Powell v DenCorp Lifts Pty Ltd
[2021] NSWPIC 506
•08 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Powell v DenCorp Lifts Pty Ltd [2021] NSWPIC 506 |
| APPLICANT: | Wayne Lawrence Powell |
| FIRST RESPONDENT: | DenCorp Lifts Pty Ltd |
| SECOND RESPONDENT: | Inghams Enterprises Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 08 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of future total left knee replacement; both respondents deny liability for surgery, which it is agreed is a medical necessity; Held - on an examination of the evidence on a common-sense basis, the requirement for the surgery is a result of the injury suffered in the course of the applicant’s employment with the first respondent Kooragang Cement Pty Ltd v Bates followed; any injury suffered by the applicant in the course of his employment with the second respondent did not give rise to a need for the surgery; award for the second respondent against the applicant; first respondent to pay the costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | 1. Award for the second respondent against the applicant. 2. The applicant suffered injury to his left lower extremity (knee) in the course of his employment with the first respondent on 29 May 2000. 3. As a result of the injury referred to in [2] above, the applicant requires left total knee replacement surgery as foreshadowed by Dr Freihaut. 4. The surgery proposed by Dr Freihaut is reasonably necessary as a result of the injury suffered by the applicant in his employment with the first respondent. 5. The first respondent is to pay the cost of an incidental to the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
On 29 May 2000, whilst working for DenCorp Lifts Pty Ltd (the first respondent), Wayne Powell (the applicant) suffered an injury to his left knee when the back end of a column which he was attempting to weld fell from a workbench and struck the outside of his left knee.
The applicant made a claim against the first respondent in respect of his left knee injury, and in September 2002 the Compensation Court of New South Wales issued Short Minutes of Order reflecting an agreement between the applicant and the first respondent for a 12% loss of efficient use of the applicant's left leg at or above the knee and 3% loss of efficient use of the right leg at or above the knee.
Following the injury, the applicant was taken to hospital for x-rays which confirmed an undisplaced fracture of the left tibial plateau. He was placed in a cast for approximately eight weeks. The applicant was paid weekly benefits and medical expenses during this period.
The applicant left the employ of the first respondent in or about 2001. He spent approximately four years as a stay-at-home father and during that period carried out some cash jobs using his welding expertise.
In or about 2006 or 2007 the applicant commenced work with Sunny Brand Chickens, which later became Inghams Enterprises Pty Ltd (the second respondent). The applicant’s role with the second respondent was and remains being in charge of maintenance, and also attending to various tasks around the commercial premises. The applicant noted that on most days he was constantly walking on concrete surfaces but used well-maintained work boots. He was required to go up and down a lot of stairs and ladders but did not do so while carrying any items and he states he has not strained or hurt his knee during the course of his employment with the second respondent.
The applicant states that since the first injury, his left knee symptoms have never gone away and in fact have got progressively worse. He brings these proceedings seeking the cost of a left total knee replacement as recommended by his treating surgeon Dr Freihaut.
Each of the respondents denies liability for the cost of the surgery.
By a section 78 notice dated 17 February 2021, the first respondent denies liability on the basis that the surgery is not reasonably necessary as a result of the injury sustained in 2000, but rather is necessary as a result of a degenerative condition in the applicant's left knee.
For its part, the second respondent denies that the nature and conditions of employment have made any contribution to the requirement for surgery and denies that the applicant has suffered injury or that his employment with the second respondent is the main contributing factor to any degenerative condition or aggravation thereof.
There is no issue that the surgery contemplated by Dr Freihaut is a medical necessity.
ISSUES FOR DETERMINATION
The only issue for determination is the cause of the need for the surgery contemplated by Dr Freihaut.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 17 November 2021. On that occasion
Mr M Hammond instructed by Mr B Burke appeared for the applicant. Ms L Goodman instructed by Ms K Ralph appeared for the first respondent and Mr D Saul instructed by
Mr P Machen appeared for the second respondent.
The parties were unable to resolve their differences, and accordingly the matter proceeded to hearing before me. The parties were given an opportunity to conciliate the matter however, they are unable to do so. I am satisfied the parties to the proceedings understand the effect of the orders sought and representations made in the application and have been unable to reach settlement despite using their and my best endeavours.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 23 September 2021 and attached documents, and
(d) second respondent’s AALD dated 9 November 2021 and attached documents.
FINDINGS AND REASONS
The cause of the requirement for surgery
As this is a dispute concerning causation, it is important to point out the applicant bears the onus of proving the requirement for surgery is work related. In determining the cause of an injury, or indeed the cause of the requirement for treatment sought, the Commission must apply a common-sense test of causation. That test was initially set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSW LR452 (Kooragang) where his Honour made clear what is required in the Workers Compensation context is a common-sense evaluation of the causal chain, rather than the use of or importation of notions of proximate cause. The Kooragang test has been consistently followed in the Workers Compensation context since his Honour's decision.
In the context of a claim for medical expenses where a dispute has arisen concerning causation, it is necessary to examine the meaning of “results from" as that term is used in section 60 of the Workers Compensation Act 1987 (the 1987 Act). The principles of causation and the notion of "reasonably necessary" are different and must be kept distinct in analysing claims for medical expenses under section 60. In this matter, it is not necessary to examine whether the proposed surgery is reasonably necessary, as there is no dispute that the surgery is required. What is in in dispute is whether the required surgery “results from" either or both of the alleged workplace injuries.
By way of example, if a worker sustained an injury as defined in section 4 of the 1987 Act which was an aggravation of osteoarthritis in the hip joint and associated with a level of pain one week after the injury then there would be an indicator for the need for hip replacement, and the need for hip replacement at that time would result from the injury. However, if the evidence established that all symptoms would resolve completely by their own accord in another week or so, hip placement at that one-week point would not be “reasonably necessary as a result of the injury."
The question which is relevant, and which highlights the distinction between "mere but for" and “common-sense" causation is: did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
For the first respondent, Ms Goodman submitted that the trauma to the applicant's knee in the 2000 injury was to the lateral aspect of that knee, whereas the issues from which he is presently suffering are medial. She referred to the report of Dr Schutz at page 17 of the first respondent's Reply in which Dr Schutz noted “given that the fracture was undisplaced and thus the articular surface may well not have been disturbed, there is a very small risk only of developing arthritis in the lateral compartment of the knee due to the accident on 29 May 2000." The difficulty with the proposition of Dr Schutz is that the applicant’s own evidence, which is uncontested and indeed supported by the contemporaneous treating doctor records, is that his left knee symptoms never resolved after the initial injury and continued to deteriorate over time. In other words, the prognosis which Dr Schutz set out at page 21 of the Reply did not come to pass.
Indeed, in a clinical entry dated 13 November 2019 of the applicant's general practitioner, there was an entry noting that the applicant had “fractured left tibial plateau 20 years ago. Left knee pain seems… worsening." That record is consistent with the applicant's statement and with the other clinical evidence.
Ms Goodman took the Commission to a report from the applicant's general practitioner Dr Watterston dated 28 August 2002, found at page 25 of the second respondent’s AALD. In that report, Dr Watterston set out the history of the injury, and noted that at the time of the appointment “it would appear that he has some ongoing cartilage pathology [an early osteoarthritis] on clinical grounds." Ms Goodman submitted that Dr Watterston did not intrinsically linked those symptoms to the May 2000 injury, however, I respectfully do not accept that submission.
The context of Dr Watterston's comments is a report to the applicant’s then solicitors setting out the history of injury. It noted the applicant suffered immediate pain at the time of injury, but the following day, his left knee was swollen, painful and required him to consult Dr Watterston. An x-ray was ordered which suggested “an acute undisplaced fracture of the lateral tibial plateau." A back slab plaster was applied to the applicant’s leg, and on 2 June 2000, he was referred to the Lismore Base Hospital for application of the full leg fibreglass cast. The plaster was removed in early August 2000 and the applicant referred to physiotherapy. When reviewed on 17 August 2000, the applicant was walking stiff legged and for them, he flexed his left knee 20% while weight bearing. Dr Watterston then described the applicant’s referral to Dr Pearce, orthopaedic surgeon who carried out an arthroscopy which demonstrated that the fracture of the lateral tibial plateau had healed. Relevantly, however, the arthroscopy of Dr Pearce “did find some articular damage to the medial side of the joint."
It is against this background that Dr Watterston provided the opinion that the applicant had ongoing cartilage pathology and possibly early osteoarthritis.
Relevantly, in my view, the finding referred to by Dr Watterston concerning the existence of medial joint pathology is significant, as that pathology and its development over the years is consistent with the pathology now displayed on investigation and for which the relevant surgery is sought.
Although Dr Pearce said in his report dated 13 December 2000 that he would find it difficult to equate medial site damage with the stated cause of injury, it is noteworthy that there were no symptoms in the applicant’s knee before 3 May 2000 incident, and that they persisted for decades afterwards.
The first respondent also relied on the report of Dr Barrow, an independent medical examiner (IME) dated 18 February 2021. In his report, Dr Barrow notes that Dr Pearce was unable to attribute any medial compartment changes to traumatic incident. Dr Barrow noted that Dr Pearce had said degenerative changes were observed by the treating surgeon who:
“simply gave the opinion that the medial changes were degenerative and unrelated to the acute work trauma and could not see a causal link between the injury because undisplaced crack fractures through the lateral tibial plateau and subsequent degenerative changes on the opposite side of the knee in the medial compartment" [original emphasis].
The difficulty with this opinion is that Dr Pearce does not go so far. He says that it is difficult to equate medial symptoms in the applicant’s left knee with the initial trauma, however, he does not specifically rule out nor state that it was definitively unrelated to the acute work trauma.
What is abundantly apparent from both the medical and lay evidence in this matter is that the applicant was asymptomatic in his left knee before the incident in May 2000. After that incident, his knee remained symptomatic and has only worsened. His symptoms have never gone away. Whilst it may be the case that correlation does not equal causation, a common-sense evaluation of all the evidence in this matter overwhelmingly supports the finding that the injury suffered by the applicant in the course of his employment with the first respondent is what’s giving rise to the requirement for the proposed surgery.
In terms of the claim against the second respondent, I note the applicant made no positive submissions against that party. As Mr Saul noted, even if there was an injury suffered in the course of employment with the second respondent (which is denied), it must materially contribute to the need for surgery.
On balance, I do not accept that the evidence discloses the applicant's employment with the second respondent has given rise to the need for surgery. I note that is the view of treating surgeon Dr Freihaut, who correctly noted the applicant’s knee had not improved since the injury with the first respondent, and that the requirement for surgery has been brought about by arthritis secondary to that injury.
That, in my view is consistent with the findings of the radiological investigations carried out in the aftermath of the injury in the year 2000, that is the presence of some arthritic changes at that time. In my view, Dr Freihaut deals with Dr Pearce and Dr Barrow’s contentions regarding the damage to the applicant’s knee relating only to the lateral side of the joint in his report dated 26 March 2021. In that document, he notes:
“Any intra-articular fracture to a joint may result in post-traumatic arthritis to that joint at a later date. Arthritis is a condition which affects the entire joint not merely the localised area to which the trauma was sustained. In Mr Powell’s case however, given the findings of Dr Pearce’s arthroscopy performed soon after the incident, it is apparent that the degenerative changes were already present in the medial compartment of his knee at that time. It has not been suggested that the meniscal tear occurred at the time of the injury. The tear is likely a result of the degenerative disease. If this disease was already present at the time of Dr. Pearce’s arthroscopy it would indicate a more constitutional cause, rather than a post-traumatic cause for degeneration and therefore the meniscal tear as suggested by Dr Barrow.…
5. Given the findings of Dr Pearce's arthroscopy. It is likely that degenerative arthritis was present in Mr Powell's knee prior to the injury in May 2000. According to Dr Pearce’s letter dated 23 October 2000 the indication for arthroscopy was unspecified ‘pain’. This is in a knee where the acute injury sustained in May 2000, that is, the lateral tibial plateau fracture, according to Dr Pearce’s report dated 23 October ‘seems to have healed’ and In his letter dated 13 December 2000 ‘had obviously healed’. This would indicate any ongoing pain was not due to the fracture but due to exacerbation of the pre-existing degenerative disease in the knee. Due to the complex nature of the degenerative joint disease pain does not always result from direct trauma to the involved compartment.
6. Based on the available evidence, and I am unaware of an MRI being performed around the time of the injury, it is unlikely Mr Powell sustained direct damage to the medial compartment of his knee during the injury May 2000.
7. On the balance of probabilities, If Mr Powell had not suffered the injury to his knee in May 2000, it is likely he would still need a knee replacement given the fact degenerative disease was almost certainly present in his knee prior to the injury. It is likely his arthritis, as Dr Barrow suggested, has a more constitutional component as a source of causation rather than being post-traumatic. Given the fact, however, that Mr Powell had ongoing pain following resolution of the acute injury, i.e., the tibial plateau fracture, and the only finding as a cause of such pain was degenerative joint disease, it would be reasonable to assume the injury in May 2000 caused the exacerbation of his pre-existing condition and may have caused Mr Powell to require a knee replacement at an earlier date than which he otherwise would have."
That finding is supported by the views of Dr Machart, IME for the second respondent.
Dr Clayton, IME for the applicant provides a report in which he attributes the accepted need for surgery to both the injury suffered with the first and second respondents. The difficulty with Dr Clayton’s view is, however, that he ascribes the second respondent's liability as follows:
“In my opinion, Mr Powell's employment over the 15 years between 2005 and 2020 involving hard labouring on a concrete floor has likely caused an aggravation or acceleration of the arthritis in his left knee….
The requirement for a knee replacement currently is due to the injury in 2000 and the aggravation of the osteoarthritis. This has contributed to a lesser extent, however, still to some significance by his employment with Ingharms Chickens. If it was not for the employment in both cases, and especially the injury in 2000, it is unlikely he would have required a knee replacement at this stage of his life."
The difficulty with Dr Clayton's opinion is that he takes an incorrect history of the nature and extent of the applicant's duties with the second respondent. The applicant's own statement, as already recorded in these reasons above, does not reveal a history of hard labour on concrete floors. Rather, the applicant's duties involved mostly standing for some extended periods and travelling up and down stairs from time to time in the course of his employment. He does, however, have to do quite a bit of plumbing work and to get down on his knees to do it however, even Dr Clayton does not refer to these duties as being the cause of the applicant’s symptoms. Rather, Dr Clayton says the applicant has undergone a 15-year history of “hard labour". The evidence does not bear this out. For this reason, I reject the portion of Dr Clayton's report which describes causation to the applicant’s employment with the second respondent
SUMMARY
For these reasons, it follows that the need for the proposed surgery has come about as a result of the injury suffered by the applicant in the course of his employment with the first respondent, and as such, the Commission will make the findings and orders as set out on page 1 of the certificate of determination.
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