Rech v Kel Campbell Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rech v Kel Campbell Pty Limited [2022] NSWPIC 325
APPLICANT:	Eugene Anthony Rech
RESPONDENT:	Kel Campbell Pty Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	24 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of surgery to the applicant’s right second, third and fourth toes for injury in the form of aggravation or exacerbation of a condition in the right second toe caused by the requirement of the respondent employer for the applicant to wear steel capped boots in the course of employment as a truck driver; the respondent accepted injury to the right second toe but claimed that the requirement for surgery was as a result of a pre-existing condition in the toe caused by the applicant’s type 2 diabetes and the amputation of the right great toe; Held – finding that the applicant suffered exacerbation of the injury to the right second toe accepted by the respondent; finding that the surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of the injury; the respondent ordered to pay for the costs of and incidental to such surgery.
DETERMINATIONS MADE:	1. The applicant suffered injury to the right second toe arising out of or in the course of his employment with the respondent on 16 November 2020. 2. The surgery proposed by Dr Martin, namely second toe interposition arthroplasty and percutaneous flexor tenotomy of the third and fourth toes, is reasonably necessary as a result of such injury. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay for the cost of such surgery and associated hospital and rehabilitation expenses.

STATEMENT OF REASONS

BACKGROUND

Eugene Anthony Rech (the applicant/Mr Rech) claims compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his right foot, in the form of second toe interposition arthroplasty, percutaneous flexor tenotomy of the third and fourth toes and associated hospital expenses, recommended by his treating surgeon, Dr Brian Martin.
The surgery is claimed to be reasonably necessary as a result of injury arising out of or in the course of Mr Rech’s employment as a truck driver by Kel Campbell Pty Ltd (the respondent) on 16 November 2020. Mr Rech suffered recurrent ulceration on his right second toe as a result of the requirement by the respondent that he wear steel capped boots in the course of his employment.
In a notice issued to the applicant by the respondent’s insurer, Insurance & Care NSW (icare) pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 3 September 2021[1], liability was accepted for injuries in the form of blisters to the applicant’s right foot lesser toes, and blisters to the left foot lesser toes. Icare noted that the applicant had been off work since 10 February 2021 and declined liability for the surgery proposed by Dr Martin, noting that his reports appeared to relate the need for surgery to the pre-existing claw toe deformity from which Mr Rech suffered resulting from amputation of the right great toe in 2017 due to osteomyelitis.
[1] Reply p 8, noting that the reference to page numbers herein is to those in the electronic records of the Personal Injury Commission (the Commission).
Icare stated that Dr Martin had not in his reports dated 24 May 2021[2] and 11 June 2021[3] addressed the basis on which the requested surgery was “reasonably necessary” to treat the accepted skin injury, or the fact that at the time of the surgery request in May 2021, the applicant had not been at work since February 2021. Icare noted the concession by Dr Martin that once work boots were no longer worn, the aggravation would cease.
[2] Application to Resolve a Dispute (Application) p 16.
[3] Application p 27.
Icare also referred to the independent medical examination of the applicant by Dr Anil Nair on 24 June 2021, his report dated 6 July 2021[4], and supplementary report dated 11 August 2021[5]. Icare asserted that the evidence indicated that the surgery requested by Dr Martin was required to treat the applicant’s pre-existing toe deformities, and that there was no evidence to indicate that the wearing of steel capped boots caused the claw toe deformities. It said:
“The evidence indicates that the wearing of steel capped boots and your pre-existing claw toe deformities materially contributed to the development of your blister injuries. We note however the evidence does not support that the work injury materially contributed to the need for surgery.”[6]
[4] Reply p 77.
[5] Reply p 82.
[6] Reply p 11.
In a subsequent s 78 notice dated 22 November 2021 icare advised the applicant of a decision that had been made to reduce the amount of his weekly payments, asserting:
“The amount of weekly payments that can be paid to you is based on your pre-injury average weekly earnings (PIAWE), your capacity for work, how long you have received weekly payments for, whether you have been able to return to work, your ability to earn in suitable employment and whether there are any applicable deductions.”[7]
In the reasons for the decision, icare advised that the decision had been made under s 43(1)(a) of the 1987 Act, and that under s 43(1)(b), it believed that Mr Rech was currently able to work in suitable employment 12 hours a day, 4 days a week as a:
(a)    “Truck driver – Relocation”;
(b)    “Light vehicle driver”, and
(c)    “Heavy Combination Truck driver”.
[7] Reply p 16.

ISSUES IN DISPUTE

The parties agree that the following issues remain in dispute:
(a) Has the applicant suffered an aggravation or exacerbation of the injury accepted by the respondent, namely “Blister (nonthermal), right lesser toe(s); Blister (nonthermal), left lesser toe(s)”, as a result of the requirement of the respondent that he wear steel capped boots in the course of his employment?
(b) Is the surgery proposed by Dr Martin reasonably necessary as a result of the injury pleaded in the Application, namely “Recurrent Ulceration on right 2nd toe due to wearing of steel capped boots”?

PROCEDURE BEFORE THE COMMISSION

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.
The parties attended a conciliation/arbitration hearing on 20 June 2022 conducted via Microsoft Teams. Mr De Meyrick of counsel appeared for the applicant briefed by Mr Lloyd. The applicant attended with Mr Lloyd. Mr Hanrahan of counsel appeared for the respondent briefed by Ms Singer. Insurance representatives also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 14 June 2022 lodged by the respondent with the following relevant attached documents:
(i)documents produced to the Commission by Dr Rajnarayan Yesireddy dated 16 May 2022;
(ii)FootPower form dated 26 April 2021;
(iii)initial consultation and assessment information form of FootPower dated 26 April 2021;
(iv)gait report of FootPower dated 26 April 2021;
(v)documents produced to the Commission by Dr Ramana Venkatesan as at 13 May 2022;
(vi)medical report Dr Ramana Venkatesan dated 24 November 2020, and
(vii)documents produced to the Commission by Dr Brian Martin dated 16 May 2022.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary they are a follows.

Applicant

The applicant draws attention to s 2A of the 1987 Act and s 3 of the 1998 Act (System objectives).
The applicant notes from his statement dated 23 March 2022[8] the insistence of the respondent for all drivers of its trucks to wear steel capped boots. This was in order to comply with the requirement of Caltex, which operated a fuel depot at Banksmeadow in southern Sydney from which he primarily worked. Caltex required all drivers on its site to wear such boots.
[8] Application p 2.
The applicant notes that he is a type 2 diabetic, but that his diabetes is well controlled and does not significantly affect his day-to-day activities.
The applicant notes the injury to his right great toe in 1995 in self-employment, which eventually led to the amputation of that toe in 2017. Notwithstanding this he was still able to fulfill his normal working duties as a truck driver at the time. He commenced employment as a tanker driver with the respondent in 2018.
The applicant says that he previously had no problems with his right foot when he wore standard footwear, but that when he commenced wearing steel capped boots he developed a fixed claw toe of his right second toe which was rubbing against the steel capped boots. He suffered a blister on his right second claw toe due to wearing such boots. He made a number of attempts at using different shoes to protect his toe and consulted a podiatrist. However these attempts were unsuccessful and he had significant ongoing ulceration of the toe.
The applicant notes his contact with his general practitioner, Dr Venkatesan, who referred him to Dr Martin, foot specialist. Dr Martin recommended a surgical procedure to straighten out his toes, thereby shifting pressure to other toes, resulting in the likelihood of being able to wear steel capped boots.
The applicant agrees that when Dr Nair examined him he had no blisters on his toes, but says that he only gets blisters when he wears steel capped boots. He had not been working for some months before he saw Dr Nair and therefore not wearing such boots. He can comfortably drive any vehicle if he is not required to wear steel capped boots.
The applicant notes that a subsequent employer for which he was driving trucks from Melbourne to Sydney also introduced a requirement to wear steel capped boots. The applicant therefore had to resign from this employment. Mr Rech then notes that in his current employment as a truck driver transporting mineral water from the Southern Highlands to the Central Coast, he is not required to wear steel capped boots. He is on probation in this employment, and has no current intention of retiring.
The applicant notes the finding of Dr Martin in his report dated 24 May 2021 that the fixed claw deformity of the right second toe is not correctable and that the third and fourth toes have flexible claw toes with callus at the tip of the toes. The proposal is for surgery to get the second toe out straight, and that given the applicant’s diabetes, it would be best to avoid internal fixation. Dr Martin recommends an interposition arthroplasty of the proximal interphalangeal (PIP) joint to straighten out the toes. He says that once the toe is straight, the pressure will then be sifted to the third and fourth toes, which he recommends be corrected at the same time, as they are flexible. Dr Martin recommends that the surgery be carried out under a multidisciplinary care model with the assistance of a perioperative physician and endocrinologist.
The applicant draws attention to the opinion of Dr Martin expressed in his report dated 11 June 2021 that Mr Rech’s employment is the main/substantial contributing factor to his current symptoms due to the fact that he was required to wear safety boots for his employment.
The applicant submits that Dr Nair is of the same opinion as Dr Martin when he says that the forefeet deformity of the applicant has predisposed the development of blisters, and that the mandatory use of steel capped boots has also been contributory. Dr Nair’s opinion is that both the lesser toe deformities, as well as the mandatory use of steel capped boots, has resulted in the skin being under threat, and are equally contributing factors to the applicant’s condition. Dr Nair says that, while there were no blisters or ulcers found during his examination, it is likely that if Mr Rech should return to work and wear steel capped boots, blisters would re-develop.
The applicant notes that in his supplementary report Dr Nair says that while the proposed surgery is required to address Mr Rech’s pre-existing condition, that condition was asymptomatic prior to the mandatory use of steel capped boots. The lesser toe deformities coupled with steel capped boots did result in the toe deformities.
The applicant submits that both Dr Martin and Dr Nair are of the opinion that he needs the surgery proposed to enable him to get back to the sort of work in which he was engaged before he was injured. There is a causal connection between the work that he was performing for the respondent and the reasonable necessity for the surgery proposed by Dr Martin.
The respondent relies on what Deputy President Roche said in Diab v NRMA Insurance Ltd[9] as to the reasonable necessity for treatment as a result of injury, including the reference therein to what Burke CCJ said in Rose v Health Commission (NSW)[10]. The applicant also refers to Taxis Combined Services (Victoria ) Pty Ltd v Schokman[11], what the Court of Appeal said in Kooragang Cement Pty Ltd v Bates[12], and to what Deputy President Roche said in Murphy v Allity Management Services Pty Ltd[13].
[9] [2014] NSWWCCPD 72 (Diab).
[10] NSWCC 2; (1986) 2 NSWCCR 32.
[11] [2014] NSWWCCPD 18 (Schokman).
[12] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[13] [2015] NSWWCCPD 49 (Murphy).
The applicant submits that there can be multiple causes for a condition, and that in this case the requirement for the applicant to wear steel capped boots was one cause, not necessarily a substantial cause, of the need for the surgery now proposed by Dr Martin.
The applicant submits that the fact that his current employer does not require him to wear steel capped boots does not absolve the respondent to meet the cost of the surgery which he now seeks.

Respondent

The respondent focuses on the injury pleaded in the Application, noting the applicant’s previous history of type 2 diabetes and amputation of his right great toe, and submits that he is unlikely to return to the type of employment in which he was engaged when injured as it is simply unsuitable for him. The applicant’s condition must be looked at in the context of his pre-existing condition, noting that the only injury conceded by the respondent is the blistering of the toes and skin condition, treatment for which has been provided.
The respondent notes that there has been no submission made that the underlying pathology in the applicant’s right foot has been aggravated or exacerbated, or evidence of such. The respondent submits that the recurrent ulceration of the skin on the applicant’s second toe is a condition of gradual onset which occurred over a period of time, and not one that occurred only on the date relied upon in the Application.
The respondent submits that the condition appears to have been reported in May 2020, only in respect of the right foot, and there is evidence on the clinical notes of the treating general practitioner, Dr Venkatsen, of problems with the applicant’s feet in January 2021 and September 2021. The respondent submits that the ulcers referred to in the doctor’s clinical notes for which Mr Rech received treatment were as a result of his diabetic condition, and not his employment, specifically the injury pleaded on 16 November 2020.
The respondent submits that while Dr Nair says that surgery for the applicant’s is logical management from a medical point of view, that does not mean that it is reasonably necessary as a result of the injury pleaded by the applicant.
The respondent also submits that there is no evidence that other appropriate treatments, such as the use of orthopaedic shoes, for the applicant’s condition have been exhausted. Rather according to the respondent the applicant wishes to go straight to surgery rather than trying alternative treatment.
The respondent submits that there is no dispute that the applicant’s skin on his feet is put under stress by the wearing of steel capped boots, but there has been no permanent alteration to the pathology in the right foot.
In respect of the surgery, the respondent submits that according to Dr Martin the deformity in the left second toe is not correctable, and therefore questions how the proposed surgery is going to assist Mr Rech’s condition. The respondent submits that it would be tantamount to “opening a pandora’s box” and that the applicant would be entering a “forest of uncertainty” if he was to proceed to surgery, noting that it is encouraged by the treating surgeon. The respondent questions if Dr Martin has been supplied with sufficient information on which to base his recommendation for surgery.
The respondent submits that nothing claimed to have occurred on the date of injury pleaded in the Application gave rise to the need for surgery. Whatever happened on that day was not “a substantial contributing factor” to the need for surgery. Rather it was the underlying condition from which Mr Rech suffered that gave rise to the need for surgery. This pre-existing condition placed a limitation on the type of employment for which the applicant was suited.

Applicant in response

The applicant submits that, apart from the issue of causation of the applicant’s condition, there has been no challenge by the respondent that the surgery is not appropriate for the condition in his right foot.
The applicant submits that it is not to the point as to whether the condition was either aggravated or exacerbated by the wearing of steel capped boots. Recurrent ulceration by the wearing of such boots required by the respondent was one of the causes of the need for surgery, and that this is sufficient for a finding that the treatment is reasonably necessary as a result of injury.
The applicant submits that the situation in which he finds himself is not unique, referring for example to a case of a worker suffering from dermatitis because of repeated immersion of the hands in water or other liquids required in the course of employment. Whilst the condition may clear up when immersion ceases, it will recur with further exposure to the offending liquid(s).
The applicant rejects the respondent’s submission that the applicant’s employment must be a substantial contributing factor to the need for surgery, submitting that is not the law, and in any event such an issue was not raised by the respondent’s insurer in the s 78 notices. Causation of the need for surgery in this case is multi factorial, and it is sufficient if one of those factors gave rise to the reasonable necessity for surgery.

FINDINGS AND REASONS

Workers compensation legislation

The applicant refers to s 2A of the 1987 Act which is to the effect that it must be construed with, and as if it formed part of, the 1998 Act. In the event of an inconsistency between the 1987 Act and the 1998 Act, the latter prevails to the extent of the inconsistency.
Section 3 of the 1998 Act, “System objectives” is as follows:
“The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives—
(a)    to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b)     to provide—
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c)     to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d)     to be fair, affordable, and financially viable,
(e)     to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f)      to deliver the above objectives efficiently and effectively.”

Causation

The applicant relies on a number of well-known authorities referred to at [26] above. The test of causation in workers compensation matters is explained by Kirby P in Kooragang at [463G] as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
One issue in this case is whether the applicant has suffered an aggravation or exacerbation of the injury accepted by the respondent as a result of the requirement of the respondent for the applicant to wear steel capped boots in the course of his employment. The injury is stated in the Application as:
“Recurrent Ulceration on right 2^nd toe due to wearing of steel capped boots.”
Dr Martin says at [2] in his report dated 11 June 2021 in answer to a question:
“Based on your review on Mr. Eugene Rech on May 24th 2021 do you believe he has aggravated a pre-existing condition due to the nature conditions of working as a truck driver based on his requirement to wear safety work boots?”
that:
“Mr Rech has had exacerbation of claw toe deformity due to the pressure from the work boots that he is required to wear.”
In answer to question [4] in that report:
“Do you believe that Mr. Rech’s employment is the main/substantial contributing factor to any of his current symptoms as alleged during your review with him? Please give reasons to support your opinion.”
Dr Martin replies:
“Yes. Due to the fact that he was required to wear safety boots for his employment.”
Dr Nair says in his report dated 6 July 2021 in answer to question [3]:
“Considering the fact that he has diabetes type 2, has work been a substantial contributing factor to the injury? Please give reasons to support your opinion.”
that:
“Mr Rech's diabetes is well-controlled; he has no end organ damage; he has palpable pedal pulses; he has previously been judicious and compliant with attending the Diabetic Foot Clinic. It is my opinion that both the lesser toe deformities, as well as the mandatory use of steel capped boots, has resulted in the skin under threat, therefore equally contributing as factors to the condition.”
Dr Nair says at [4] in the same report in answer to a poorly worded question, but apparently seeking the doctor’s belief as to whether in view of the fact that Mr Rech had not returned to work since 10 February 2021, the blisters and ulcers suffered were in relation to the pre-existing condition of type 2 diabetes that:
“Whilst there are no blisters or ulcers found during my examination, at this point in time, it is likely that should Mr Rech return to work and wear steel capped boots, these would re-develop.”
Later in the report Dr Nair says when asked to comment on a report of a Dr Thornley that:
“Doctor Thornley infers that if Mr Rech were provided with appropriate footwear, the chance of blisters and ulcers will be reduced. I agree with this opinion. The fact that I agree is not mutually exclusive with my opinion that surgical treatment of his lesser toe deformities is a valuable adjunct to further reduce the chance of blisters and ulcers.”
In his report dated 11 August 2021 Dr Nair says that the proposed surgery is required to address Mr Rech’s pre-existing condition, but that it was important to note that the pre-existing condition was asymptomatic prior to the mandatory use of steel capped boots. His opinion is that the lesser toe deformities coupled with the steel capped boots did result in the toe ulcerations. Dr Nair says in summary that if either the mandatory use of steel capped boots coupled with the lesser toe deformities was not present, it would have been unlikely that Mr Rech would have developed ulcers or blisters. It is his view that both these factors contributed to the blisters. The blisters were not present when Dr Nair reviewed the applicant in June 2021 and as such surgery was not mandatory at that stage. However the doctor says that the surgery is logical if the aim is to return Mr Rech to work, as it is likely that blisters or ulcers will reoccur with the use of steel capped boots.
The applicant has pleaded his case as one of recurrent ulceration on the right second toe due to wearing steel capped boots. That pleading accords with the opinions of both Dr Martin and Dr Nair. It is of no moment that a specific date of injury has been claimed in the Application, and I reject the respondent’s submission that seems to imply that the applicant should be restricted to something that was claimed to have occurred on that day.
The case is, as submitted by the applicant, analogous to one involving a claim of injury in the form of dermatitis due to exposure to liquids or solvents in the course of employment.
The applicant relies on Schokman a case in which the applicant worker suffered from pre-existing periodontitis and poor oral hygiene, and was seeking compensation for the cost of treatment in the form a new bridge in his mouth following an assault in the course of his employment. In that assault Mr Schokman suffered dental injuries including the loss of four upper central incisors. The claim was denied by the respondent employer’s insurer on the basis that the requirement for the new bridge was as a result of the pre-existing condition. Deputy President Roche said at [51]-[52] in that case:
“51. The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not ‘result from’ the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler [2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5DDCR 286).
52. Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury. The appellant’s approach has ignored the fact, highlighted by Dr Roessler, that Mr Schokman required implants because of his injury, not because of his pre-existing periodontitis. The appellant’s submissions have also ignored Dr Roessler’s unequivocal evidence that the maintenance he has recommended is ‘directly connected to the injury’, which provided compelling support for the Arbitrator’s conclusion that the need for the treatment is necessary ‘as a result of’ the injury.”
In Murphy it was made quite clear again by Deputy President Roche that a condition can have multiple causes, and that the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before that treatment is recoverable under s 60 of the 1987 Act.
Dr Martin is of the opinion that the applicant’s condition has had exacerbation of claw toe deformity due to the pressure from the work boots that he was required to wear. This is also consistent with what Dr Nair says, quoted at [47] above. I accept that the applicant has suffered injury in the form of an exacerbation of his condition. He does not need to show, as submitted by the respondent, that there has to be an aggravation of the underlying condition to succeed in his claim. What he needs to show is that he suffered injury arising out of or in the course of his employment with the respondent and that the surgery he seeks is reasonably necessary as a result of that injury.

Surgery

The matters relevant to a finding of the reasonable necessity for treatment in the context of s 60 of the 1987 Act are set out by Deputy President Roche at [88] in Diab as follows:
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment, and its potential effectiveness;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Both Dr Martin, the treating surgeon, and Dr Nair regard the surgery proposed by Dr Martin as likely to be appropriate and effective. I do not accept the respondent’s submission that other alternative treatment options have not been exhausted. The applicant’s evidence is simply that he has tried other footwear, which does not cause the problems caused by the steel capped boots which were required by the respondent and a subsequent employer. Mr Rech has sought treatment from a podiatrist and attended a foot clinic. The cost of the treatment is not put in issue.
My finding is that the surgery proposed by Dr Martin, namely second toe interposition arthroplasty and percutaneous flexor tenotomy of the third and fourth toes, is reasonably necessary as a result of in jury on 16 November 2020. Pursuant to s 60 of the 1987 Act the respondent is to pay for the cost of such surgery and associated hospital and rehabilitation expenses.

SUMMARY

The applicant suffered injury to the right second toe arising out of or in the course of his employment with the respondent on 16 November 2020.
The surgery proposed by Dr Martin, namely second toe interposition arthroplasty and percutaneous flexor tenotomy of the third and fourth toes, is reasonably necessary as a result of such injury.
Pursuant to s 60 of the 1987 Act the respondent is to pay for the cost of such surgery and associated hospital and rehabilitation expenses.

[2022] NSWPIC 325

24 June 2022