Osburg v Rajkumar Stephens t/as Beecroft Cheltenham Orthopaedic Associates

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Osburg v Rajkumar Stephens t/as Beecroft Cheltenham Orthopaedic Associates [2022] NSWPIC 210
APPLICANT:	Rhonda Osburg
RESPONDENT:	Rajkumar Stephens t/as Beecroft Cheltenham Orthopaedic Associates
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	11 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses under section 60 of the Workers Compensation Act 1987 for proposed surgery, namely, right total knee replacement; Held – the applicant requires medical and related treatment resulting from injury sustained on 6 August 2018 in the course of her employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting for that injury.
DETERMINATIONS MADE:	Respondent to pay the applicant’s section 60 expenses in respect of treatment proposed by Associate Professor James Sullivan in his report of 3 August 2021, namely, a right total knee replacement and associated expenses as a result of the injury on 6 August 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant, Rhonda Osburg, (Ms Osburg) was employed by Rajkumar Stephens t/as Beecroft Cheltenham Orthopaedic Associates (the respondent) as a secretary. The respondent was insured by Employers Mutual Limited (the insurer) at the relevant time.
In the course of her employment on 6 August 2018, Ms Osburg was seated at her desk and had attempted to get out of her chair when her foot became caught on a power cable underneath the desk, which caused her to fall over and land heavily on her right side. As a result of the fall, Ms Osburg sustained injury to her right hand, right wrist, cervical spine, right shoulder, right knee and left knee. Ms Osburg alleged that there was an aggravation, acceleration, exacerbation and deterioration of the disease process in her right knee caused by her abnormal gait pattern following the injury to the left knee and also by the direct blow to the front of the right knee in the fall that occurred on 6 August 2018
Ms Osburg made a claim for medical treatment in relation to a right total knee replacement proposed by Associate Professor James Sullivan in his report of 3 August 2021, as a result of the injury on 6 August 2018.
The respondent failed to determine the claim for the proposed surgery to the right knee.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether treatment proposed by Associate Professor James Sullivan, namely, a right total knee replacement was reasonably necessary as a result of the injury on 6 August 2018.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a conciliation conference and arbitration on 6 May 2022. Ms Osburg was represented by Mr Greg Young, who was instructed by Ms Natalie Pawilikowski of Law Partners Personal Injury Lawyers. The respondent was represented by Mr Paul Stockley, who was instructed by Ms Hannah Whiting of Lee Legal Group. Ms Anita Lee from the insurer also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Amended Application to Resolve a Dispute and attached documents;
(b)    Application to Admit Late Documents filed by the applicant on 5 May 2022 and attachments;
(c)    Reply and attached documents;
(d)    Application to Admit Late Documents filed by the respondent on 28 April 2022 and attachments, and
(e)    Report of Dr Nair dated 1 March 2022.

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note that the respondent submitted that Ms Osburg has the onus of proof and must establish that the need for surgery in the right knee resulted from the injury on 6 August 2018. The respondent argued that Ms Osburg had a pre-existing condition in her right knee, namely, osteoarthritis, and that she had been advised in 2016, well before the workplace injury, that she would in time require a right knee replacement. The respondent argued that the fall on 6 August 2018 onto her knees did not cause an injury that materially contributed to the need for the knee replacement surgery recommended by Associate Professor Sullivan in his report of 3 August 2021. The respondent submitted that I could not be satisfied that the proposed right knee surgery was related to the fall on 6 August 2018 or to any change in gait after the injury to the left knee.
Ms Osburg submitted that the weight of the evidence supported a finding that the proposed surgery to the right knee was reasonably necessary as a result of the fall on 6 August 2018 and also that the aggravation, acceleration, exacerbation and deterioration of the disease process in her right knee caused by her abnormal gait pattern following the injury to the left knee on 6 August 2018.

FINDINGS AND REASONS

The respondent conceded that Ms Osburg sustained injuries to the right knee and to the left knee on 6 August 2018. There was no dispute that following that injury, Ms Osburg underwent surgery to her left knee on 30 March 2021. The respondent conceded that the treatment proposed, namely, a right total knee replacement was reasonably necessary treatment if I found that the injury on 6 August 2018 materially contributed to the need for surgery in the right knee.

Evidence of Ms Osburg

In a statement dated 14 December 2020, Ms Osburg described an incident at work on 6 August 2018 when she caught her foot on the cable of a power board causing her to trip and fall heavily on her right shoulder, right hand, and then land on both her knees and hit her head on the desk return.
Ms Osburg wrote:
“29. From the date of my workplace incident, I experienced ongoing pain and stiffness in both of my knees, which I managed with rest and medication. Due to the severity of my other injuries, I was unable to focus on properly addressing the injury to my left knee and the subsequent pain I was suffering. Hence, my initial treatments in the first few months following the workplace incident focused on the injuries to my other body parts.
30. In or around April 2019, the pain in both of my knees worsened. Particularly, the symptoms in my left knee exacerbated significantly, causing me to experience considerable pain. Due to my ongoing right knee pain, which was also extremely sore as a result of the workplace injury, I became increasingly reliant on my left knee, which consequently exacerbated the symptoms in my left knee.
31. During this time, my left knee started to crack when I was walking. In particular, I struggled to walk for long distances at a time and I was unable to walk without significant pain in my left knee.”
Ms Osburg stated that she consulted Dr Heise on 9 April 2019 who referred her for X-rays of the left knee and recommended a cortisone injection. Ms Osburg stated that she saw Associate Professor Sullivan on about 27 May 2019 and he recommended that she undergo physiotherapy rehabilitation programme. Ms Osburg said that she was unable to commence the programme or receive a cortisone injection as the insurer would not pay for that treatment.
Ms Osburg stated that in early 2020 the condition of her left knee continued to deteriorate and she experienced significant pain and instability in the left knee and walked with a limp. She said that in about June 2020 Associate Professor Sullivan recommended that she undergo a total left knee replacement.
Ms Osburg stated that due to the pain in her left knee she had to use crutches or a walking stick. Prior to the workplace injury, Ms Osburg said that she enjoyed walking around 30 kilometres a week.
In a supplementary statement dated 10 March 2022, Ms Osburg said that the insurer had agreed to pay for a left knee replacement on 12 February 2021. On 30 March 2021 she underwent a left total knee replacement performed by Associate Professor Sullivan. She said that she had a good result from the left total knee replacement surgery, however, her right knee remained painful.
Ms Osburg stated under “Previous Medical History” that she consulted Dr Duffy on 23 December 2014 as she had pain in both her knees after a fall three months prior. She said that she had some difficulty walking but then felt she was gradually improving. Ms Osburg stated that she again complained of knee pain on 20 April 2015 to Dr Duffy who prescribed medication.
Ms Osburg stated that on 12 April 2016 she attended Associate Professor Sullivan complaining about a painful right knee. He referred her for an MRI scan and she returned to see him on 18 April 2016. Ms Osburg said that Associate Professor Sullivan reviewed the MRI scan and advised her that she had degeneration of the right knee and encouraged her to have a cortisone injection to settle down the pain. She said that she underwent the cortisone injection and it provided her with great relief and apart from taking off an afternoon, she was able to continue working full time.
Ms Osburg stated that she returned to see Dr Heise on 30 January 2017 complaining of pain in both knees and he told her that she had bilateral osteoarthritis. She stated that she was still able to manage her pain conservatively and only took one day off work.
Ms Osburg wrote:
“26. I have been using a walking stick and crutches both before my operation and after my operation.
27.    My right knee is locking, crunching and collapsing, and has been doing so more frequently since my operation.
28.    I am limping as a result of my painful right knee….
30.    I have no stability in my right knee. My right knee has been painful since my workplace injury, however, following my total left knee replacement, the pain in my right knee has quickly deteriorated…”

Medical reports

Medico-legal reports

In a report dated 10 August 2020, Dr James Bodel, consultant orthopaedic surgeon, noted that Ms Osburg injured both her knees, right shoulder, right wrist and hand and had a closed head injury in the fall on 6 August 2018. He reported that she had a scaphoid fracture in the right wrist. Dr Bodel wrote: “She has also developed pain in both knees, the left worse than the right and this has come on gradually over time without additional accident or injury”.
Dr Bodel noted that Ms Osburg had previous problems with the right knee about two years ago and this was made worse by the fall. He noted that she used to enjoy walking six days a week up to about five kilometres each trip but could no longer do this because of the increasing pain in her knees.
On examination, Dr Bodel noted that Ms Osburg walked with a left sided limp and used a Canadian crutch because of the knee pain. He reported that there was no abnormal varus or valgus angulation in either knee. Dr Bodel concluded that Ms Osburg suffered an injury to both knees. He wrote:
“In the left knee there has been a rapid deterioration in the appearance of the left knee with almost no arthritic change in December 2014 to severe bone on bone finding in the medial compartment on 10 March 2020, six years later. The event at work is a substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of that disease process in the left knee”.
Dr Bodel noted that Associate Professor Sullivan had recommended a total knee replacement and considered that was appropriate. He wrote: “She will eventually need a total knee replacement on the right side as well but the left knee is a priority.”
In a report dated 11 October 2021, Dr Bodel noted that Associate Professor Sullivan had performed a left total knee replacement on 30 March 29021 and there was a good outcome some six months after surgery. He noted that approval had been sought from the insurer for a right total knee replacement but approval had not been forthcoming. Dr Bodel wrote: “There has been a past history of injury to the right knee and it appears on the basis of that past history that approval is not forthcoming. This lady indicates however that the right knee was functioning quite well at the time that this fall occurred.”
Dr Bodel concluded that Ms Osburg had “previous minor injury to the knee prior to this injury which came on gradually. She had an injection of cortisone in the past and had recovered very well”. He wrote: “The fall that is the subject of this claim has caused aggravation to that previously asymptomatic knee injury for which total knee replacement is now recommended”.
Dr Bodel wrote:
“This lady had a trip and fall injury where she injured both knees in that fall. She has had successful surgery on the left hand side and is awaiting surgery on the right hand side which is reasonably necessary treatment in my view for this injury.
At the very least, the injury on the right side is the aggravation, acceleration, exacerbation and deterioration of previous degenerative change in the right knee which had been asymptomatic.”
Dr Bodel confirmed that Ms Osburg had a disease process of gradual onset in both knees and the right knee in particular and there had been an aggravation, acceleration, exacerbation and deterioration of that disease process caused by her abnormal gait pattern following the injury to the left knee and also by the direct blow to the front of the right knee in that fall that occurred on 6 August 2018. He noted that Ms Osburg was incapacitated for work as she was awaiting further treatment including the total knee replacement and she may require treatment for the right shoulder including surgery. Dr Bodel noted that alternative conservative treatment for the right knee had been exhausted at this stage and it was acceptable practice for a total knee replacement for this type of pathology.
In a report dated 20 April 2022, Dr Bodel noted he had read the report of Dr Nair dated 1 March 2022 and agreed with Dr Nair that Ms Osburg had clinical evidence of widespread osteoarthritic change. He noted that Dr Nair considered based on the bilateral X-rays of the knees dated 18 April 2016 that there had been no significant or material change as a consequence of employment. Dr Bodel expressed the view that the injury on 6 August 2018 caused an aggravation, acceleration, exacerbation and deterioration of that disease process, and Dr Bodel disagreed with Dr Nair’s view that there was no evidence of any ongoing work-related injury to the right knee. Dr Bodel wrote:
“This lady’s function in the knee has steadily deteriorated since the event that caused the pain in the knee on 6 August 2018, and that is the aggravation, acceleration, exacerbation and deterioration of the disease process that I have referred to”.
In a report dated 1 March 2022, Dr Anil Nair, Consultant orthopaedic surgeon, described under “sequence of events” the following:
“She stated that she had a trip and fall whilst performing her normal duties on 6/8/2018…She stated she caught a foot and fell heavily onto the right side of her body. She stated that she struck her right shoulder, head and right wrist. She stated that following the fall she consulted a hand surgeon, Ian Edmunds. He diagnosed a scaphoid fracture. She was placed in a cast. She was also placed in a sling. She consulted an orthopaedic surgeon, Professor Bokor, Conservative care was recommended.
She re-consulted Professor Sullivan, an orthopaedic surgeon who she had previously consulted for her right hip as well as bilateral knees. She underwent a left total knee replacement in March of 2021. This was complicated by an infection and she underwent a debridement on April of 2021...”
Dr Nair noted that walking tolerances were limited and she walked with a walking stick. Dr Nair stated that there was unequivocal evidence of pre-existing osteoarthritis in the right knee and referred to the X-rays dated 13 April 2016. He wrote: “Based on the evidence at hand, there has been no significant or material change as a consequence of employment.”
In a report dated 14 April 2022, Dr Nair was requested to state the probability that the surgery would have been required anyway, at about the same time or same stage of the worker’s life, if he [sic] had not sustained the injury or aggravation at work and wrote:
“As stated in my previous report based on the evidence available the right knee condition was degenerative in aetiology. Ms Osburg demonstrated an intrinsic tendency towards the development of degenerative arthritis. She has symptoms affecting multiple joints”.
Dr Nair stated that it was hard to relate the right knee symptoms to the incident on 6 August 2018 and based on the evidence to hand the right knee symptoms related to a degenerative condition. He considered that any aggravation would have ceased by now and that the residual symptoms were almost certainly due to degenerative condition. Dr Nair concluded that it was appropriate to consider surgery and it was likely she would do well following surgery and be able to return to a reasonable functional status.

Reports of treating doctors

In a report dated 12 April 2016 Associate Professor James Sullivan, treating orthopaedic specialist, noted that Ms Osburg presented with a month of increasing pain in her right knee. She told him that she was walking when the knee gave way and she had quite severe pain well localised to the lateral aspect of the knee and associated with some crunching. He noted that the knee ached constantly at night and she was using a crutch to get around. She also got some pain in her left knee.
On examination Associate Professor Sullivan noted that her gait was antalgic on the right side. There was no obvious effusion in the right knee and range of motion was from near full extension and there was pain on forced extension to 105°. There was tenderness in the lateral compartment and patellofemoral crepitus. He considered that she may have torn her lateral meniscus or have evolving degenerative changes of the knee and needed MRI scan and plain films.
In a report dated 18 April 2016 Associate Professor Sullivan noted that the MRI scan showed a de-functioning medial meniscus with a posterior root tear and moderate osteoarthritis of the medial compartment and patellofemoral joint and a Baker’s cyst. He wrote:
“Mrs Osburg has degeneration of the right knee but the joint space is better than on the left side which she is managing well. I think it would be worthwhile trying to settle the knee down with a cortisone injection and a graded exercise programme. At some stage down the track she will require an arthroplasty but hopefully this Is some years off”.
In a report dated 27 May 2019 Associate Professor Sullivan noted Ms Osburg had a fall on 6 August 2018 and sustained a fractured right scaphoid, injury to her head and right shoulder and landed on both knees. He wrote: “Since then both knees have been sore, particularly the left one, the left one has been giving way. Walking distance is dramatically reduced and she is struggling just with day to day activities.” On examination he observed a rolling gait perhaps more antalgic on the left, both knees in slight varus, minor fixed flexion and a range of motion to about 100 degrees. He noted that x-rays showed quite advanced osteoarthritis of the left knee.
Associate Professor Sullivan wrote:
“Ms Osburg has aggravated her underlying osteoarthritis from the fall and it has got a lot worse since she has been deconditioned. Her knee is very sensitive to touch and there is an element of a pain syndrome as well, so at this stage I do not think that she would do well with any surgical intervention.
I recommend that she undergo a rehabilitation course at Mount Wilga. It would be also beneficial if we could reduce some of the analgesics she is on. If she can get a better tone to her muscles she might be able to put off surgery for some time.”

In a report dated 2 September 2019 to the insurer, Associate Professor Sullivan assessed Ms Osburg as suffering from quite advanced osteoarthritis of the left knee with bone on bone contact in the medial compartment. He stated that Ms Osburg’s osteoarthritis obviously predated the fall in August 2018 however the fall caused an aggravation of her symptoms and led to a loss of muscle tone and fitness which would also have aggravated the osteoarthritis in the left knee. He wrote:
“Unfortunately when there is an aggravation to a pre existing arthritic knee, the effects may be ongoing. I recommended that she be managed non operatively for the time being and have recommended a Cortisone injection.
I would note that Ms Osburg’s osteoarthritis in the left knee would have progressed in any event however, the fall has made her symptomatic since that time.”
In a report dated 29 June 2020 Associate Professor Sullivan noted that Ms Osburg was really struggling with her left knee and she could not walk more than a couple of hundred metres. He noted that she was limping badly. He reported that X-rays showed advanced osteoarthritis of the left knee, mainly in the medial compartment. Associate Professor Sullivan expressed the opinion that Mrs Osburg is at the stage where she needed some form of arthroplasty and considered that she was better suited to a total knee replacement.
In a report dated 6 October 2020 Associate Professor Sullivan noted that Ms Osburg was struggling with pain in both her knees, although worse on the left. He noted that she was not able to exercise and used a stick to get around. He reported that examination confirmed her gait to be antalgic, probably more so on the left. Associate Professor Sullivan wrote:
“Mrs Osburg’s osteoarthritis has progressed quite significantly since x-rays were done last year. She is now at the stage where she will need to have them both replaced, preferably staged rather that simultaneously because of risk factors. She was essentially asymptomatic prior to the fall she sustained in August 2018 and it would be reasonable to state that this has caused an acceleration and deterioration of her osteoarthritis and is likely to have bought forward significantly the date of intervention”.
In a report dated 19 April 2021 Associate Professor Sullivan noted that Ms Osburg was almost three weeks post left knee replacement. He reported that she had a break down in the lower end of the wound and had started antibiotics. He advised her to elevate the leg as much as possible.
In a report dated 27 April 2021 Associate Professor Sullivan noted that Ms Osburg underwent exploration of her left knee wound with debridement and closure at the San Hospital. He noted she would be kept on IV antibiotics and that mobilisation would be limited.
In a report dated 24 May 2021 Associate Professor Sullivan noted he had reviewed Ms Osburg and her wound was fully healed.
In the MRI report of the right knee dated 14 April 2016, Dr Andrew Stuart, radiologist, wrote:
“1.     There is a cross-sectional width tear of the posterior root attachment of the medial meniscus which has resulted in medial extrusion of the meniscal body.
2.      Moderate osteodegenerative change involves the medial compartment.
3.      There is moderate to marked patella chondral degeneration”.
The clinical notes and records from Macquarie Medical Centre contained the following documents and entries:
(a)    In an entry dated 23 December 2014 Dr John Duffy noted: “Fall three months ago onto both knees >>lower limb bruising>>difficulty walking >> gradually resolved”.
(b)    In an entry dated 20 April 2015, Dr Duffy noted: “Acute left knee pain – medial…” and prescribed a trial of cogout, naproxen and Nexium cover.
(c)    In an entry dated 12 April 2016, Dr Geoffrey Heise, treating general practitioner, wrote “Right knee failing” and referred Ms Osburg to Associate Professor Sullivan.
(d)    In an entry dated 21 June 2016, Dr Duffy wrote:
“See Dr Sullivan's letter:
Degenerative disease both knees
Right deteriorating Meniscal degeneration,
Baker's cyst and verbal report of femoral oedema implying chondral loss or stress
# Crutch support injection or steroid ineffective
will see Dr Sullivan in follow up.”
(e)    In an entry dated 30 January 2017, Dr Heise noted; “History: crepitus pain both knees due TKR eventually. Reason for contact: Bilateral osteoarthritis – Knee.”
(f)    In an entry dated 7 August 2018, Dr Heise noted: “fall landing knees right hand right shoulder, pain base 1^st carpo metacarpal. …Knee FULL ROM tender over pater insertion nil# patella”.
(g)    In a State Insurance Regulatory Authority (SIRA) Certificate of Capacity dated 7 August 2018, Dr Heise made a diagnosis of “multiple bruising R hand R elbow R shoulder R knee”, noting Ms Osburg had a fall in the office.
(h)    On 9 April 2019 Dr Heise noted: “pain crepitus left knee Diagnostic imaging requested plain ray L knee - ? osteoarthritis.”
(i)    On 4 May 2019 Dr Heise noted: “left knee right shoulder right hand.”
(j)    On 3 June 2019, Dr Heise noted: “due knee replacement J Sullivan W cover”.
(k)    On 22 September 2020 Dr Heise wrote: “pain right knee examination lateral compartment swelling nil meniscal.” He referred Ms Osburg for a plain x ray – R knee.
(l)    In a referral to Dr S Gupta, Orthopaedic Specialist, dated 22 September 2020, Dr Heise wrote: “History and Clinical Findings – O/A L knee for consideration of arthroplasty. She is now experiencing pain in the lateral compartment of the R knee. Symptoms suggestive of meniscal injury however not demonstrated. Have arranged plain ray.”

Discussion

The matter to be determined is whether the surgery proposed by Associate Professor Sullivan, namely, a right total knee replacement, was reasonably necessary as a result of the injury on 6 August 2018.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated [at 462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, 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 common sense 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.”
The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”.
In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12 , McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
The applicant referred to the decision in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 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]; 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.”
The respondent did not dispute that Ms Osburg had sustained injuries to her right knee and to her left knee when she fell on 6 August 2018. Further, there was no dispute that Ms Osberg had a pre-existing degenerative condition in both knees, namely osteoarthritis, at the time of the fall on 6 August 2018.
Ms Osburg gave evidence that on 6 August 2018 she tripped and fell heavily on her right shoulder and right hand and then landed on both her knees and hit her head on the desk return. She stated that from the date of that workplace incident she experienced ongoing pain and stiffness in both of her knees, which she managed with rest and medication. She said that due to the severity of her other injuries, she was unable to focus on properly addressing the injury to her left knee and initial treatments in the first few months following the workplace incident focused on the injuries to other body parts.
Ms Osburg stated that around April 2019, the pain in both of her knees worsened, and particularly, the pain in the left knee exacerbated. She said that due to the ongoing right knee pain, which was also extremely sore as a result of the workplace injury, she had become increasingly reliant on her left knee, which consequently exacerbated the symptoms in my left knee. She stated that due to the pain in her left knee she had to use crutches or a walking stick. Ms Osburg said that she enjoyed walking around 30 kilometres a week prior to the workplace injury.
On 12 February 2021 the insurer had agreed to pay for a left knee replacement. On 30 March 2021 Ms Osburg underwent a left total knee replacement performed by Associate Professor Sullivan. She said that she had a good result from the left total knee replacement surgery, however, her right knee remained painful.
Ms Osburg stated that she used a walking stick and crutches both before the operation and after it. She said that her right knee was locking, crunching and collapsing, and had been doing so more frequently since my operation. She stated that she was limping as a result of her painful right knee. She wrote: “My right knee has been painful since my workplace injury, however, following my total left knee replacement, the pain in my right knee has quickly deteriorated…”
Ms Osburg’s account of the workplace incident on 6 August 2018 was confirmed by Dr Heise in his clinical notes of 7 August 2018. Dr Heise noted that Ms Osburg had a fall landing on her knees, right hand, right shoulder and there was pain on the base of the first carpometacarpal. He noted that the “knee” had a full range of motion but was tender over the “pater” insertion. In the medical certificate issued on 7 August 2018, Dr Heise made a diagnosis of “multiple bruising R hand R elbow R shoulder R knee”.
Dr Bodel noted that Ms Osburg injured both her knees, right shoulder, right wrist and hand and had a closed head injury in the fall on 6 August 2018. He reported that she developed pain in both knees, the left worse than the right which had come on gradually over time without additional accident or injury. Dr Bodel noted that Ms Osburg had previous problems with the right knee about two years ago and this was made worse by the fall. He noted that she used to enjoy walking six days a week up to about five kilometres each trip but could no longer do this because of the increasing pain in her knees. He noted that Ms Osburg indicated that the right knee was functioning quite well at the time that the fall occurred.
Dr Bodel concluded that Ms Osburg had previously some minor injury to the right knee prior to this injury on 6 August 2018 and had an injection of cortisone and recovered very well. Dr Bodel was of the opinion that the fall on 6 August 2018 had caused aggravation to that previously asymptomatic knee injury for which total knee replacement was now recommended. He concluded that the injury to the right knee was an aggravation, acceleration, exacerbation and deterioration of previous degenerative change in the right knee which had been asymptomatic. Dr Bodel also expressed the view that there had been an aggravation, acceleration, exacerbation and deterioration of that disease process in the right knee caused by an abnormal gait pattern following the injury to the left knee and also by the direct blow to the front of the right knee in that fall that occurred on 6 August 2018.
Dr Nair noted that Ms Osburg stated she caught a foot and fell heavily onto the right side of her body and struck her right shoulder, head and right wrist. Dr Nair did not take a history of Ms Osburg landing on her knees in the fall.
Dr Nair stated that there was evidence of pre-existing osteoarthritis in the right knee and referred to the X-rays dated 13 April 2016. He expressed the view that there had been no significant or material change as a consequence of employment. He considered that the right knee condition was degenerative in aetiology and Ms Osburg had an intrinsic tendency towards the development of degenerative arthritis.
Dr Nair stated that it was “hard to relate” the right knee symptoms to the incident on 6 August 2018 and, based on the evidence to hand, the right knee symptoms related to a degenerative condition. He considered that any aggravation would have ceased by now and that the residual symptoms were almost certainly due to degenerative condition.
On 2 September 2019 Associate Professor Sullivan assessed Ms Osburg as suffering from quite advanced osteoarthritis of the left knee and stated that this obviously predated the fall in August 2018, however, the fall caused an aggravation of her symptoms and led to a loss of muscle tone and fitness which would also have aggravated the osteoarthritis in the left knee. He noted that when there was an aggravation to a pre-existing arthritic knee, the effects may be ongoing. Associate Professor Sullivan noted that Ms Osburg’s osteoarthritis in the left knee would have progressed in any event; however, the fall has made her symptomatic since that time.
On 6 October 2020 Associate Professor Sullivan noted that Ms Osburg was struggling with pain in both her knees, although worse on the left, was not able to exercise, and used a stick to get around. Examination confirmed her gait to be antalgic, probably more so on the left. Associate Professor Sullivan considered that Ms Osburg’s osteoarthritis had progressed quite significantly since X-rays were done in the last year. He considered that she was now at the stage where she needed to have both knees replaced, preferably staged rather that simultaneously because of risk factors. Associate Professor Sullivan noted that Ms Osburg was essentially asymptomatic prior to the fall she sustained in August 2018 and it would be reasonable to state that this fall had caused an acceleration and deterioration of her osteoarthritis and was likely to have bought forward significantly the date of intervention.
The respondent noted that Ms Osburg had been advised in 2016 that she would in time require a right knee replacement. The respondent argued that the fall on 6 August 2018 onto her knees did not cause an injury that materially contributed to the need for the right knee replacement surgery recommended by Associate Professor Sullivan in his report of 3 August 2021.
The first reference to knee problems in the clinical notes was found in an entry dated 23 December 2014 by Dr John Duffy who noted: “Fall three months ago onto both knees >>lower limb bruising>>difficulty walking >> gradually resolved”.
The next reference to knee problems was in an entry dated 12 April 2016, when Dr Heise wrote “Right knee failing” and referred Ms Osburg to Associate Professor Sullivan.
Associate Professor Sullivan in a report dated 12 April 2016, noted that Ms Osburg presented with a month of increasing pain in her right knee. He noted that she had quite severe pain well localised to the lateral aspect of the knee and was using a crutch to get around. On examination Associate Professor Sullivan noted that her gait was antalgic on the right side. He considered that she may have torn her lateral meniscus or have evolving degenerative changes of the knee and needed MRI scan and plain films.
In the MRI report of the right knee dated 14 April 2016, Dr Stuart, reported that there was a cross-sectional width tear of the posterior root attachment of the medial meniscus which had resulted in medial extrusion of the meniscal body, moderate osteodegenerative change involving the medial compartment, and moderate to marked patella chondral degeneration.
Associate Professor Sullivan in his report dated 18 April 2016 noted that the MRI scan showed a de-functioning medial meniscus with a posterior root tear and moderate osteoarthritis of the medial compartment and patellofemoral joint and a Baker’s cyst. He concluded that Ms Osburg had degeneration of the right knee and thought it would be worthwhile trying to settle the knee down with a cortisone injection and a graded exercise programme. Associate Professor Sullivan did write “At some stage down the track she will require an arthroplasty but hopefully this Is some years off”.

There were two further entries in the clinical noted relating to knee problems. In the entry dated 21 June 2016, Dr Duffy referred to Dr Sullivan's letter and identified degenerative disease both knees and right deteriorating meniscal degeneration. He noted that Ms Osburg would see Associate Professor Sullivan for follow up if the crutch support and injection were ineffective. The final entry was on 30 January 2017, when Dr Heise noted; “History: crepitus pain both knees due TKR eventually. Reason for contact: Bilateral osteoarthritis – Knee”. There were no entries in the clinical notes of the treating general practitioner concerning knee problems or pain between 30 January 2017 and 7 August 2018, that is, the day after the fall at work on 6 August 2018.
I accept that Ms Osburg was advised in 2016 by Associate Professor Sullivan that in time she would require a right knee replacement. However, I am satisfied that after having the cortisone injection recommended by Associate Professor Sullivan, her right knee symptoms settled down. She did not consult Associate Professor Sullivan again until after the fall on 6 August 2018. Although the entry on 30 January 2017 referred to a history of crepitus pain in both knees, no further treatment was recommended apart from the continued prescription of medication.
Ms Osburg gave evidence, which I accept, that the cortisone injection she had after seeing Associate Professor Sullivan in April 2016 provided her with great relief. I accept her evidence that until the fall in August 2018 she was able to function normally and, in particular, walked five kilometres a day, six days a week. She told Dr Bodel that her right knee was functioning quite well before the fall on 6 August 2018. However, after the fall at work on 6 August 2018 which involved landing on her knees, that is, a direct impact on the knees, she experienced ongoing pain and stiffness in both of her knees. The condition in her knees continued to deteriorate and I accept Associate Professor’s Sullivan’s opinion that the fall had made her knees symptomatic since that time.
Dr Nair expressed the view that any aggravation would have ceased by April 2022 and that the residual symptoms were almost certainly due to degenerative condition and not to the fall at work on 6 August 2018. Firstly, I do not accept Dr Nair’s opinion concerning causation because the symptoms caused to her knees in the fall in August 2022 continued and indeed got worse. This was not a situation such as the one Ms Osburg experienced in 2014 when she fell onto her knees but her symptoms gradually improved and resolved. Secondly, Dr Nair was the only doctor who failed to take a history of a fall which involved landing on her knees. I accept the Ms Osburg’s account of the fall which was confirmed in the histories she provided to Dr Heise, Dr Sullivan and Dr Bodel. Therefore, Dr Nair’s opinion as to causation was based on an incorrect history of the mechanism of injury. Thirdly, Dr Nair did not properly consider whether the change in gait following the injury to the left knee caused further aggravation, acceleration, exacerbation and deterioration in the right knee.
Dr Bodel expressed the opinion that the abnormal gait pattern following the injury to the left knee in the fall on 6 August 2018 caused an aggravation, acceleration, exacerbation and deterioration of that disease process. Associate Professor Sullivan also observed changes in gait and expressed the opinion that the fall had caused an aggravation of her symptoms and led to a loss of muscle tone and fitness which would also have aggravated the osteoarthritis in the left knee. On balance I am satisfied that such a loss of muscle tone and fitness would have also occurred in the right knee particularly in view of Ms Osburg’s inability to exercise as she used to do before the fall in August 2018 and her immobility following the left knee replacement surgery on 30 March 2021 and the complications following that surgery.
I prefer the evidence of Associate Professor Sullivan and Dr Bodel. Associate Professor Sullivan had the benefit of treating Ms Osburg for many years and was certainly in the best position to assess causation, particularly in view of his consultations with Ms Osburg in 2016 when she experienced problems with her right knee. I accept Associate Professor’s Sullivan’s opinion that the fall had caused an acceleration and deterioration of Ms Osburg’s osteoarthritis and was likely to have bought forward significantly the date of intervention.
The weight of the medical evidence supports a finding that Ms Osburg sustained a direct injury to her right knee and to her left knee in the fall on 6 August 2018 and that injury was an aggravation, acceleration, exacerbation and deterioration of a pre-existing osteoarthritis in the knees. I am satisfied that the aggravation, acceleration, exacerbation and deterioration of a pre-existing osteoarthritis caused by the fall on 6 August 2018 made a material contribution to the need for the total right knee replacement proposed by Associate Professor Sullivan and the medical treatment is reasonably necessary as a result of the injury on 6 August 2018.
I order that the respondent pay Ms Osburg’s section 60 expenses in respect of the treatment proposed by Associate Professor Sullivan, namely, a total right knee replacement and associated expenses on production of accounts and/or receipts as a result of the injury on 6 August 2018.

[2022] NSWPIC 210

11 May 2022