I prefer and accept the Police Force’s submissions and I do not accept Mr Kennedy’s arguments. There is no evidence that the increasing pain in 2007, or the valgus deformity, resulted from the pleaded work injuries.
Ground 4
It is submitted on behalf of the Police Force that the Arbitrator erred in not finding an interruption to the common sense causal chain in light of:
(a) the further aggravation at the Opera House in May 2005;
(b) the fact that there was no need for knee replacement in January 2007;
(c) the development of the valgus deformity, which Dr Elliott considered the precipitant for the knee surgery and which is not asserted to be a result of any aggravation, and
(d) the heightened symptoms between January 2007 and November 2007.
It is submitted on behalf of Mr Kennedy that Dr Elliott considered as early as 2005 that a knee replacement may be needed. It was only after Mr Kennedy’s symptoms increased that Dr Elliott performed the surgery. The surgery was a last resort as a result of increasing symptoms and not the result of some new phenomenon between January 2007 and October 2007. The heightened symptoms were evident and increasing from 2005 and cannot be seen as interrupting the causal chain.
In light of my earlier findings and reasons, it is not necessary to further comment on these matters.
Ground 5
The Police Force submits that the Arbitrator has failed to provide sufficient or adequate reasons in support of her determination. It is argued that she “assessed the incorrect question” and provided insufficient reasons on material questions of fact and the applicable law. She failed to turn her mind to the question in issue, namely whether the surgery was “as a result of” the aggravation.
The allegation that an arbitrator has failed to give adequate reasons is by far the most common ground of appeal in appeals under section 352. It is an allegation that rarely has any merit and, as in the present case, is never properly considered. The Arbitrator clearly gave detailed and considered reasons in support of her conclusion. For the reasons given above, however, I have reached a different conclusion.
OTHER MATTERS
In breach of clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’), which restricts each party to only one forensic medical report, the Police Force tendered one report from Dr Fuller and two reports from Dr Smith. At a teleconference on 11 August 2009 to deal with this issue, Mr Myles, solicitor for the Police Force, suggested that Dr Smith’s reports may have been obtained because Dr Fuller, who saw Mr Kennedy in June 2005, may not have been available to provide an update report and Dr Smith’s reports should be considered to be supplementary reports under clause 43AA of the Regulation. As my primary basis for finding in favour of the Police Force is that Mr Kennedy has not discharged the onus of proof, it is unnecessary for me to determine this question. In reaching my conclusion, however, I have not had regard to Dr Fuller’s report. I have considered Dr Smith’s second report, as it is clearly a supplementary report that has clarified his original report.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded that the true and correct position is that Mr Kennedy has not discharged the onus of proof that his claimed hospital and medical expenses were incurred as a result of his work injuries in 2004 and 2005. There will be an award for the Police Force.
DECISION
The Arbitrator’s determination of 5 May 2009 is revoked and the following orders made:
“1. Award for the respondent.
2. No order as to costs.”
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
14 August 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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