Papa v R P Bricklaying Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Papa v R P Bricklaying Pty Limited [2022] NSWPIC 30
APPLICANT:	Robert Papa
RESPONDENT:	R P Bricklaying Pty Limited
MEMBER:	Michael Wright
DATE OF DECISION:	24 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of past right hip replacement surgery pursuant to section 60 as a result of disputed injury to the right hip on 5 April 2016 and also right hip condition consequential to injury to the right ankle and foot on 5 April 2016 by way of altered gait; Ly v Jitt Offset Pty Ltd, Kooragang Cement Pty Ltd v Bates, Henville v Walker; novus actus and Roads and Traffic Authority v Royal, Henville considered; multiple causes and material contribution; Murphy v Allity Management Services Pty Ltd; Held - surgery was reasonably necessary as a result of both injury to the right hip on 5 April 2016 and right hip condition consequential to injury to the right ankle and foot on 5 April 2016; award in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. Right total hip replacement performed on 12 January 2021 by Dr Rhandhawa (the surgery) was reasonably necessary as a result of both injury to the right hip sustained by the applicant on 5 April 2016 and right hip condition consequential to injury to the right ankle and foot on 5 April 2016. The Commission orders that: 2. The respondent to pay the costs of and related to the surgery in accordance with section 60 of the Workers Compensation Act 1987. 3. General order that the respondent pays the applicant’s medical, hospital and treatment expenses pursuant to section 60 in respect of his right hip condition.

STATEMENT OF REASONS

BACKGROUND

This is an application made by Mr Robert Papa (the applicant) for the cost of medical expenses for and related to a total right hip replacement that was performed by
Dr Rhandhawa on 12 January 2021 said to be as a result of injury arising out of or in the course of his employment with R P Bricklaying Pty Limited (the respondent) on 5 April 2016, or for a right hip condition consequential to the accepted right ankle and foot injury on 5 April 2016.
The respondent disputed liability for injury to the right hip on 5 April 2016 or for the condition of the right hip consequential to the accepted injury to the right ankle and foot.

PROCEDURE BEFORE THE COMMISSION

The applicant was represented at the conciliation/arbitration hearing of this matter on 28 October 2021 by Mr Tanner of counsel, instructed by Mr Dous, solicitor, and the respondent by Mr A Parker of counsel, instructed by Ms Israel, solicitor.
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) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents;

(c) Report of Dr Bodel dated 2 September 2019;

(d) Application to Admit Late Documents dated 19 August 2021, and

(e) Application to Admit Late Documents dated 18 October 2021.

Oral Evidence

There was no application to cross-examine the applicant nor to give oral evidence.

The applicant’s statement

The applicant provided a statement dated 6 April 2021. He stated that he suffered from osteoarthritis in his right hip however he was asymptomatic and had not experienced any flareups of his right hip prior to the subject injury on 5 April 2016. He stated that he had worked as a bricklayer for all of his working life. He stated that on 5 April 2016 his business was contracted to do bricklaying work for the respondent.
The applicant stated that on 5 April 2016 he was on the work site and performing his work whilst standing on a piece of scaffold. He stated that he was leaning over a wooden framing brace which gave way and he fell forward about a distance of 1 m and landed very heavily on his right heel, jarring his back, bilateral knees, bilateral shoulders and bilateral hips. He stated that the ground was levelled with concrete. He stated that he felt immense pain, particularly in the right foot and ankle. His wife took him to the Hawkesbury Hospital and he underwent x-rays of his right foot.
He was treated at the hospital by Dr Michael Walsh, orthopaedic surgeon, who recommended a walking boot for conservative management and physiotherapy, as well as refraining from weight-bearing for a period to allow for recovery of the right ankle and foot. He stated that when he began weight-bearing he had severe pain and stiffness in his right ankle and foot.
The applicant stated that he consulted his GP, Dr Kong, who referred him to Associate Professor Kuo, orthopaedic surgeon. The applicant stated that on 26 July 2018 he underwent surgery to his right subtalar joint, an arthrodesis bone graft, by A/Prof Kuo. He stated that the surgery did not assist and he continued to experience persistent pain and stiffness in his right foot and ankle.
The applicant stated that following the surgery he noticed that he was walking with a slight limp because of his right foot and ankle, and he said that he was attempting to shift the pressure of his body weight so as to relieve some of the pain. He stated that over time the change in his gait placed undue load and strain on his lower back and left and right hips. He stated that he noticed gradual onset of pain which was much worse in his right hip than his left hip or lower back.
The applicant stated that he tried physiotherapy which did not give him any relief in his right hip. He stated that when the pain in his right hip is severe he takes various medications such as Celebrex, Lyrica, lovan, Panadol osteo, Panadeine forte and Norspan patch. The applicant stated that he tried to lose weight but the pain continues.
The applicant stated that due to continuing pain, he was referred to Dr Gayagay, hip, knee, and sports trauma surgeon. He stated that Dr Gayagay submitted on 24 March 2020 a request for surgery for a right hip arthroscopy. The applicant stated that following an examination by a specialist arranged by the GIO, approval for the surgery was declined on 2 September 2020. He said that he discussed the risks of the proposed surgery with
Dr Gayagay.
He stated that on 10 January 2021 he was trying to get out of bed and he “collapsed due [to] excruciating pain” in his right hip “as my lower limbs gave way”. The applicant stated that as he got up his right hip “seized up” and he “collapsed onto the ground”. He said that he attended the Norwest Emergency Department the next day as the pain was so severe. The applicant stated that he was attended to by Dr Randhawa, who recommended a total right hip replacement without delay.
The applicant stated that he underwent a total right hip replacement surgery on 12 January 2021 and he was discharged three days later. He stated that following the surgery he noticed a significant improvement in pain and mobility of his right hip, although he continues to experience occasional numbness in his right upper thigh area following the surgery.

Hospital records

Attached to the ARD was an Emergency Department Discharge Summary of the Hawkesbury Private Hospital in respect of an attendance by the applicant on 5 April 2016. The clinical summary was that the applicant presented to the emergency Department “following a fall off ladder 1.5 m height. He fell onto R heel followed by R knee and R wrist. Denies any head or back trauma”. The diagnosis noted an x-ray and CT of the right foot which “showed a comminuted calcaneus involving subtalar joint”. The applicant was seen by an orthopaedic surgeon “who advised compression bandage and NWB till r/v by orthopaedic surgeon”. It was noted that the applicant was to be reviewed by Dr Walsh in one week.
In a Nursing Discharge Summary of the Norwest Private Hospital dated 27 July 2018, it was noted that the applicant was admitted on 26 July 2018 with an admission reason “right subtalar joint arthrodesis bone graft/augment PDGF”. It was noted that the attending consultant was A/Prof Roderick Kuo. Past medical history was noted as “hernia repair with mesh, arthritis, back pain”. It was noted that the applicant was admitted on 26 July for theatre and post operatively he recovered well with no issues.
Clinical records of the Norwest Private Hospital were attached to the ARD. In an operation report dated 12 January 2021, the surgeon was noted as Dr Randhawa. The indication for procedure was described as “right hip osteoarthritis” and the operation performed was “right total hip replacement (anterior) with bone graft”. No other history was recorded.

Radiology

Attached to the ARD were reports of Dr Reeves dated 5 April 2016 of x-rays of the right ankle, foot and right hand, a CT scan of the right calcaneus and x-rays of the pelvis and right hip, and right tibia and fibula.
In his report dated 5 April 2016 of the x-ray of the pelvis and right hip, Dr Reeves noted a clinical history of a fall from 1.5 m height. He noted findings which included that the pelvis showed intact cortical outline with no evidence of a fracture of the pelvis. He concluded that there was no fracture or dislocation in the pelvis or the right hip and “mild to moderate OA change in the right hip”.
I will refer to other imaging reports below.

Annangrove Medical Centre

Attached to an Application to Admit Late Documents were the clinical records of the Annangrove Medical Centre, including the notes of the applicant’s treating GPs from time to time.
In an entry dated 8 October 2002, Dr Chaudry recorded that the applicant “slipped and fell on a wet shopfloor in Riverstone. Landed on the R hip and back, [complained of] pain in the Hill side of the back, [especially] on movements like bending forward… [on examination] no spinal or soft tissue tenderness, pain mainly in the L para lumbosacral area…”.
Dr Chowdhury diagnosed “back pain” and prescribed Voltaren, heat and rest. I was not taken to any further clinical note entries in relation to this incident.
In an entry dated 21 January 2014, Dr Stojanovic noted a history of persisting pain in the right groin and noted on examination “small bulge evident when standing and has a cough impulse. Also slight cough impulse on L side”. He arranged for an ultrasound to confirm possible right inguinal hernia. On 4 February 2014, Dr Stojanovic noted that “returns with scan which shows direct inguinal hernia. Symptoms of pain first began Wednesday 15 January. Had ache and burning sensation in R groin while laying bricks”. On examination, he noted “direct inguinal hernia confirmed on scan”.
On 15 October 2014, Dr Stojanovic noted a history that the applicant “had [right inguinal] hernia repair 3 weeks ago. Has some RIF pain”. On examination, he noted “mild tenderness in RIF. No rebound. No hernia recurrence”. The reason for contact was noted “abdominal pain – right iliac fossa… Reassure, common pain. Takes a full 6 weeks for complete healing”.
In an entry dated 7 April 2016, Dr Stojanovic noted a history that “on 5 April fell off scaffolding at work. Was reaching for a timber indoor way when it gave way. Landed on concrete slab approx 1.5 m below. Pain in R heel. Seen at Hawkesbury. Only bony injury is comminuted fracture of R calacaneus”. On examination, it was noted “CT reviewed. Comminuted fracture, involvement of joint linings. May still require internal fixation”. The reason for contact was noted as “right fracture – calcaneal”.
In an entry dated 16 February 2018, provided in the Reply, the treating GP, Dr Kong, recorded a case conference organised by the rehabilitation provider. That clinical note did not refer to a history of right hip injury or symptoms, although a note was made of the findings of a right hip MRI (undated).
In a referral letter dated 16 February 2018 from Dr Kong to Prof Owler, Dr Kong noted that the applicant had “right ankle injury in April 2016, limping gate, increased back pain and hip pain after injury”. Dr Kong also noted that as well as the lumbar pain, the applicant was “also complaining of increased bilateral hip pain due to limping gesture, has been compensating since he has ankle injury. Started with left hip pain, then now mainly putting weight on right hip”.
In a medical certificate dated 22 March 2018, Dr Kong certified that consistent with injury on 5 April 2016 there was a “right ankle fracture, lumbar spine foraminal stenosis and bilateral hip pain aggravated from injury”.
In an entry dated 19 January 2021, Dr Dommaraju noted that the applicant “presented to emergency a week ago with severe hip pain and [had] an emergency THR done”. No other history was recorded and the reason for the visit was stated as “cervical disc prolapse”.

Dr Martin

Attached to the ARD was a report of Dr Martin, foot and ankle surgeon, paediatric orthopaedic surgeon, dated 9 February 2017 to the applicant’s GP. Dr Martin recorded a fall about a year previously while the applicant was working as a scaffold when he fell about a 1.5 metre. He noted a calcaneal fracture with treatment with crutches and non-weightbearing. He noted the applicant was able to return to his usual work as a bricklayer but he had “significant pain ranging from 5/10 to 10/10 when he twists his foot and ankle”. He noted that “he finds by the end of the week that his pain is quite bad and spends the entire weekend resting in order to get his pain level back down to a reasonable state”. He noted medication, physiotherapy, strapping and gel pads as well as a trial of orthotics “but unfortunately things are getting worse”.
On examination, Dr Martin noted “mild virus and widening of the heel”. He also noted “he has a limp whilst walking and there is tenderness over the sinus tarsi and subtalar joint” and satisfactory range of motion in flexion “but he has lost a significant amount of inversion and eversion as expected”. He noted that the MRI demonstrated “a malunited calcaneal fracture with synovitis within the subtalar joint”. He recommended injection but thought “ultimately at some point however he is going to require a fusion with correction of his deformity but hopefully we can postpone this for as possible”.
In a report dated 18 May 2017, Dr Martin noted that the applicant had the injection without significant benefit and his pain remained unchanged. Dr Martin thought that the applicant was coming to the point where he was going to need a subtalar fusion with correction of the deformity.

Dr Walsh

Dr Walsh, orthopaedic surgeon, provided a number of treating reports.
In his treating report dated 13 April 2016, Dr Walsh noted that the applicant was working on scaffolding a week previously when he fell about 1.5 m and landed heavily on his right foot and sustained a comminuted fracture of the calcaneus. Dr Walsh noted that “this was not associated with any other injury to his right lower extremity or to his spine”. He noted on examination persistent swelling and bruising around the right foot and was managing well with the compression bandage and had good mobility of the ankle with restricted movement of the subtalar joint. He noted that the rest of the examination including neurovascular status, was completely normal. Dr Walsh considered that it was not necessary to internally fix the fracture, although it would be considered at a clinical meeting but the applicant was not keen on any open surgery and was managing well on crutches.
In his treating report dated 23 June 2016, Dr Walsh noted that “the recent x-ray confirms that the fracture is now healing satisfactorily, although the alignment is somewhat disturbed, as expected”. He also noted that the applicant had “regained full mobility of his ankle and has 50% of the range of movement of the subtalar joint”. He stated “as Robert’s pain is gradually settling, I think you can now return on a graduated return to work program and will see how he progresses with this”.

Dr Kuo

Dr Kuo, orthopaedic surgeon, provided a number of treating reports. As reports were with respect to right subtalar joint arthrodesis and recovery. The reports did not refer to right hip symptoms. In a treating letter to Dr Kong dated 14 November 2018, Dr Kuo noted that the applicant was three months post subtalar joint arthrodesis and he was progressing well. It was noted that he was “still getting some oedema bilaterally, but otherwise he has no pain”. The plan was stated to commence weight-bearing and “wean from the Cam walker” and review in two months.

Professor Owler

In his report of 20 April 2018, Prof Owler, neurosurgeon, noted the history of injury in April 2016 when the applicant fell from some scaffolding and landed on his right ankle. Prof Owler noted that the applicant “also injured his back and injured a number of other joints as well”. Prof Owler noted a history of significant left lower limb pain in an L5 distribution over the past 12 months although those pain symptoms had largely resolved. He recommended a conservative approach to treatment in relation to the back.

Dr Taylor

In a letter to Dr Gayagay dated 18 February 2020, Dr Taylor, pain management specialist, stated:
“Many thanks for reviewing Robert’s hip pain that he continues to experience after an injury at work in 2016. He fell from a height of about 1.5 m on a building site. He sustained a number of injuries, most significantly to his right heel and low back and has ongoing pain in those areas. Though he is making progress in other areas, his hip pain remains quite troubling to him. I have advised him to bring all relevant films and would like to use this letter to request approval from his insurer for your review.”

Dr Gayagay

Dr Gayagay, hip, knee, sports trauma surgeon, provided treating reports. In the initial treating report dated 25 February 2020, Dr Gayagay noted a history of a fall from a scaffold at work resulting in the applicant landing over his heels and eventually on his buttocks. He noted that the fall caused a right heel fracture which was attended to at that time and since then the applicant had been having problems with his spine, left knee “and now his right hip”. He noted that he was seeing the applicant on this occasion about the right hip problem. He noted that the pain in the right hip groin was worse with weight-bearing and relieved with rest. He noted that “gait pattern is antalgic… The right hip is irritable with loss of internal rotation… and external rotation… Whereas, the left hip is not irritable with a more mobile range of motion”. He noted that a CT scan showed evidence of degenerative changes involving, inter alia, the right hip.
He was of the opinion that the applicant suffers with degenerative changes over his right hip. He noted that this was confirmed with the bone scan and “his left hip is relatively spared”.
Dr Gayagay also stated “how this may be evident in Robert at his age is unclear, although there is a history of trauma to that side of his body”. He was of the opinion that the applicant would likely require a total hip replacement.
In his report of 24 March 2020, Dr Gayagay reviewed x-rays of the right hip and left knee. He was of the opinion that the right hip x-ray confirmed “a severely degenerative right hip. There is a complete loss of joint space, subchondral sclerosis and osteophytes”. He also reviewed the scans of the left knee with a finding of a severely degenerative left knee. Dr Gayagay stated that “I have informed Robert that the above respective joints are the cause of his pain. They are degenerative and are likely aggravated by his fall in 2016”. He was of the opinion that arthroplasty procedures for the right hip and left knee were the surgery of choice, “commencing with the most symptomatic joint which is his right hip”. He noted that the applicant was keen on a surgical procedure “as he has been in pain ever since his fall in 2016”.

Dr Bodel

Dr Bodel provided medicolegal reports to the applicant’s solicitors dated 2 September 2019, 22 October 2020 and 21 June 2021.
In his report dated 2 September 2019, Dr Bodel summarised the applicant’s injuries to include injury to both hips, the back, both knees and fracture of the right calcaneus. Dr Bodel noted a history that the applicant was standing about 1 m above ground level on scaffolding, and was collecting his tools after finishing bricklaying, when he inadvertently lent against a wooden prop which gave way and he fell into the building and onto the concrete slab. After assistance from a colleague into a chair he sat for about 10 to 15 minutes and realised he was sore all over. His wife took him to the Hawkesbury Hospital. Dr Bodel noted the history that the applicant was complaining of headache and an injury to the forehead, severe pain in the right foot and ankle, lower back pain and hip pain and also pain at the front of both knees. Dr Bodel noted that x-rays revealed that there was a fracture of the calcaneus on the right side and the applicant was put into a plaster back slab, observed several hours and then discharged home with crutches.
Dr Bodel noted also that the applicant was referred to Dr Walsh, orthopaedic surgeon, who discussed treatment options including the possibility of surgery. Dr Bodel noted in his history that the applicant remained in the cast and then a boot for about three months and then had physiotherapy for the back, hips, knees and the right foot and ankle. He also noted that in mid 2018 the applicant consulted Dr Kuo, orthopaedic foot and ankle surgeon, who performed a subtalar arthrodesis on 26 July 2018. Dr Bodel noted that the applicant was disappointed with the outcome of the surgery and felt that the operation was of no value.
Dr Bodel also noted that the applicant recently had an x-ray of the right hip as he “has groin pain on the right side” but the result of the x-ray was at that time unknown.
Dr Bodel noted current complaints including pain down the left leg, lower back pain, intermittent neck pain, right hip pain and groin pain, and pain and stiffness in the right heel. Dr Bodel noted that the applicant was due to be reviewed by his GP regarding the hip in the next few days for possible treatment options.
On examination, Dr Bodel noted that the applicant used a walking stick in the right-hand, and the applicant indicated he needed the stick for both the lower back, the left sided sciatica, the right hip pain and the right foot and ankle pain, for use when he is out of doors. Dr Bodel noted, inter alia, discomfort of flexion and rotation on the right side.
Dr Bodel noted that no x-rays or other tests were available at the time of the report. He noted x-ray reports of the right ankle and right foot concluding that there was a comminuted fracture of the calcaneus and an x-ray of the right-hand showed a fracture of the first metacarpal.
Notwithstanding the history recorded which included right hip pain, Dr Bodel in response to specific questions noted a history which did not include the right hip. Dr Bodel did not make a diagnosis in respect of the right hip. Dr Bodel provided an assessment of permanent impairment which did not include an assessment in respect of the right hip, although there was an assessment in respect of right lower extremity impairment.
In his report dated 22 October 2020, Dr Bodel summarised the injuries received in the accident of 5 April 2016 including injury to both hips, the right much worse than the left.
Dr Bodel recorded a history of injury on 5 April 2016 and noted that when the scaffolding “prop” gave way the applicant fell a distance of about a metre and landed very heavily on his right heel and also jarred his back, his knees and his hips. In the period of about 10 to 15 minutes after the accident, the applicant was sore all over, particularly in the region of the right foot and ankle.
Dr Bodel also noted a history that following the subtalar fusion on 26 July 2018, at the time of examination the applicant had been disappointed with the outcome as it had not really helped his foot and ankle function and “it has put an undue load on the lower part of the back and the right hip”.
Dr Bodel noted current complaints including pain and stiffness in the region of the right hip, pain and stiffness in the region of the right ankle and right subtalar joint, and “he walks with a limp on the right-hand side with his right foot externally rotated”.
On examination, Dr Bodel noted that the applicant “has a flat-footed gait pattern on the right-hand side and he walks with his foot externally rotated. He has a walking stick in the right-hand”. He noted that the applicant had a painful restriction of hip movement on the right-hand side.
Dr Bodel noted the opinion of Dr Machart dated 9 July 2020, including the description of pathology in the right hip as primary osteoarthritis and the x-ray of the right hip of 26 August 2018 which did show osteoarthritis. He noted Dr Machart’s view that there was no contemporaneous evidence of a right hip injury and right hip pain was reported several years later accompanied by severe degenerative changes and bilateral changes were evident.
Dr Bodel agreed that there is some change on the left hand side “but the main painful side is the right hip”. Dr Bodel noted the applicant’s presentation at both Dr Machart’s assessment and the current assessment with a walking stick.
Dr Bodel agreed with the recommendation of Dr Gayagay for the total hip replacement. He was of the view that the report of Dr Gayagay confirmed that the applicant had severe degenerative hip disease on the right-hand side.
Dr Bodel, in response to a question as to whether the applicant sustained a consequential right hip injury as a consequence of the accepted lumbar spine and right ankle injury, stated:
“Dr Machart makes his medical decision on the basis that there is no contemporaneous medical evidence to indicate an "injury" to the right hip at the time of the fall. I acknowledge that the main injury, which was the fracture of the calcaneus, was indeed in the region of the right foot and ankle and that is not unexpected.
This gentleman has had appropriate treatment for that which included initially conservative care in a cast and then a boot and he was non weight bearing for a period but once he began to weight bear, he was left with quite severe pain and stiffness. This put an undue strain on both the right knee, the right hip and the back which became symptomatic over time.
He has had a subtalar fusion more than two years ago now and that has not helped and he still has a grossly abnormal gait pattern.
In this circumstance, in my view, his abnormal gait pattern has put an undue load on his arthritic hip on the right hand side which was asymptomatic at the time of the injury.
He has therefore had an aggravation, acceleration, exacerbation and deterioration of a disease process in the region of the right hip and in particular there appears to have been an acceleration of the symptomatic pathology in the region of the right hip which is not as bad as the left hip and that has occurred because of the abnormal gait pattern on the right hand side.”
Dr Bodel was of the opinion that the need for the total hip replacement was therefore a result of the injury to the right foot and ankle and the aggravation of the underlying previously asymptomatic disease process, being the degenerative arthritic change in the region of the right hip. Dr Bodel was of the opinion that the surgery recommended by Dr Gayagay was reasonably necessary because the aggravation of the arthritic in the right hip caused by the abnormal gait pattern. Dr Bodel also agreed with Dr Machart that the diagnosis of the pathology in the right hip was primary osteoarthritis, although in Dr Bodel’s opinion the osteoarthritis was present in the left hip to a much lesser degree and the injury was the aggravation, acceleration, exacerbation and deterioration of the disease process of gradual onset and that has been caused by the abnormal gait pattern following the work injury.
Dr Bodel was of the opinion that work was the main contributing factor to that aggravation of the disease process.
In his supplementary report dated 21 June 2021, Dr Bodel commented on the insurer’s section 287A review notice in which mention was made of “a previous hernia in the area”. He stated “it is not uncommon for pain in the groin to be incorrectly diagnosed as a hernia only where there may well be an underlying arthritic hip as well. That is clearly the case here. The hip is arthritic and has now been replaced”.
In response to a question as to his opinion as to whether the applicant’s need to undergo surgery to the right hip was “causally related to the subject injury”, Dr Bodel stated:
“I again confirm that the right total hip replacement undertaken by Dr Randhawa is causally related to the injury that occurred on 05 April 2016. This causal link is because of the nature of the fall, the fracture of the calcaneus and the jarring injury all through the leg which has caused aggravation, acceleration, exacerbation and deterioration to the previously asymptomatic arthritic process in the region of the right hip. This is not an uncommon clinical scenario.”
In relation to the events on 10 January 2021, Dr Bodel was of the opinion that the pathology “was well-established in the region of the right hip prior to that event. That particular event just brought forward the timing of the inevitable total hip replacement which had arisen as a consequence of the original work injury”.
Dr Bodel noted a “further statement” from the applicant and a discharge summary from the Norwest Private Hospital. He also stated that “I continue to hold the view that the fall, which is the subject of this claim, has caused aggravation, acceleration, exacerbation and deterioration to the arthritic change in the hip which has led to the need for the total hip replacement”.
Dr Bodel stated:
“This gentleman’s right hip pathology is largely constitutional in the fact that he had a degenerative hip joint. He was asymptomatic until the episode of injury that occurred at work on 05 April 2016. He injured his lower back, both knees, right hip and right foot and ankle as a result of the event that occurred at work on 05 April 2016. The right hip became symptomatic at that time. It steadily deteriorated and then rapidly deteriorated after the episode on 10 January 2021.
I am satisfied that the injury at work has caused the aggravation, acceleration, exacerbation and deterioration of the degenerative disease process of the right hip joint which led to the need for the total hip replacement.”

Dr Machart

Dr Machart, orthopaedic surgeon, provided medicolegal reports to the workers compensation insurer and to the solicitors for the respondent dated 5 December 2019, 9 July 2020 and 19 August 2021.
In his report dated 5 December 2019, Dr Machart noted a history of injury on 5 April 2016 in which the applicant “was on scaffolding” and “he lent against a timber brace. The brace gave way. He fell down from scaffolding and landed on his heel. He experienced pain in the heel”. Dr Machart did not record a history of right hip injury or pain. He noted, amongst other documents, attached to the letter of instruction was a report of 5 April 2016, an x-ray of the pelvis and right hip. He noted “moderate osteoarthritis right hip”. He also noted the report of Dr Bodel dated 2 September 2019 in which the narrative of injury was “right foot, ankle, low back and hip pain and pain in the front of both knees”.
On examination, Dr Machart noted that the applicant walked slowly and displayed a mild limp. He noted findings in respect of the right heel and ankle and the lumbar spine. He did not note examination of the right hip.
In respect of diagnosis, Dr Machart was of the opinion that the applicant sustained a fracture of the right calcaneus and derangement of the subtalar joint. He also stated “he suffered axial injury to the skeleton, which uncommonly transmits to the lumbar spine”.
In his report dated 9 July 2020, Dr Machart recorded a history that the applicant “fell from scaffolding, landing on his right heel” and “fracture was diagnosed. Pain failed to settle. He used crutches” and came to fusion under Dr Yeo. He noted the operation did not help and the applicant continued to suffer pain in the right heel and he experienced “lower back pain and sciatica pain in the right leg”. I note at this point that this history is not in accordance with that taken by Prof Owler in April 2018 in which it was recorded that there was sciatic left leg pain. Dr Machart referred to various medical reports and documents that were attached to his letter of instruction, but did not refer in this report, unlike the previous report of Dr Machart, to the x-ray report of Dr Reeves dated 5 April 2016 in respect of the pelvis and right hip.
Dr Machart recorded a history that the applicant started to become aware of right hip pain about eight months prior to the examination of July 2020. He noted that “there is no specific injury. The pain started gradually and increased in severity”. He noted current symptoms of pain in the outer aspect and in the groin in relation to the right hip and pain was evident when walking and walking tolerance was limited to 100 m by hip pain, back pain and heel pain and the right hip pain was gradually increasing in severity making it difficult to turn or twist.
Dr Machart reviewed various medical reports, including the report of Dr Bodel of 2 September 2019 and the report of Dr Gayagay dated 25 February 2020 in which it was noted that “assessed the right hip as osteoarthritis” and a hip replacement was suggested.
Dr Machart also noted GP records of “active past history listed bilateral hip osteoarthritis on 16 February 2018”. He commented that he “did not find reference to the right hip in the GP records until 16 February 2018, in the form of right hip MRI, which demonstrated bilateral osteoarthritis without history of symptoms or injury”.
Dr Machart commented on the medical documentation that “contemporaneous evidence of right hip injury was not at hand. Right hip pain was reported several years later, and was accompanied by severe degenerative changes. Bilateral changes were evident”. Dr Machart also stated:
“I do not have before me evidence that the right hip is related to anything other than osteoarthritis is evident on clinical examination, history and x-rays. To suggest that there was relationship between the pathology in the right hip and the injury in 2016 is a hypothetical, not supported by medical evidence.”
On examination, Dr Machart noted the applicant walked slowly and limped and used a walking stick. He noted in respect of the right hip “0.5 cm leg length discrepancy, right shorter”. Tenderness of the greater trochanter, restricted flexion limited by pain, virtually no internal rotation with external rotation 30°. He noted the left hip had moderately diminished movement on account of pain. He noted an x-ray of 18 March 2020 of the pelvis and right hip with “bone on bone osteoarthritis right hip” and “mild to moderate left hip”.
In respect of diagnosis, Dr Machart stated:
“question raised was whether the injury in 2016 caused trauma to the right hip that could be responsible for the osteoarthritis or aggravation of osteoarthritis. Axial force can cause damage to the knee, hip or spine, the latter common, hip or knee less so. If there was a substantial injury to the right hip that would altered the natural course of osteoarthritis, then I would have expected symptoms at all soon after injury. Contemporaneous evidence of such symptoms was not at hand. I do not have before me evidence that supports the claim for right hip osteoarthritis is caused or aggravated by the injury.”
Dr Machart diagnosed primary osteoarthritis in respect of the right hip condition. He stated that there was no evidence in the contemporaneous records to support that the applicant sustained a right hip injury on 5 April 2016. In response to the question whether the injury of 5 April 2016 was a substantial contributing factor to the condition or main contributing factor to an aggravation, acceleration, deterioration of a pre-existing right hip condition, Dr Machart stated “I did not find such evidence”. He was of the opinion that a right hip arthroplasty was “indicated but not as a result of the injury on 5 April 2016”.
In his report dated 19 August 2021, Dr Machart noted among the documents reviewed his own previous reports and the x-ray report of Dr Reeves dated 5 April 2016 of the pelvis and right hip.
Dr Machart noted his previous reports and his previously recorded history of a fall from scaffolding, “his description today 1.3 m”. Dr Machart stated “back then he told me that he experienced pain in the heel” and was taken to Hawkesbury Hospital and a fracture of the right heel was diagnosed. Dr Machart recorded that the history today was a recollection that at the time of the incident on 5 April 2016 the applicant injured his right ankle, lower back and right hip. Dr Machart noted the use of crutches for three months after the injury and also a right hip replacement six months prior to the current report. On examination, Dr Machart noted similar limitations in movement in both hips, with the left more painful.
Dr Machart diagnosed an “axial injury to the skeleton, causing soft tissue injury to the lumbar spine”. He also noted that since his last assessment several symptoms had been added, including in relation to the right hip and also the left hip. However, he noted that at the time of his previous assessment and report of 9 July 2020, there was a history of pain in the right hip, with pain starting eight months before that assessment, at the end of 2019. He noted that the pain in the right hip started slowly and gradually. He noted that the GP records recorded the first date of hip pain on 16 February 2018 and he did not find contemporaneous evidence of right hip injury at the time of the injury on 5 April 2016.
In relation to Dr Bodel’s opinion and report of 22 October 2020, Dr Machart commented that he was not of the opinion that there was abnormal stress on the right hip as there was less weight bearing on the right ankle and therefore less mechanical pressure on the right knee and right hip and he was not in agreement that the pathology in the right ankle caused or aggravated pathology in the right hip.
Dr Machart was of the opinion that diagnosis had not changed since his previous assessments. In relation to the right hip, Dr Machart stated:
“He was treated by right hip replacement. There was not a lot of evidence that there was substantial right hip injury. I noted on today's assessment that he was subjected to right hip x-rays. Given this as the only contemporaneous evidence, I did not see the injury as substantial enough to alter the natural history of osteoarthritis in both hips, which had increased looking at the x-ray assessment. I did not see evidence of injury affecting areas other than the lumbar spine and the right heel. If there was substantial injury to the right hip, then I would have expected that to be documented in the hospital file, by his treating doctor, Dr Walsh and by the GP soon after the injury. That not being the case is suggestive of minor or no injury to the right hip, not sufficiently severe to cause alteration of natural history of OA that led to the hip replacement.”
He was also of the opinion that osteoarthritis was radiologically evident at the time of the injury and that gradual deterioration led to the right hip replacement “in line with the prognosis for osteoarthritis”.
Dr Machart also commented that the fact there was an x-ray on 5 April 2016 “suggested there were symptoms at the time when the x-ray was conducted” and “there was no other supporting evidence”. He was of the opinion that “it appears that any injury that may have been evident on 05/04/2016 had healed and was not sufficiently severe to cause alteration of expected progression of osteoarthritis”.

In response to a question as to whether the applicant developed a right hip condition consequential on the right ankle injury or due to altered gait caused by the right ankle injury, Dr Machart stated “this does not withstand medical scrutiny. Such argument cannot be used on the ipsilateral side. The right ankle injury caused less weight transfer on the same limb”.
Dr Machart was asked for his comment in relation to an incident on 10 January 2021. He stated that he had been given no history of a fall on that date and “I did not see reasoning why this was consequential upon the incident on 05/04/2016”. In relation to the right hip replacement surgery, Dr Machart was of the opinion that “I did not see sufficiently significant medical evidence” to conclude that the injury of 5 April 2016 materially contributed to the need for the surgery. He was of the opinion that some other factor materially contributed to the need for surgery, that is “osteoarthritis, a constitutional condition, increased in severity, as expected”. In relation to the incident in January 2021, variously referred to by Dr Machart as 12 January, 10 January and 2 January, he stated “I doubt that the injury on 12/01/2021 caused much difference to the clinical progress and that he would have needed an operation soon after”. Dr Machart also commented that he “did not see sufficient contemporaneous evidence of substantial right hip injury. There remain the issue x-rays taken of the right hip when he was in Hawkesbury Hospital”. He noted limitations in the records of the GP and orthopaedic surgeon that were provided to him and stated “on the balance of probabilities,
I would have to conclude that there was not sufficient injury to the right hip to cause alteration of the clinical progression of osteoarthritis. The need to hip replacement was not related to the incident”.

FINDINGS AND REASONS

The respondent submitted that the difficulty for the applicant is that its case must be supported by the expert evidence and in turn the expert evidence must be supported by the lay evidence. The respondent referred to the decision of Ly v Jitt Offset Pty Ltd[1] (Ly) and submitted that the common sense matters that the Commission must evaluate in this matter cannot relate to things which must be evaluated by an expert.
[1] 2021 NSW PICPD 2 at [83]
The facts and fact-finding process in Ly had raised the issue on appeal that the member had rejected the expert medical opinion of Dr Giblin on a common sense evaluation of a proposition put by Dr Giblin and hence the causal connection was not established. In Ly it was the member’s own view that the balance of the lumbar spine could be altered without use or movement of the lower back, and that tension of lumbar muscles on their own can cause symptomatic aggravation of age-related changes in the neck. The decision in Ly noted the cautionary remarks in Strinic v Singh[2], that familiarity with medical terminology and medical conditions never makes the judge the expert in the case. The Deputy President agreed with the appellant’s submission that the common sense evaluation referred to in Kooragang Cement Pty Ltd v Bates[3] (Kooragang) is about the lay inference is that can be drawn from the facts, not the inferences that can be drawn which require expertise.
[2] [2009] NSWCA 15 at [59]
[3] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796
The decision in Ly, in my view, was an acceptance of the appellant’s submission in the circumstances of that matter and a confirmation that the causation fact finding exercise should be based upon an acceptable standard of evidence. As was observed by McHugh J in Henville v Walker[4]:
“The corollary of the "common sense" approach to causation, as Mahoney JA pointed out in Barnes, is that it is not reducible to a "test" that can be applied across the spectrum of factual situations that arise from case to case. Nevertheless, the course of judicial reasoning in this area has produced certain principles that assist tribunals of fact in deciding causation issues.”
[4] [2001] HCA 52; 206 CLR 459; 182 ALR 37; 75 ALJR 1410 at [105]
The argument put by the respondent was that the opinion of Dr Bodel should be rejected and that, once rejected, there is no expert evidence that would satisfy the onus on the applicant, and therefore a common sense inference of causation that relies on medical expertise cannot be drawn from any facts that may be established in the absence of expert opinion to that effect.
The discharge summary of the Hawkesbury Private Hospital Emergency Department dated 5 April 2016, that is the day of the injury, referred to an x-ray and CT of the right foot but made no reference to an x-ray of the pelvis and right hip. The report of Dr Reeves dated 5 April 2016 of an x-ray of the pelvis and right hip was also attached to the ARD. That x-ray report was addressed to Dr Ramesh of the Emergency Department. Dr Reeves also addressed reports dated 5 April 2016 to Dr Ramesh of the Emergency Department in respect of a CT scan of the right calcaneus and x-rays of the right ankle and foot and right hand.
The applicant in his statement said that in the accident he fell forward about 1 m, landed very heavily on concrete and “jarred” body parts which included both his hips. He stated that he felt “immense pain”, particularly in the right ankle and foot.
The respondent submitted that the discharge summary of 5 April 2016 made no mention about the right hip. It was submitted that the x-ray report dated 5 April 2016 of the pelvis and right hip was a report that was designed to pick up all possibilities and as such it was an exclusionary report and not a revelatory report. It was submitted that it was not a report that suggested that the applicant had pain to each and every one of the areas that were scanned. It was submitted that the clinical history was one which did not mention about there being pain in the right hip.
It was submitted by the respondent that there was no contemporaneous corroborative evidence of pain in the right hip in respect of the injury on 5 April 2016, and the applicant’s statement was unhelpful and insufficient to be accepted as establishing the factual basis for injury to the right hip on 5 April 2016. Therefore, it was submitted, a common sense approach to causation would not permit drawing an inference of injury to the right hip as that is a matter of expert opinion based upon proven lay evidence.
The applicant submitted that in respect of the x-ray of 5 April 2016 of the pelvis and right hip, that there would not have been an investigation if there had been no complaint regarding that body part. It was submitted that there was a post-traumatic development of osteoarthritis which resulted in increase in symptoms and the treating notes explain how those symptoms came to a head. It was submitted that the respondent avoided any acknowledgement between the significant osteoarthritis in the right hip and the relatively insignificant arthritis in the left hip, a clear distinction which is explained by the traumatic incident on the right side of his body on 5 April 2016.
I do not accept the respondent’s submissions in this regard. In my view, the applicant sustained symptoms of pain in his right hip in the fall of 5 April 2016. The applicant in his statement said that, among other parts of his body, he jarred his hips and he felt immense pain, “particularly in the right foot and ankle area”. Dr Bodel in his 2019 report noted the history that the applicant was “sore all over” on 5 April 2016 immediately after the fall and that at the Hawkesbury District Hospital the applicant complained of hip pain, among other parts of the body. When considered with the history recorded by Dr Bodel, I accept that the applicant jarred his hips in the fall of 5 April 2016, including the right hip, and complained of hip pain to the Hawkesbury District Hospital. Dr Machart in his 2021 report acknowledged that the fact that there was an x-ray on 5 April 2016 suggested that there were symptoms in the right hip at the time when the x-ray was conducted and there probably was an injury to the right hip. Although his statement was somewhat vague, I accept that the immense pain that the applicant felt included his right hip following the jarring to both his hips in the fall.
In my view, the discharge summary of 5 April 2016 referred to above was no more than what it purported to be, that is a summary. It was not a complete record of the applicant’s attendance and treatment at the hospital, as it clearly did not refer to the x-ray of the pelvis and the right hip. It follows, in my view, that the absence of reference to right hip pain in the discharge summary is not evidence that no complaint of right hip pain was made. The respondent submitted that it is unsound to infer that a complaint of right hip pain was made by the applicant on the basis of the existence of the report of the x-ray of the pelvis and the right hip, that is having a scan does not mean that there were symptoms. However,
Dr Machart in my view accepted that inference, that is the scan was likely to have followed the complaint of symptoms in the right hip.
The respondent also argued that the reports of Dr Walsh took a history which specifically did not note a complaint about the right hip. The respondent submitted that the report of
Dr Walsh of 13 April 2016 specifically noted that the fall was not associated with any other injury to the right lower extremity or to the spine. However, in my view this was a brief treating report in summary form which did not purport to be a detailed analysis of symptoms and instead referred to there being no association with any other injury to the right lower extremity or spine. In my view this comment was also not clear as to whether the reference was being made to prior injury, rather than to other body parts at the time of the injury and indeed no reference was made specifically the question of whether there was associated injury to the right hip in that report.
It was also submitted that similarly, the reports of Ms Miller, physiotherapist, Dr Martin and
[5] [2009] NSWCA 227
Dr Kuo did not record history of injury to the right hip or right hip symptoms. However, I am not persuaded that weight should be placed upon absence of reference to right hip injury or right hip symptoms. In my view, these reports were provided in respect to treatment of the right calcaneal fracture, which was a source of continuing significant difficulties for the applicant. For the reasons given below, with respect to the cautionary matters outlined in Mason v Demasi[5] (Mason), I do not place weight on these reports in this regard.
I find that the applicant sustained symptoms of pain in his right hip immediately following the fall on 5 April 2016.
In my view, the right hip x-ray of 5 April 2016 and the acceptance of symptoms and injury to the right hip on 5 April 2016 by Dr Machart, and also Dr Bodel, provides support for the applicant’s submission that he sustained pain in his right hip as a result of the fall on 5 April 2016. The respondent conceded that the fall on 5 April 2016 was significant. However, the contemporaneous records of the Hawkesbury Private Hospital and of the applicant’s treating GP in my view indicate that the fall was more significant than the history provided by the applicant at a later stage to Dr Bodel and Dr Machart. The contemporaneous records indicate that the fall was about 1.5 m, whereas Dr Bodel and Dr Machart initially noted that it was about 1 m. In a subsequent report, Dr Machart noted that the applicant was now stating that the fall was about 1.3 m. I do not accept the respondent’s submission that the applicant was mistaken in his statement in relation to the symptoms of pain in his right hip that he sustained on 5 April 2016. The respondent referred to authorities such as Onassis and Calogeropoulos v Vergottis[6] (credibility and contemporary documents), Watson v Foxman[7] (fallibility of memory with passage of time), and Fox v Percy[8], in suggesting that contemporaneous documents are usually a better source of reliable evidence than someone’s memory taken many years after the event. In my view, the contemporaneous document of 5 April 2016, that is the x-ray report of the pelvis and right hip, when considered with the nature of the discharge summary of the same day, and the acceptance by
[6] [1968] 2 Lloyd's Rep 403, Lord Pearce at 431 (Onassis)
[7] (1995) 49 NSWLR 315 at 319 McLelland CJ in Eq (Watson)
[8] [2003] HCA 22
Dr Machart that the x-ray of the pelvis and right hip likely followed complaint of right hip pain, support the applicant’s statement that he sustained right hip pain and injury to his right hip on 5 April 2016.
In my view, the symptoms of pain that the applicant sustained were a significant indicator that he did sustain injury to his right hip on 5 April 2016. However, the respondent also submitted that the applicant was not asymptomatic prior to the incident of 5 April 2016, and also that there was a significant period following the incident on 5 April 2016 until 2018 in which there was no record of symptoms of the right hip, and therefore there was no injury on 5 April 2016 nor any deterioration in symptoms in that period.
In support of its argument that the applicant was not asymptomatic prior to 5 April 2016, the respondent relied upon a clinical entry in 2002, and another in 2014, as well as the opinion of Dr Bodel. I do not accept this submission. In respect of the clinical note of 8 October 2002, as noted above, I note that although the history was of a slip and fall and landing on the right hip and back, the complaint was pain in the left side of the back and the diagnosis was back pain. There was no suggestion at that time, in my view, of an injury to the right hip or symptoms in the right hip and I was not taken to, nor could I ascertain, any subsequent entry by the GP in relation to symptoms arising from that incident. In respect of the clinical notes of 21 January 2014 and 4 February 2014, the former entry noted a persisting ache in the right groin but on examination also noted a small bulge when standing and a cough impulse. The latter entry was unequivocal in that the opinion of the GP was that the ultrasound confirmed direct inguinal hernia. A later clinical note of 15 October 2014, also noted above, noted the right inguinal hernia repair three weeks previously and “abdominal pain – right iliac fossa” and concluded that it was common pain and it takes a full six weeks for complete healing.
In my view, there was no medical evidence at that time to suggest that this was relevantly hip pain as suggested by the respondent. I was not taken to, nor could I ascertain, any clinical entries prior to January 2014 or after October 2014 until 5 April 2016, in which there was complaint of right hip pain. Dr Bodel’s comment in his 2021 report, in which he said that it was not uncommon for pain in the groin to be incorrectly diagnosed as a hernia only where there may well be an underlying arthritic hip as well and that was clearly the case here and the hip is arthritic, was made in response to the observation in the section 287A review notice that his previous reports did not mention the right in vinyl hernia sustained on 15 January 2014 for which the applicant underwent laparoscopic repair surgery by Dr Hughes, surgeon. I note that I was not taken to any medical opinion or evidence in respect of the repair surgery by Dr Hughes. Dr Bodel did not indicate that he had seen medical evidence or opinion in relation to the 2014 repair surgery, nor in relation to the clinical notes of 2014 referred to above. In these circumstances, I do not place any weight on the comment of
Dr Bodel in this regard.
In relation to the period after 5 April 2016, the applicant stated that he continued to have symptoms in his right hip. The respondent submitted that the applicant was mistaken in his recollection and the clinical records showed that there was no complaint of right hip symptoms until 2018. The respondent sought to distinguish the decision in Mason on the basis that the applicant was not recorded as referring to his right hip condition in the relevant period, whereas in Mason the appellant was recorded as making certain complaints inconsistent with her own evidence and other documentation and notes. I do not accept this submission. In my view, the reasoning in Mason, particularly that of Basten JA, extends to this matter, as a complaint or complaints not recorded in clinical notes is nonetheless an argument about consistency and the weight to be given to the applicant’s evidence.
In my view, the applicant was not mistaken in relation to symptoms in his right hip following the fall on 5 April 2016. I have found that the applicant did sustain pain in his right hip on 5 April 2016 following the fall. In my view there was no evidence before me of right hip pain prior to 5 April 2016. The applicant sustained a significant fall of at least 1 m on 5 April 2016. The respondent submitted that the clinical consultation note made by the GP on 7 April 2016 was detailed and made no reference to the right hip, which was indicative that there were no right hip symptoms and the applicant was mistaken in his recollection. I do not accept this submission, as in my view the clinical note focused on the incident of 5 April 2016 with reference to the significant frank injury at that time, that is the comminuted fracture of the right calcaneus. Although somewhat detailed in respect of the comminuted fracture, I do not accept that the relevant clinical note was more than a summary for treatment purposes.
Dr Bodel described the comminuted fracture of the right calcaneus as the main injury at the time and that it was not unexpected that Dr Machart had recorded there was not contemporaneous medical evidence to indicate injury to the right hip at the time of the fall.
The applicant underwent significant treatment and continuing significant difficulties in respect of his right ankle and foot arising from that fall. I also note that when the clinical notes (as distinct from the medical certificate and referral letter discussed in the next paragraph) did record right hip symptoms in 2018, it was with reference to a worsening of pain in the right hip in the preceding months following the applicant’s difficulties with his right ankle and foot. In my view, this history is not inconsistent with the applicant’s statement that he experienced symptoms in his right hip from the time of the fall on 5 April 2016. In my view, the clinical notes until 2018 recorded the treatment of an obvious frank injury to the right ankle and foot and I adopt a cautious view of the notes having regard to the circumstances of busy medical practices[9]. I do not place weight on the absence of a reference to the right hip in the clinical notes and treatment reports until 2018, having regard to the treating documents being summaries of the treating medical practitioners for the purpose of treatment at the time of each record or report; that each record was not a verbatim recording nor a record of the questions and answers; and that their purpose was for current treatment needs rather than a forensic legal purpose[10]. I have also had regard to the caution to be given as to the possibility of the fallibility of human memory over time[11], and the importance of contemporary documents and admitted facts and probabilities with reference to an honestly mistaken witness[12]. As noted above, in my view the applicant was not mistaken as to right hip symptoms commencing after the fall of 5 April 2016.
[9] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
[10] Mason at [2]
[11] Watson
[12] Onassis
In my view, the medical certificate and referral letter of Dr Kong, both dated 16 February 2018, provide support for injury to the right hip on 5 April 2016 and also subsequent aggravation of the right hip due to altered gait. The medical certificate stated that the diagnosis of the work-related injury included bilateral hip pain aggravated from the injury of 5 April 2016, and that the injury or disease was related to the fall at work on 5 April 2016. In my view, although it is not entirely clearly expressed, the referral letter related the right hip pain to the injury of 5 April 2016 and also to the subsequent altered gait. These documents were dated on the same day as the case conference organised by the rehabilitation provider.

In relation to the reports of Dr Machart, I have noted that in his 2021 report he accepted that there were right hip symptoms on 5 April 2016 at the time of the x-ray that was conducted after the fall. Dr Machart also appeared to accept in his 2021 report that there was injury to the right hip on 5 April 2016, although in his view it was mild and had resolved, apparently by 2017. He was of the view that on the balance of probabilities the injury to the right hip was “not sufficient” to “cause alteration of the clinical progression of the osteoarthritis”. At other points in the 2021 report, Dr Machart also expressed the view that “any injury that may have been evident” on 5 April 2016 “had healed” and was “not sufficiently severe” or not “substantial enough” to cause alteration of the expected progression of osteoarthritis. In my view, Dr Machart did not explain how or why it was that in circumstances where the history that he recorded was of asymptomatic osteoarthritis prior to the incident of 5 April 2016, that injury to the right hip had healed and was not sufficient or substantial enough to cause alteration of the applicant’s underlying osteoarthritis. Dr Machart relied upon a lack of contemporaneous treating documents to suggest that the injury on 5 April 2016 was not substantial in this regard.
However, in my view the applicant was not mistaken in his evidence, including in the history recorded in the reports of Dr Bodel, that he sustained injury and pain to his right hip on 5 April 2016 and pain thereafter. The applicant’s evidence included the referral letter of
Dr Kong dated 16 February 2018 which in my view established that the applicant had right hip pain since the injury in April 2016, with complaints of increased hip pain due to limping. The history recorded in Dr Machart’s 2021 report noted the history of symptoms of pain in the right hip on 5 April 2016 with reference to the right hip x-ray of the same day, and also referred back to the history of right hip pain taken in his 2020 report, in which he recorded that pain in the right hip commenced at about the end of 2019. Dr Machart noted the first record of hip pain in GP records dated 16 February 2018 but there is no reference to the medical certificate or referral letter of Dr Kong dated 16 February 2018 in which a history and opinion was provided.
Indeed, in his 2020 report Dr Machart stated that if there had been substantial injury to the right hip that would have altered the natural course of osteoarthritis then he would have expected symptoms at all soon after the injury. In his 2021 report he accepted that there were right hip symptoms on the day of the accident on 5 April 2016 but in my view he did not satisfactorily explain or reconcile his 2020 opinion that he would have expected symptoms at or soon after the injury. The premise in his 2020 report was that a substantial injury to the right hip would be indicated by symptoms at or soon after the injury of 5 April 2016, while in his 2021 report he accepted that there were symptoms in the right hip on the day of the fall on 5 April 2016, but it was his view that the injury was not substantial. He referred to a lack of evidence of “structural injury” which contributed to the deterioration but did not explain how this aspect could be reconciled with his previous view that a substantial injury to the right hip would be indicated by symptoms on the day of the injury. I do not accept the opinion of
Dr Machart that the injury to the applicant’s right hip on 5 April 2016 had healed or that it had not altered the natural history of the course of osteoarthritis.
Dr Machart was also of the opinion that there was not abnormal stress on the right hip and there was less weight bearing on the right ankle and therefore less mechanical pressure on the right hip. He was of the opinion that the right ankle pathology did not cause or aggravate pathology in the right hip. Dr Machart was of the opinion that a right hip condition consequential to the right ankle injury due to altered gait “could not be used on the ipsilateral side”. He was of the view that the right ankle injury caused less weight transfer on the same women. However, it was the applicant’s evidence, supported in the history recorded in the referral letter by Dr Kwong dated 16 February 2018, that his limping and altered gait as a result of the right ankle injury did place weight and strain on his right hip. In my view,
Dr Machart did not take a history which supported his contention. Dr Machart did not take any history at all in relation to altered gait and weight-bearing, and instead referred to the history recorded by Dr Bodel. I do not accept the opinion of Dr Machart in this regard.
In relation to the reports of Dr Bodel, the respondent submitted that in the 2019 report there was no diagnosis of a frank injury to the right hip on 5 April 2016 because there was no frank injury to the right hip on 5 April 2016. For the reasons given above, in my view the applicant did sustain injury to his right hip on 5 April 2016.
The respondent also submitted that Dr Bodel relied on an incorrect history that the applicant’s right hip was asymptomatic prior to the subject fall. As discussed above, I do not accept this submission on the basis that I have not accepted that the instances referred to in the clinical records were evidence of right hip symptoms.
The respondent also submitted that any injury to the right hip on 5 April 2016 was insignificant, and it was so insignificant that he the applicant did not tell anyone about it, including the hospital staff and his GP initially and not until 2018. I do not accept this submission. As discussed above, I have found that the applicant did sustain injury to his right hip on 5 April 2016, being an aggravation of the pre-existing arthritic condition. In my view that injury was not insignificant. Dr Machart regarded the injury as not substantial or significant enough to alter the course of the pre-existing osteoarthritis, but in my view he did not regard the injury as insignificant. In my Dr Bodel regarded the injury as significant on the basis of the history that he recorded, which I have accepted.
The respondent also submitted that in respect of the opinion of Dr Bodel it should not be accepted that the applicant had any issues with the right hip given the gap between the fall on 5 April 2016 and 2018, and that when issues first arose in February 2018 there was no mention of altered gait and hence no medical basis for a consequential condition. I do not accept this submission. As discussed above, in my view there was a significant injury to the applicant’s right hip on 5 April 2016, which was the basis for Dr Bodel’s opinion in his supplementary report of 2021. His view in that report was that the need for the right hip replacement was causally related due to the nature of the fall and jarring injury all through the leg. Dr Bodel’s view that this was not an uncommon clinical scenario supports a common sense view of the chain of causation.
The respondent also submitted that the Dr Bodel should not be accepted on the basis that he changed his opinion, in summary, from support for a consequential condition arising from altered gait arising from injury to the right ankle on 5 April 2016 in his 2020 report, to support for injury to the right hip on 5 April 2016 in his 2021 supplementary report. I do not accept this submission. In my view, the opinion of Dr Bodel should be considered having regard to all his reports. When his opinion is considered as a whole, in my view there is no inconsistency. In my view, Dr Bodel’s opinion is support for both frank injury to the right hip on 5 April 2016 and a consequential right hip condition due to altered gait as a result of injury to the right ankle on 5 April 2016.
These are not mutually exclusive conclusions. Dr Bodel in his 2020 report was asked to comment on the opinion of Dr Machart and to provide his opinion as to whether the applicant sustained a consequential right hip condition. Dr Bodel acknowledged, in the context of
Dr Machart’s view that there was no contemporaneous medical evidence to indicate injury to the right hip, that not unexpectedly the main injury on 5 April 2016 was the fracture of the calcaneus. Dr Bodel was of the opinion that the applicant had sustained an aggravation of a disease process of the right hip. He was of the opinion that in particular there had been an acceleration of the symptomatic pathology in the right hip which was not as bad as the left hip. Dr Bodel was of the opinion that this acceleration occurred following the abnormal gait pattern on the right hand side. That abnormal gait pattern was commented upon in the referral letter of Dr Kong dated 16 February 2018. In my view, this acceleration is evident in the increasing symptoms in the right hip that were recorded in the clinical notes from February 2018 and the referral letter of Dr Kong dated 16 February 2018.
It is also evident from expert commentary on relevant imaging investigations. The x-ray report of Dr Reeves dated 5 April 2016 concluded there was mild to moderate osteoarthritic change in the right hip. By 14 February 2018 the MRI report of Dr Lam commented that there was evidence of moderate to high-grade osteoarthritis of the right hip. On 24 March 2020 in his report Dr Gayagay observed that a right hip x-ray confirmed a severely degenerate right hip, with complete loss of joint space, subchondral sclerosis and osteophytes. Dr Machart commented that in respect of the x-ray of 18 March 2020 there was bone-on-bone osteoarthritis of the right hip, and mild to moderate osteoarthritis of the left hip. In my view, this was a fair climate for Dr Bodel’s opinion that there was an acceleration as described above. This change in the radiology, as noted above, also supports Dr Bodel’s opinion that the applicant sustained injury to his right hip on 5 April 2016 causing aggravation, acceleration, exacerbation and deterioration of the underlying previously asymptomatic degenerative arthritic change in the right hip. Also supportive of Dr Bodel’s view in this regard was the opinion of Dr Gayagay that the fall in 2016 likely aggravated the applicant’s right hip condition.
Dr Bodel in his 2021 supplementary report was asked to consider the section 287A review notice and the report of Dr Rhandhawa dated 12 January 2021 and to provide his opinion as to whether the applicant’s need to undergo surgery to the right hip was causally related to the injury of 5 April 2016. In my view, the questions asked of Dr Bodel in the 2020 and 2021 reports, as noted above, were distinct and his responses in my view were not mutually exclusive opinions. In my view, in his 2021 report Dr Bodel made it clear that he continued to hold the view that the fall of 5 April 2016 caused an aggravation, exacerbation and deterioration of the arthritic change in the right hip which led to the need for the total hip replacement. Further, as noted above, the opinion in his 2021 report was consistent with the view that Dr Bodel expressed in his 2020 report that there had been an aggravation of the disease process of the right hip, such opinion being expressed in the context of the comment on Dr Machart’s view that there was no contemporaneous medical evidence of an injury to the right hip on 5 April 2016.
In his 2019 report, Dr Bodel recorded the history that after about 10 to 15 minutes after the fall the applicant was sore all over and he was taken to the hospital and was complaining of symptoms including severe right foot and ankle pain and also hip pain. Dr Bodel also noted a recent x-ray of the right hip as there was groin pain on the right side. Dr Bodel also noted current complaints including right hip and groin pain. In my view, this history is not inconsistent with a history of injury to the right hip on 5 April 2016, which I have accepted for the reasons given above. Further, in my view Dr Bodel in his 2020 report recorded a history of the fall in which the applicant landed very heavily on his right heel and also jarred his back, his knees and his hips. Dr Bodel recorded that the applicant within a period of about 10 to 15 minutes was in a lot of trouble and he was sore all over, particularly in the region of the right foot and ankle. He further recorded a history that the fusion surgery on 26 July 2018 had not helped the foot and ankle function and it had put an undue load on the lower part of the back and the right hip. In my view, the history recorded by Dr Bodel supported both conclusions summarised in the previous paragraphs.
In relation to the incident of 10 January 2021, the applicant stated that he felt excruciating pain in his right hip, which “seized up”, and he collapsed to the ground. Dr Machart noted that he had not been given a history of fall on 10 January 2021 and he did not “see reasoning why this was consequential upon the incident on” 5 April 2016. Dr Machart did not express an opinion as to whether any part or all of the applicant’s right hip condition resulted from an incident on 10 January 2021. Dr Bodel was of the opinion the incident on 10 January 2021 brought forward the timing of the inevitable total hip replacement which had arisen as a consequence of the injury of 5 April 2016. This view is consistent with the history recorded in the clinical notes of steadily worsening pain in the right hip, particularly in 2020, as well as the reports of Dr Gayagay as noted above. In my view, the medical opinions of Dr Machart and Dr Bodel do not suggest that applicant’s right hip condition was the result of an incident on 10 January 2021.
In my view, the chain of causation was not broken by an incident on 10 January 2021. As was observed by Kirby J in Roads and Traffic Authority v Royal[13]:
“…in cases where causation-in-fact may appear to be established on the foregoing bases, it may sometimes be the case that legal liability will nevertheless be denied because the decision-maker comes to a conclusion that an occurrence has intruded which is effectively "the" cause of the damage, to the exclusion of other putative causes. This is sometimes described in terms of the occurrence of a novus actus interveniens. In Henville[14], McHugh J also said:
‘In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional’.”
[13] [2008] HCA 19 at [87]
[14] Henville v Walker [2001] HCA 52; 206 CLR 459; 182 ALR 37; 75 ALJR 1410 at [106]
This, in my view, was not such an exceptional case.
I accept and prefer the opinion of Dr Bodel. Adopting a commonsense view of the chain of causation[15], I find that the applicant sustained injury to his right hip pursuant to section 4(a) of the Workers Compensation Act 1987 on 5 April 2016, causing aggravation, acceleration, exacerbation and deterioration of the arthritic change in the right hip; and also that the applicant suffered aggravation, acceleration, exacerbation and deterioration of the degenerative arthritic change in the right hip due to altered gait, such right hip condition being consequential to the right ankle injury of 5 April 2016.
[15] Kooragang
Dr Bodel was of the opinion the injury of 5 April 2016 is the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the arthritic change in the right hip. I have accepted and preferred the opinion of Dr Bodel for the reasons given above. I find that the applicant’s employment was a substantial contributing factor to the injury of 5 April 2016 and the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of that disease process. Dr Bodel was of the opinion that the injury at work caused the aggravation of the degenerative disease process of the right hip joint which led to the need for the total hip replacement. In my view, this opinion supports my finding that the right total hip replacement was as a result of the injury to the applicant’s right hip on 5 April 2016.
Dr Bodel was also of the opinion that that the need for the right total hip replacement arose as a result of the injury to the right foot and ankle and he agreed that it was reasonably necessary because of the aggravation of the arthritic change in the right hip which was caused by the applicant’s abnormal gait pattern. The discussion of “multiple causes” and material contribution was discussed in the decision of Murphy v Allity Management Services Pty Ltd[16]. Those principles are apposite in the circumstances of this matter, with reference to the issues discussed above. I find that the injury to the applicant’s right ankle and foot on 5 April 2016 materially contributed to the need for the right total hip replacement surgery. I do not accept the respondent’s submissions in this regard. I have accepted the opinion of Dr Bodel based upon the records and documents which I have also accepted above. This in my view supports a commonsense view of the chain of causation and the material contribution finding that I have made. In my view, the right total hip replacement was as a result of the injury to the applicant’s right ankle and foot on 5 April 2016.
[16] [2015] NSWWCCPD 49
The respondent conceded in submissions that it did not dispute that the treatment, that is the right total hip replacement, was reasonably necessary.

[2022] NSWPIC 30

24 January 2022