Raw v Uniting Church in Australia (NSW Limited)
[2022] NSWPIC 10
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Raw v Uniting Church in Australia (NSW Limited) [2022] NSWPIC 10 |
| APPLICANT: | Ethel Jean Raw |
| RESPONDENT: | Uniting Church in Australia (NSW Limited) |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim by worker for the cost of proposed total left knee replacement alleged to result from an accepted injury to the right knee in 1994; evidence of treating orthopaedic surgeon that connection between injury and the proposed treatment was speculative accepted; Held - award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
INTRODUCTION
Ethel Jean Raw (the applicant) is 79 years of age. During her working life, she was employed by the Hunter Retirement Village Old Church Close and Courtman Hall, a facility operated by the Uniting Church in Australia (the respondent). On 1 November 1994, the applicant suffered injury to her right knee in the course of her employment. With the exception of a short period following the injury the applicant has been unable to return to the workforce. She has undergone many operative procedures on her right knee, including a total knee replacement, and has developed symptomatology in other parts of her body as a result of the knee injury.
The respondent admitted liability in relation to the injury to the applicant’s right knee and consequential medical conditions of the back and left leg. The applicant was paid weekly compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act).
On 24 February 2020, the applicant was referred to an orthopaedic surgeon, Dr Christopher Dunkley, by her general practitioner Dr Marney Watson. Dr Dunkley expressed the opinion that the applicant required a left total knee replacement as the osteoarthritis in her knee was not susceptible to treatment by conservative measures.
The respondent has denied liability for the cost of that treatment. It is accepted that the surgery is reasonably necessary medical treatment. However the respondent disputes that the need for knee surgery results from the injury in 1994.
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims an order that the respondent pay the cost of the total knee replacement proposed by Dr Dunkley pursuant to s 60(5) of the 1987 Act.
When this matter came on for conciliation and arbitration on 6 December 2021, Mr Hart, of counsel, represented the applicant and Mr Doak, of counsel, represented the respondent. The conciliation and arbitration hearing was conducted over the telephone.
I was informed by counsel that the parties were unable to reach agreement on the threshold issue of whether the accepted need for total knee replacement results from the injury in 1994. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to reach a resolution of the matter prior to and at the conciliation conference.
EVIDENCE
The documents before the Commission are as follows:
(a) the Application to Resolve a Dispute and the documents attached;
(b) the Reply and the documents attached, and
(c) the respondent’s letter of instruction to Dr Machart dated 3 February 2020 and its letter requesting a report from Dr Dunkley dated 14 July 2020 both of which were forwarded by email during the telephone conference on the application of the applicant.
There was no objection to any of the material referred to above and there was no application to adduce further oral or written evidence in the matter.
SUBMISSIONS
The submissions of counsel are recorded and I do not propose to reiterate each of the submissions made by counsel at the arbitration hearing. I should record, however, that I was referred by counsel to Diab v NRMA [2014] NSWCCPD 72 and (Diab) and Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 and a number of other cases addressing the meaning of the phrase “a material contribution”. I intend to follow the instruction in those cases.
At least since the decision of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716 (Sutherland Shire Council) the phrase “material contribution” has been equated with the phrase “results from” which is frequently found in the 1987 Act. The effect of the decision in the Sutherland Shire Council case was to equate the concept of causation in the statutory workers compensation legislation with that at common law.
Mr Hart stressed that it was only necessary for the applicant to prove that the injury was a cause of the need for the proposed surgery. He argued that this task was uncomplicated in view of the fact that the respondent had admitted liability for a consequential medical condition of the knee some 20 years ago and had paid the applicant compensation for permanent loss of efficient use of her left leg at or above the knee.
Mr Hart argued, correctly, that the applicant had “terrible surgical outcomes” from the procedures performed on her right knee over many years with the consequence that she was required to favour that knee and place more weight on her left leg. He referred to the medical evidence which supported that proposition including a referral letter from the applicant’s treating general practitioner, Dr Wilson, to Dr Dunkley of 23 April 2019.
Importantly, Mr Hart submitted that the respondent’s insurer had misstated the test for causal nexus between an injury and a consequential medical condition when eliciting information on this subject from Dr Dunkley. The letter to Dr Dunkley utilised the phrase “main contributing factor” proof of which is essential for a disease injury but not of a consequential medical condition.
Mr Doak argued that the applicant had not discharged the onus of proving that the need for left knee surgery resulted from the injury to the applicant’s right knee in 1994. He relied largely on the opinion of Dr Dunkley. Buyers
It will be necessary to return to the submissions of counsel in resolving the issues in dispute. It is first necessary, however, to consider the evidence of the applicant and of Professor Ghabrial, the orthopaedic surgeon qualified by the applicant’s solicitors and Dr Machart, the orthopaedic surgeon qualified by the respondent’s solicitor. What follows is not a comprehensive survey of all of the evidence in the case. Rather I set out the salient points of the evidence so that the parties may understand the way in which the Commission has resolved the dispute.
The applicant
The applicant’s evidence is contained in a signed statement dated 3 September 2021. There was no application to cross-examine her on that evidence. The applicant records that she suffered injury on 1 November 1994 when she slipped on a mat on the floor striking her shoulder and her right knee as she fell. She was referred to the work’s doctor, Dr Beiers and prescribed hot and cold packs for her right leg and left shoulder. She returned to work after the incident and “struggled” to perform her duties for about three months. She was limping as her “right leg was giving me a lot of pain”.
In due course, the applicant was referred by Dr Beiers to Dr Berton, the orthopaedic surgeon who carried out an arthroscopy on her right knee. While the applicant returned to work on selected duties at reduced hours following this procedure her employment was terminated in July 1995.
On 9 August 1995, Dr Berton performed an “open release and medial plication” on the applicant’s right knee. She says that she was in hospital for five days and on crutches for about six weeks.
On 4 April 1997, the applicant settled a permanent impairment claim in respect of her right leg. By terms of settlement lodged in the Compensation Court the respondent was ordered to pay the application compensation for 25% permanent loss of use of the right leg above the knee pursuant to s 66 of the 1987 Act and for pain and suffering pursuant to the former s 67.
In May 1997, the applicant underwent another arthroscopic procedure with the debridement of her osteoarthritic right knee. When this procedure did not alleviate the applicant’s symptomatology, she underwent a total knee replacement at Warners Bay Private Hospital under the care of Dr Berton on 3 September 1997. She states that she was in hospital for some two weeks and that she left hospital using a walking stick. She also states that:
“At the present time I still occasionally have the need to use a walking stick when I feel unstable”.
On 22 July 1998, Dr Berton operated to repair the surgical scarring on the applicant’s right knee.
The applicant says that she has undergone the following further surgical procedures which result from her injury:
(a) a left L5/S1 microdiscectomy and foraminotomy on 9 October 1998;
(b) aspiration of her right knee on 11 August 1999;
(c) a further arthroscopy on her right knee on 27 August 1999;
(d) revision of her right knee replacement on 19 January 2000, and
(e) a further aspiration of her right knee on 1 February 2000.
On 13 December 2001, the applicant settled a claim for further lump sum compensation in the Compensation Court by which she was paid compensation for a further 10% loss of efficient use of the right leg at or above the knee and for 10% loss of efficient use of the left leg at or above the knee. While all of the documents relating to this claim were not before the Commission it is evident that the payment of compensation for the left leg was for a consequential medical condition, probably of the knee, in accordance with the opinion at that time of Dr Ghabrial.
The applicant says that:
“From a time after my first surgery I have often used a walking stick as a result of the pain in my right knee and feelings that it will ‘give way’. I still use it when I have to be on my feet for any length of time.”
The applicant records that as a result of increasing pain in her left knee she saw Dr Marney Wilson in 2019 and was referred for an MRI scan which she was told showed severe arthritis. She was then referred to Dr Dunkley, who recommended that she undergo a left total knee replacement. She says that in recent times her left knee “was giving way unpredictably”.
Dr Ghabrial
Dr Ghabrial first saw the applicant on 18 May 2001, at the request of her then solicitors, McDonald Johnson. After taking a history and reviewing the radiology, Dr Ghabrial diagnosed the following:
· recurrent left L4/5 disc prolapse;
· right total knee replacement, and
· osteoarthritis of the left knee and left ankle.
He expressed this opinion:
“Mrs Raw sustained injuries to her right knee as a result of a fall on 1 November 1994. She developed severe arthritis of the right knee which required multiple operations leading to the present problem which is marked stiffness and pain in the right knee. She has developed osteoarthritis of the left knee and she injured her back sustaining an L4/5 disc prolapse which has been excised but unfortunately she had recurrent symptoms in the back and the left leg consistent with recurrent L4/5 disc prolapse.”
Dr Ghabrial assessed a permanent loss of efficient use of the applicant’s right leg at or above the right knee at 55% and the permanent loss of efficient use of the left lower limb at or above the knee at 35%. He expressed the opinion that he could “not exclude the high possibility of left total knee replacement” although he noted that the applicant was not keen on such surgery at the present time.
Dr Ghabrial saw the applicant again on 2 June 2004 and reported that the applicant’s symptoms in her back and both lower limbs had increased since his last consultation. He noted that the applicant had undergone multiple operative procedures to her right knee:
“And as a consequence of her injury to the right knee she sustained pain in the left knee which was diagnosed as osteoarthritic changes in her left knee”.
Most recently, Dr Ghabrial saw the applicant again on 4 November 2019 and provided a report of that date. He reiterated his previous opinion in respect of the cause of the applicant’s left knee osteoarthritis. He assessed permanent impairment of the applicant’s back at 45%; permanent loss of efficient use of her right knee at 55%; and permanent loss of efficient use of her left knee at 45%.
By a further report of 16 December 2020, addressed to the applicant’s present solicitors, the doctor commented on the opinion of Dr Machart. He said this:
“I do agree that there is a constitutional element in the progression of the arthritis, there is no doubt that the injury to the right knee has caused over-compensation of the left lower limb, causing the need for surgery to the left knee.
On the other hand, if she did not have the injury to the right knee and has been not using the right knee due to multiple surgeries, even with the arthritis in the right knee, she would not have reached the stage of requiring the left total knee replacement.
To put it another way, I believe that the injury of the right knee has led to the acceleration of the left knee problem, requiring surgery as a result of that acceleration due to over-compensation of the left knee”.
Dr Machart
Dr Machart saw the applicant on 14 April 2020 and provided a report of 1 May 2020. He took a history of the injury and considered the radiological evidence and the reports of Dr Ghabrial. He noted that the applicant suffered from:
“Left knee osteoarthritis, reported to be as a result of over-compensation”.
The doctor stated that the pathology of spondylosis in the applicant’s lumbar spine and osteoarthritis in her left knee was expected to “deteriorate over time with advancing age”. He noted her age. He continued:
“The condition is degenerative. There may be a component which related to injury. Most of the progression of the arthritic pathology is constitutional.”
In answer to a question from the respondent as to whether there was evidence of a pre-existing physical condition prior to the injury, the doctor said that he could not confirm such a condition. He stated that he could not “attribute all the degenerative changes to the injury”. He continued:
“There is substantial non-injury-related degenerative condition, specifically left knee osteoarthritis. The claim that the osteoarthritis was as a result of over-compensation may have a minor impact. The majority of the pathology is degenerative. She is less active than she would have been in absence of injury. Progression of osteoarthritis cannot be attributed to the injury beyond levels that were evident at the time of the most recent determination”.
Dr Machart assessed a further 10% loss of efficient use of the left leg above the knee of which he attributed nine tenths to the applicant’s underlying “constitutional osteoarthritis” and one tenth to the progression of that condition due to the injury. Dr Machart does not specifically address the question of whether the need for the right knee surgery results from the injury in 1994.
DISCUSSION AND FINDINGS
It was accepted by the respondent that it was reasonably necessary that the respondent should submit herself to the right knee replacement surgery proposed by Dr Dunkley. It was also accepted by Mr Doak that the respondent has accepted in the past that the applicant had a consequential medical condition of her left knee as a result of over-compensating her injured right knee particularly at the time of the multiple operative interventions on that knee.
Nonetheless, the respondent contended that the evidence did not establish that the need for the left knee surgery resulted from the 1994 injury. While Mr Doak relied on the opinion of Dr Machart, he relied primarily on the unambiguous opinion of Dr Dunkley, the applicant’s treating orthopaedic surgeon. Dr Dunkley had first seen the applicant at the request of Dr Marney Wilson of Cardiff, who appears to have taken over the applicant’s treatment from Dr Beiers. By her referral of 9 January 2020, Dr Wilson set out in great detail the applicant’s medical history. She also recorded the following:
“She has been getting a lot of pain in her left knee, and MRI shows significant issues. She has longstanding right knee injury, and has been using her left knee more over a long time to protect her right knee.”
Dr Dunkley incorporated this history into his report of 24 February 2020. He noted that the applicant had a background history of a workplace injury which caused right knee and low back problems. This “culminated, after multiple operations, in a right knee replacement.” He also recorded the following:
“She tells me that she has been favouring this knee, as a result of the original injury on her right knee, which resulted in a poor outcome in relation to total knee replacement and as such she believes that her original injury, which culminated in an unsuccessful knee replacement, has been a significant contributing factor to her development of osteoarthritis in her left knee.”
By a supplementary report dated 31 July 2020 addressed to the insurer, Dr Dunkley addressed the opinion of Dr Machart and said this:
“I agree with Dr Machart that Ms Raw’s osteoarthritis is a degenerative condition and that over-compensation probably only had a relatively minor impact on the current pathology. It would be purely speculation to decide whether or not she would have required the surgery at the same time, 26 years after the injury, but under the assumption that over-compensation was a minor contributing cause, perhaps she would have lasted longer without the over-compensation, but again, I think this is purely speculative.”
The doctor then went on to address the insurer’s query as to the most appropriate hospital system in which the surgery should be carried out.
There is little doubt that the applicant suffered from an asymptomatic osteoarthritis in both her knees prior to the injury of 1994. Dr Berton, the orthopaedic surgeon, first saw the applicant on 10 March 1995 and continued to see her regularly over the next several years. His initial report to the applicant’s then solicitors, Bale Boshev, reported that a bone scan of 16 March 1995 demonstrated degenerative arthritis of both the applicant’s knees “predominantly the lateral compartments”. He observed that:
“The changes suggested that there was longstanding arthritic change in both knees that was asymptomatic but that her fall had exacerbated this underlying condition leading to her symptoms.”
Dr Berton noted that aggravation of her underlying right knee condition had been “refractory to simple surgical measures” although he believed, at the time, that “it appeared to have responded to the open release and medial plication carried out in August 2019”.
Despite the doctor’s optimism, the applicant returned to him in 1996 with increasing symptoms and a “marked antalgic gait”. The doctor noted that the applicant stated that she had a grossly swollen knee at the end of the day; that her walking time is in the order of 10 minutes at the most; and that she has marked pain at night
On 23 August 1996, Dr Berton provided a further report to the solicitors. He recorded that he had seen the applicant on four occasions since the previous report. He noted that the applicant had a deterioration in her pain profile, she had a marked antalgic flexed knee gait and had a large effusion in the right knee. He recorded that the applicant was only able to walk for very limited periods because of her pain.
By this report, Dr Berton expressed the opinion that while the applicant had degenerative changes prior to the injury, her fall had further damaged her right knee and resulted in her condition becoming symptomatic. In respect of permanent impairment, he said this:
“I believe that Mrs Raw has a permanent loss of use of the right knee at or above the knee of 25%. I believe that much of this is as a result of pre-injury arthritis but as a result of her fall she has suffered further injury, leading to aggravation of her knee.”
Osteoarthritis is a progressive condition. It is, therefore, likely that the “longstanding arthritic change” diagnosed by your Dr Berton in both knees would have progressed with the passage of time. Of course, the rate of change is uncertain and subject to external stimuli as is amply demonstrated by the effect of the injury and subsequent surgical procedures on the applicant’s right knee.
The opinions of the doctors qualified by the parties is, as usual, contradictory. As I indicated above, Dr Machart does not specifically address the issue of whether the need for surgery to the applicant’s left knee results from the 1994 injury. Patently, he accepts that overcompensating for the right knee injury has played some role in the loss of efficient use of the applicant’s left lower limb.
In a report that is not always easy to understand, he seems to suggest that that there has been no deterioration in impairment. However, he then states that there is a further 10% loss of efficient use of the left leg at or above the knee, although only one tenth of that loss could be attributable to the applicant’s right knee injury in 1994. He points out that the applicant’s immobility after the right knee injury may have lessened the wear and tear on her left knee.
Dr Ghabrial, on the other hand, accepts that the applicant had an underlying osteoarthritic condition which was progressive. However, he confidently states that overcompensation has hastened the need for surgery. Given the inadequacies of Dr Machart’s opinion, if the contest was limited to the views of the qualified doctors, I would have preferred Dr Ghabrial’s opinion as he specifically addresses the issue in dispute in quite direct terms.
However, in my opinion, a consideration of the opinion of Dr Dunkley, the treating orthopaedic surgeon leads to the conclusion that the applicant has not discharged the onus of establishing that the need for surgery results from the 1994 injury. I doubt that Dr Dunkley has been misled by the insurer misquoting of the test the rate injury in correspondence. He states quite specifically that while a case can be made that the applicant may not have come to surgery at this time but for overcompensation “this is purely speculative”.
Dr Dunkley’s view is compelling given the fact that the applicant had long-standing arthritic changes in her left knee in 1994. Essentially, he opines that it is impossible to speculate as to how these changes would have progressed over a long period of 27 years. Weight should be given to the opinion of Dr Dunkley as the treating doctor. He is unlikely to express a partial opinion. I prefer his opinion to that of Dr Ghabrial.
The passage of time since the injury also makes it impossible to draw any inferences in favour of causal nexus from the lay evidence. Proof of causal nexus requires more than speculation. In the circumstances, I make an award for the respondent.
0
1
0