Reitano v Sydney Trains

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reitano v Sydney Trains [2021] NSWPIC 414
APPLICANT:	Peter Reitano
RESPONDENT:	Sydney Trains
MEMBER:	Kerry Haddock
DATE OF DECISION:	15 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed cost of right total hip replacement pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); injury claimed to be aggravation, acceleration, exacerbation or deterioration of disease of osteoarthritis, pursuant to section 4(b)(ii) of the 1987 Act and additionally or alternatively a consequential condition as a result of accepted injury to left knee; respondent disputed that the applicant had sustained injury to right hip; respondent did not dispute that surgery was appropriate treatment; consideration of Kumar v Royal Comfort Bedding Pty Ltd and Murphy v Allity Services Pty Ltd; Held – the applicant sustained injury to his right hip as a result of aggravation of a disease to which employment was the main contributing factor and a consequential condition as a result of injury to his left knee; proposed surgery is reasonably necessary as a result of injury; award for the applicant for the cost of surgery, pursuant to section 60(5) of the 1987 Act.
DETERMINATIONS MADE:	1. That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act 1987, the cost of right total hip replacement procedure.

STATEMENT OF REASONS

BACKGROUND

The applicant, Peter Reitano (Mr Reitano) was employed by Sydney Trains as a fettler and asset maintainer.
Mr Reitano claims to have sustained injury to his right hip as a result of the nature and conditions of his employment. Additionally, or in the alternative, he claims that as a result of an accepted injury to his left knee, he developed an abnormal gait, resulting in injury to his right hip.

The applicant claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of proposed right hip replacement surgery.
The respondent is self-insured for workers’ compensation. On 14 August 2020, Transport for NSW issued Mr Reitano with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Transport for NSW disputed that the applicant had sustained injury to his right hip; that employment was a substantial contributing factor to any injury to his right hip; that employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of his disease injury; that he was entitled to weekly payments, as he did not have total or partial incapacity for work resulting from his right hip injury; that he was entitled to medical treatment for his right hip injury, as it was not reasonably necessary as a result of an injury; and that he was entitled to the cost of right hip replacement surgery, as it was not reasonably necessary as a result of his employment.
By letter dated 20 November 2020, the applicant’s solicitors requested on his behalf a review of the decision.
On 4 December 2020, Transport for NSW issued the applicant with a review notice, pursuant to sections 78 and 287A of the 1998 Act. It maintained its decision to dispute liability for injury to his right hip. It added a dispute that his employment was the main contributing factor the contraction of a disease injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 16 June 2021. He claimed that the nature and conditions of his employment, including, in particular, significant walking, climbing, negotiating uneven ground, repeated twisting and turning actions, often whilst load bearing, in the course of work as a painter/decorator and maintenance worker, and additionally as a fettler, caused him to sustain injury. Additionally or in the alternative, he claimed that as a result of primary injury to the left knee, he developed an abnormal gait, and as a consequence placed stress and strain on his right hip, resulting in injury. The injury was claimed to be a disease, with deemed date of injury of 3 July 2017.
The applicant claimed the sum of $15,082.30 for proposed right hip replacement procedure.
The respondent lodged its Reply on 7 July 2021.

PREVIOUS AWARDS

In the Compensation Court of New South Wales on 7 November 1996, there was an award for the respondent in respect of the claim for weekly compensation. The applicant was awarded $7,824 in respect of 10% permanent impairment of his back; and $4,890 in respect of 5% loss of use of his right leg at or above the knee. There were other orders that it is unnecessary to repeat.
There is a Certificate of Determination (COD) of the Workers Compensation Commission dated 20 November 2007, which refers to a Medical Assessment Certificate (MAC), and pursuant to which the applicant was to be paid the sum of $7,500 in respect of 6% whole person impairment (WPI), attributable to injury on 16 August 2004. The nature of the injury is not specified.
There is a further COD of the Workers Compensation Commission dated 19 November 2009. The applicant was to be paid the sum of $4,331.25 in respect of 3% WPI as a result of injury on 2 August 2007 to his lumbar spine. A MAC had been issued by Dr Mohammed Assem on 9 October 2009, in which he had assessed the applicant’s lumbar spine.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether the applicant has sustained injury as a result of the nature and conditions of employment;

(b)    whether the applicant’s employment was the main contributing factor to any disease injury;

(c)    the period of the nature and conditions;

(d)    whether the applicant has sustained a consequential condition, and

(e)    if injury in either manner is found, whether it materially contributed to the need for surgery.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 15 September 2021. Mr Morgan of counsel, instructed by Ms Kausar, appeared for the applicant, who was present. Mr Saul of counsel appeared for the respondent, instructed by Ms Leonard. Ms Shankar of Transport for NSW was also present.

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)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 9 September 2021 and attachments, filed by the respondent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Peter Reitano

Mr Reitano’s first statement is dated 10 November 2020.
Mr Reitano commenced employment with the respondent in 1983. He sustained an injury to his back for which he received a lump sum in the 1990s of about $10,000 for permanent impairment. The injury did not prevent him from carrying out his normal tasks, although he had periodic episodes of low back pain.

In the last few years of his employment the applicant sustained injuries to his right shoulder, right hip and left knee. His duties as an asset maintainer required him to perform minor maintenance. His core trade was painter and decorator, and most of his work maintaining railway stations involved painting, using a ladder, stretching and twisting, turning and working in prolonged positions while painting and plastering. He estimated that he climbed up and down ladders at least 100 times a day.
One of the more difficult aspects of painting is painting ceilings with outstretched arms. It was also necessary to carry tools and other equipment, including large containers of paint and ladders. It was necessary to kneel for lengthy periods and sometimes work in tight and confined spaces. The applicant also did carpentry and tiling work, where he was kneeling for lengthy periods, bending, lifting, twisting and turning.
In early 2012, the applicant developed pain and aching and restriction in his left knee. He was at Riverstone Railway Station, kneeling to paint skirting boards. He saw his then GP, Dr Cheng, and was referred to Dr [sic: Prof] Warwick Bruce. He underwent arthroscopy in May or June 2012. Liability was accepted.
In the years that followed, the applicant continued to have pain and aching in his left knee, which had worsened. He also noted more restriction in the ability of his knee to bend.
In or about 2013, the applicant developed pain and restriction in his right hip. There was no particular event. It had continued ever since. He had seen his current GP, Dr Chow, who referred him in July 2017 to Dr Bruce. Dr Bruce gave him a cortisone injection to his hip and said he would arrange an x-ray of his left knee. Dr Bruce told him that at some stage he would require a left knee replacement and a right hip replacement “in the next year or two”.
The applicant also sustained an injury to his right shoulder in 2013, while lifting a large ladder from a vehicle. Dr Chow referred him to Dr Goldberg and in 2013 he underwent right shoulder surgery. He still has restricted movement, pain and aching in his right shoulder.

On 3 July 0217, the applicant accepted an offer of voluntary redundancy. He had been unable to find alternative work. He has continued to receive weekly benefits.
More recently, the applicant had come under the care of Dr Bruce in relation to his right hip. It was the issue that had been troubling him the most. He had decided to defer his left knee replacement until his right hip was dealt with. He was taking painkilling medication all the time and his right hip was terribly disabling for him. Dr Bruce wanted to do a right hip replacement, but liability had been declined.

The applicant made a further statement dated 24 April 2021.
The applicant’s work included work as a fettler, as well as in maintenance. Both were heavy and involved much climbing ladders and walking over uneven ground, particularly as a fettler, in addition to the general strains placed on his hips, legs and back that he had described.
To the best of the applicant’s recollection, he injured his back in the 1990s, but it flared up in the early 2000s. In the mid-2000s he was receiving treatment for his back and had pain going into his right side and groin. He was told it was due to his sacroiliac nerve. He had a number of investigations of his back and right hip, because he was complaining about pain coming from his back into his right groin.
The applicant was referred to Dr McGill, who investigated his hip, but it was not a particular problem. Once the treatment of his back stabilised, his hip became less of an issue.
Mr Reitano stayed at work, doing his usual duties and coping as best he could. His hip became an increasing issue over the next 10 years, particularly after the injury to his left knee. He had noticed that after the left knee surgery, from that time on, and associated with the nature of the work he was doing, he had increasing problems with his right hip.
The applicant had continued doing heavy work and over a period of time after continuing to repetitively climb, lift and place strain on both lower limbs in his day to day activities, he noticed increasing issues associated with his right hip, which saw him referred for more specific investigations and treatment from Dr Bruce.
The doctors had told the applicant he had degenerative problems in his left hip as well. It is not a concern to him, but his right hip is quite painful, and he is eager to have the surgery.

Medical evidence

Dr Neil W. McGill – Consultant Rheumatologist

Dr McGill has produced his records pursuant to a Direction issued by the respondent. The handwritten notes are difficult to read, and I have relied mainly on the reports.
On 22 April 1992, Dr McGill reported to Dr Jonathan Ell, consultant neurologist and neuro-otologist.
Dr McGill recorded a history of MS (multiple sclerosis) and widespread musculoskeletal pain. The applicant had complained of joint symptoms that had become much more troublesome four months ago. He developed pain in the right first MCP (metacarpophalangeal) joint and then moderately severe discomfort in the left forefoot. Over the last few weeks, he had had pain in the left thigh, left calf, right elbow and forearm, and hands. During the last week, all his joint pains had considerably improved, unrelated to medication.
The applicant had had a rash on his penis for the last two months. This had been treated with antifungal therapy, with little response. He did not have psoriasis and had not had any HLA B27 associated disorders. There was no family history of inflammatory joint disease, although his mother had osteoporosis.
Dr McGill found no joint abnormality on examination. There was a full range of movement, no evidence of synovitis, and no joint tenderness. Dr McGill thought the rash would be consistent with circinate balanitis [which may be a common manifestation of reactive arthritis], although he suspected there were many other possibilities. The applicant’s back movements were full and there were no other findings of relevance to his joint symptoms.
Dr McGill opined that the applicant’s joint symptoms were consistent with mild inflammatory synovitis. There was nothing on examination to help confirm that possibility. He was to see a dermatologist in relation to his penile rash, which Dr McGill thought was a good idea. He had checked the applicant’s HLA B27 and some relevant immunological studies to determine whether there was any identifiable cause for his possible mild inflammatory synovitis. His current level of symptoms would not appear to warrant therapy, and Dr McGill had not recommended any.
On 14 May 1992, Dr McGill reported that the applicant’s rheumatoid factor, ANA and HLA B27 were all negative. His peripheral limb pains had resolved. His joint examination was again normal.
Dr McGill opined that it was possible that the applicant’s symptoms were due to mild inflammatory synovitis, but he had no way of confirming or refuting it. There was no indication for anti-rheumatic therapy.
On 20 August 1992, Dr McGill reported that the applicant’s bone scan demonstrated increased uptake in the left forefoot, due to mild arthritis. The scan was reported as showing degenerative change, but he did not believe it could differentiate this from mild inflammatory arthritis. The abnormality clearly showed Mr Reitano had arthritis, which was sufficient explanation for his symptoms.
Dr McGill reported to Dr Kenneth Au on 22 March 1993. The applicant had returned because of pain in his left forefoot and left wrist. He had transient discomfort in other joints. He had recently been re-evaluated for his possible MS and Dr McGill understood his evoked potentials were normal.
Dr McGill opined that it was very likely the applicant’s discomfort was related to mild arthritis. The prognosis for his joint disease was very good, but Dr McGill expected he would have intermittent discomfort. He had injected the applicant’s left wrist with Celestone and local anaesthetic and, if that provided good relief, would be happy to do the same with his foot. The applicant’s anxiety in relation to his possible MS was likely to be contributing to his symptoms.
Dr McGill reported to Dr Dennis Chow on 28 September 1994. He recorded that in about December 1993, the applicant did some fettling work. This involved considerable bending and lifting. Earlier in 1994, he became aware of right low back pain that became a major problem on 11 April 1994.
The applicant had been off work for one month and returned to light duties. He had been doing some painting and driving but was no longer fettling. He complained of pain in the right low back region, radiating to the right lateral hip and thigh. He did not have paraesthesia or numbness.
Dr McGill opined that the applicant’s ongoing symptoms related to facet joint osteoarthritis. He had responded well in the past to injections of local anaesthetic and steroid, and Dr McGill had injected the right L4/5 facet joint region.
On 8 January 1997, Dr McGill reported to Dr Chow. He noted that the applicant had a recurrence of low back pain after lifting a drum of paint. He had not developed radicular symptoms. He had also had intermittent discomfort in his right groin over the last six months.
Dr McGill opined that the applicant’s low back pain was very likely to be due to facet joint osteoarthritis. He had injected the right L4/5 and L5/S1 facet joint regions. Because of mild impairment of internal rotation of the right hip, he had arranged an x-ray of the applicant’s pelvis. If it showed any abnormality, he would appreciate the chance to review Mr Reitano, but would otherwise be happy to see him as his symptoms required.
On 24 March 1998, Dr McGill reported to Dr Chow that the applicant had returned after about 14 months. He had acute low back pain after bending and lifting a tin of paint. The pain was in the same area as his previous episodes. Dr McGill opined that the applicant’s symptoms were very likely due to irritation of the right lower lumbar facet joints. He once again injected the right L4/5 and L5/S1 facet joint regions.
On 12 November 1998, Dr McGill reported to Dr Au that the applicant had consulted him about left heel pain. There was no discrete injury, but he had been doing his usual work activities, including climbing ladders. Dr McGill diagnosed plantar fasciitis. He injected the applicant’s left heel and advised him to wear shock absorbing footwear at all times.
The applicant again consulted Dr McGill on 31 July 2000, with pains in both feet. Dr McGill opined that his symptoms were due to mild residual plantar fasciitis, mild degenerative change in the joints and soft tissues of the feet, and his weight (about 94 kg). The applicant was trying to lose weight.
Dr McGill reported on 29 October 2004 to Dr Norman Lum. The applicant had presented with pain in his right great toe and right thumb MCP joint. Dr McGill opined that his symptoms sounded typical of degenerative disease. The applicant remained overweight at 89 kg.
Dr McGill noted that x-rays of the applicant’s right hip and right great toe in March 2004 showed definite osteoarthritis of the hip, of moderate severity, and of the MTP (metatarsophalangeal) joint. He had emphasised that the only two interventions that have been shown to benefit the long term progress of osteoarthritis were weight reduction and Glucosamine Sulphate. It was vitally important that the applicant lose weight.
Dr McGill reported on 1 March 2005 to Dr Lum. The applicant was complaining of knee symptoms, worse on the left. He had not had any injury. His weight was 95.5 kg. Dr McGill again opined that the applicant should lose weight. He had made several attempts, with limited success, and Dr McGill believed he needed a “coach”. He had provided information about Bodyline. The applicant should continue to avoid anti-inflammatory medication as much as possible. Surgery had no role.
On 30 June 2005, Dr McGill again reported to Dr Lum. The applicant had a tender spot at the left index PIP (proximal interphalangeal) joint line. He had had very similar tenderness at the medial joint line of the left knee. They were both associated with minor degenerative change in the joint. Weight reduction remained “a challenge”.
Dr McGill reported to Dr Lum on 30 August 2007. The applicant had earlier that month lifted a box of toilet paper over his head, experiencing increased right low back pain. He had remained troubled by throbbing pain on the anterior aspect of the right leg and fluctuating pain in the right groin and buttock.

The applicant’s weight had increased to 97.5 kg. Recent imaging of his right hip and low back demonstrated moderate osteoarthritis of the right hip. There was still reasonable preservation of joint space width, but bullet shaped femoral head and substantial osteophyte formation. Dr McGill could see no evidence of avascular necrosis.
Dr McGill opined that the applicant’s pains probably derived both from his low back and his right hip. The radiation of pain down the right lower limb was suggestive of nerve root irritation, but he could not demonstrate any nerve root dysfunction and the CT scan did not suggest ongoing neural compression.
On 25 October 2007, Dr McGill reported that the applicant had pain in the right hip region, at times radiating to his foot. Both his right hip and low back problems could explain his symptoms and both areas may have been contributing.
Dr McGill opined that there was no reason for the applicant to restrict his activities for fear of doing any harm. If he found that an activity aggravated his pain, it would be sensible for him to avoid it. Neither of his problems was likely to be permanently aggravated by physical activity.
On 30 June 2008, Dr McGill reported that the applicant complained of persistent pain centred on the right groin, with some radiation into the thigh and just below the right knee. He also had some pain over the greater trochanter.
Dr McGill noted that he had previously thought the applicant’s right hip osteoarthritis was likely to be contributing to his symptoms. It had become increasingly clear that the hip joint was the source of his pain.
The applicant was only 52 and his hip symptoms would need to be severe to warrant hip replacement. That situation did not exist yet. The timing of review with Dr McGill would depend on the progress of the symptoms.
The applicant was again reviewed by Dr McGill on 18 November 2009. He continued to have fluctuating joint pains in many areas. Recently, his left knee was quite troublesome. Hip movements were restricted, worse on the right, but that day did not cause pain. The applicant’s weight was 104.3 kg.
Dr McGill opined that the only action that could be taken to reduce the risk of progressive lower limb joint osteoarthritis was weight reduction. He knew this was difficult, “but the ball is in Peter’s court”. His osteoarthritis would progress, but the rate would be influenced by his weight.
On 13 January 2012, Dr McGill reported that the applicant’s osteoarthritic left knee had become progressively more troublesome. His weight had increased to 106.8 kg. Dr McGill opined that weight reduction would have a greater effect on his knee pain and the progression of osteoarthritis in his other lower limb joints than any other non-surgical intervention. If he did not lose weight, then his right knee would quickly follow his left. Weight reduction was very hard to achieve but “there is no point in pretending that other options are as good”.
Dr McGill reported on 21 January 2015 that the applicant’s left knee had remained fairly stable and was not greatly interfering with his activities. In the last few months, his right groin pain had become problematic. He also had pain in the right low back and minor discomfort on the lateral aspect of the hip in the region of the trochanter. He had undergone right rotator cuff repair with quite a good result. His weight was 104 kg.
Dr McGill was confident that the applicant’s right groin pain was derived from his hip joint. He suspected the low right posterior pelvic pain was derived from the low back, on the basis of degenerative disease. He suggested corticosteroid and local anaesthetic injection of the right hip.
On 5 February 2015, Dr McGill reported that the applicant had received an ultrasound guided injection of his right hip on 23 January. His groin pain resolved almost completely, but he still had pain in the region of the greater trochanter and right lower back.
Dr McGill referred to a report of Mr Philip Camden, physiotherapist, which is included with his records. He agreed with Mr Camden that the applicant’s pains could be contributed to by degenerative disease in the low back, gluteal enthesopathy/trochanteric bursitis and hip osteoarthritis. He thought it was safe to conclude that right hip osteoarthritis had been playing a major role but did not think it had reached the stage where the applicant should have a hip replacement.
Dr McGill’s records include a letter dated 6 October 1995, from solicitors who were acting for the applicant. The letter referred to a date of injury of 11 April 1994. It requested details of the injury, including, if appropriate, an estimate of “permanent percentage function of any injured limb or organ and of the person as a whole”.
There is a handwritten annotation, which appears to be in Dr McGill’s handwriting, that “Peter told that my report will not help him 16/11/95”. It appears from Dr McGill’s report dated 28 September 1994 that the date of injury of 11 April 1994 related to the applicant’s low back. The records also include a CT scan of his lumbar spine performed on 4 May 1994.

Professor J.G. McLeod - Royal Prince Alfred Hospital (RPA) and the University of Sydney Institute of Clinical Neurosciences Department of Medicine.

Prof McLeod’s reports are included in Dr McGill’s records.
Prof McLeod reported first on 4 November 1992. He noted that the applicant had occasional light headedness and dizziness, but no other neurological symptoms. Dr McGill had diagnosed a chronic low grade arthritis, which Prof McLeod thought accounted for the pain in the applicant’s foot and thumb.

Prof McLeod concluded that the applicant had no abnormal neurological signs at that time, although his previous history and investigations indicated he had probable MS. From the point of view of the MS, he was doing very well. Prof McLeod had attempted to reassure him that he had a benign form of the disease.

Prof McLeod reported on 11 February 1993 that the applicant had a two to three week history of feeling that his eyes were drooping, a sensation of tiredness and light headedness and a feeling of clumsiness in his left leg. There was some urgency of micturition. Prof McLeod found no objective signs of change. He had arranged for the applicant to be completely reassessed with cranial MRI and evoked potentials.

On 13 May 1993 Prof McLeod reported a history that the applicant had been feeling lightheaded and his left leg had not been feeling normal. He found no abnormality on examination and the investigations were normal. There was no evidence of MS.

Dr Tania Markovic – Endocrinologist (Bodyline Weight Management Clinic)

Dr Markovic reported to Dr Chow on 11 May 2005. She recorded the applicant’s problems as early osteoarthritis of the knees; mild to moderate sleep apnoea; dyslipidaemia [elevated cholesterol]; and fatty liver.
The applicant’s weight had substantially increased in the last decade. In the last 15 years he had been working as a maintenance manager and his job was largely sedentary. Physical activity had been difficult because of his knee pain.
Dr Markovic opined that the applicant had class 2 obesity. His weight was contributing to his knee osteoarthritis, as well as his sleep apnoea and dyslipidaemia. She made recommendations for weight reduction.

Associate Professor James van Gelder – Neurosurgeon

A/Prof van Gelder reported to Railcorp Insurance on 7 December 2007. The date of injury was recorded as 7 August 2007.
A/Prof van Gelder noted that the applicant continued to have back pain and sciatica in a L4 distribution. More recently, he had pain in the right groin and erectile dysfunction. He had been cleared by a urologist. His radicular pain was more disabling.

A/Prof van Gelder agreed that the pain in the applicant’s groin may be from his low back, although there were a number of other potential causes or sites of referred pain. The applicant wanted to continue conservative treatment.

Dr Anthony Bookallil – Consultant Neurosurgeon

Dr Bookallil was qualified by Rail Corporation New South Wales and reported on 4 September 2008.
Dr Bookallil recorded a history of injury to the applicant’s back in 1994, when he was lifting sleepers and inserting pins. He had had back pain on and off since, and some right leg pain. The applicant had a further injury on 2 August 2007, when he lifted a box of toilet paper and had pain over the medial aspect of his right leg. This was different to the pain he had experienced previously.

Over the past 12 months, the applicant had had intermittent pain in the right groin, and over the medial right thigh, radiating to the front of the calf.

Dr Bookallil noted that investigations revealed degenerative disease in the discs of the applicant’s lumbar spine, but no evidence of disc protrusion. He was likely to have ongoing symptoms and needed to take care lifting, carrying and bending. He did not require surgery. His symptoms were work-related.

Dr Bookallil again reported on 19 March 2009, when he assessed the applicant with 5% impairment of his back and 5% loss of efficient use of his right leg, following injury in August 2007. Half was related to the 2007 incident and half to the 1994 incident.

Dr Grahame Mahony – Orthopaedic Surgeon

Dr Mahony was qualified by the applicant’s former solicitors and reported on 28 October 2008.

Dr Mahony recorded a history of injuries in 1994 and August 2007. The applicant’s symptoms were in his low back and right groin, radiating to his right foot.

Dr Mahony diagnosed low lumbar back strain associated with degenerate changes, and there was evidence of discogenic lesions at L3/4, L4/5 and lumbosacral levels, with nerve root irritation affecting the lower limbs. There were also symptoms referable to early degenerate changes in his right hip. Dr Mahony assessed 13% WPI as a result of injury to the lumbar spine.

Professor Warwick Bruce – Orthopaedic Surgeon

Prof Bruce has been the applicant’s treating surgeon for many years.

Prof Bruce reported on 15 February 2010 that the applicant had injured his left knee on 4 February 2010. The diagnosis was mild medial compartment arthritis with some mild symptoms, and a recently torn medial meniscus. Prof Bruce had recommended arthroscopy. The applicant was obese, and it was very important that he lose weight, “or he will head smartly for total knee replacement”.

Prof Bruce performed the left knee arthroscopy on 25 March 2010. He noted that the applicant’s knee would deteriorate and he would require replacement in the future.

Prof Bruce reviewed the applicant on 2 August 2010. He had lost 6 kg but put it all back on. Prof Bruce opined that he must lose a significant amount of weight.

Prof Bruce continued to review the applicant with respect to his left knee injury and continued to recommend weight loss.
On 6 February 2017, Prof Bruce reported to Dr Norman Lum, who had referred the applicant with pain in his right hip. The diagnosis was moderate to severe arthritis.
Prof Bruce recorded that the applicant’s right hip had been “playing up over the years”. He had had groin pain occasionally for a period, but recently had a very severe attack of pain. A cortisone injection had helped significantly.
Prof Bruce opined that joint replacement was not warranted at that stage. It is a “quality of life operation” and the decision is the patient’s, when the pain and disability are severe. The applicant needed to lose a lot of weight.
Prof Bruce again saw the applicant on 4 October 2017. He had three “big problems”, the main one being his knees, worse on the left. He had also had a shoulder reconstruction and had severe arthritis of the right hip, which may be due to his heavy labour
Prof Bruce again opined that the applicant must lose weight. He would come to total left knee replacement unless he could get well below 90 kg. His right hip would come to replacement. His right knee had “a long way to go before it will need anything”.
On 18 January 2018, Prof Bruce responded to a request for information from Transport for NSW.
Prof Bruce did not consider employment to be the main contributing factor to the applicant’s hip arthritis. However, it was one of the contributing factors, as well as his weight. One of the risk factors for the development of osteoarthritis of the hip was heavy manual labour.
Prof Bruce opined that the applicant’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of his hip, but his weight had to be included, although it was more of an issue with his knee. “Therefore my answer is that employment is the main contributing factor to the aggravation”.
On 30 April 2018, Prof Bruce reported to Dr Lum that the applicant was very depressed. His right hip was the worst joint at that stage, and his left knee was worse than his right. He had put on a lot of weight, “which is not good”. Prof Bruce wanted him to try and lose weight and opined that he must see the psychologist.
On 13 August 2018 Prof Bruce reported that the applicant’s left knee was worse than his right hip. He had lost weight but was still about 110 kg. His depression was improving. He had done a heavy job during his life, and his left knee problem was overloading his right hip, and therefore the left knee arthritis and work practices had caused the osteoarthritis of the right hip. His weight was also an issue in the arthritis.
On 1 July 2019, Prof Bruce reported that both the applicant’s right hip and left knee were worrying him significantly “but at this time it is the right hip”. He had put on weight and was 112 kg minimum. His right hip was arthritic and would come to replacement. The applicant wanted an injection in his right hip, which he had had in the past, and Prof Bruce referred him for this.
On 12 August 2019, Prof Bruce reported that the injection on 11 July 2019 had relieved almost all the applicant’s pain “up until now”. This proved that most of the pain was coming from the hip. Both the right hip and left knee were heading for replacement. The applicant had put on weight. Prof Bruce proposed to send him to Dr Paul Mason, an expert with weight loss.
On 27 March 2020, Prof Bruce reported to Dr Lum that the applicant was ready to go ahead with right total hip replacement. “In these times of uncertainty” they would not be operating in the next few months.
On 20 July 2020, Prof Bruce reported that the applicant’s right hip was worrying him significantly. His left hip was also wearing and x-rays showed mild to moderate osteoarthritis. His right hip pain was still worse than the left.
Non-operative measures were no longer acceptable to the applicant. Prof Bruce told him if he lost 20 kg, he would have very little hip pain, but that was unlikely to occur.
The problem was that the applicant was relatively young and heavy, and any [replacement] hip may wear out in his lifetime. The proposed procedure had been discussed with him.

On 1 September 2020 Prof Bruce reported to the applicant’s solicitors. He referred to the history of his treatment of the applicant, including both his left knee and his right hip.

Prof Bruce opined that the applicant had severe osteoarthritis of the right hip. Heavy manual labour can cause this on its own. He listed the risk factors. He also noted that recent data had shown that men and women with elevated BMI [body mass index] are two or three times at greater risk for primary osteoarthritis leading to total hip replacement. Both men and women had the same increased risk factor for the development of osteoarthritis when they did strenuous work.
Prof Bruce opined that having an injury to the right [sic] knee causes the patient to limp and can also overload the hip or make it more symptomatic. He thought the arthritis of the applicant’s right hip was mainly due to the fact that he had done heavy manual labour and a mild to moderate amount of overload due to limping on the right [sic] knee.

Dr Paul Miniter – Orthopaedic Surgeon

Dr Miniter reported to Rail Corporation New South Wales on 5 April 2011.

Dr Miniter’s report was mainly concerned with the injury to the applicant’s left knee. However, he noted that Mr Reitano was likely to have early osteoarthritis of the right hip, or perhaps an impingement lesion. This would need further investigation, “but not at this stage”.

Dr Richard Powell – Orthopaedic Surgeon

Dr Powell was qualified by the respondent and reported first on 1 December 2017.

Dr Powell recorded a history of injuries to the lumbar spine, left knee, right shoulder and right hip. The right hip symptoms developed gradually with no specific precipitating incident. The applicant had been told he would eventually require a total hip replacement.

As regards the applicant’s right hip, Dr Powell diagnosed bilateral hip osteoarthritis, more marked on the right, demonstrated on x-ray, without any specific work-related injury. The applicant had advanced degenerative changes in both the right hip and left knee and would ultimately require arthroplasty. Ideally, this should be deferred for as long as possible.

Dr Powell opined that the applicant was suffering from a disease process involving his right shoulder, lower back, right hip and left knee. There was sufficient evidence to conclude that the nature and conditions of his employment and the specific incidents involving his right shoulder, lower back and left knee would be considered the main contributing factors in the development and/or aggravation of the disease process.

In the case of the bilateral hip osteoarthritis, Dr Powell opined that it was more likely to be constitutional and he did not believe there was evidence that employment represented the main contributing factor in the development or aggravation of the condition.

On 21 September 2020, Dr Powell provided a further report, having re-examined the applicant. He noted that Prof Bruce had indicated the applicant would require a total hip replacement, although it had been deferred while Mr Reitano addressed some mental health issues and attempted to improve his overall fitness and decrease his weight.

The diagnosis with respect to the applicant’s hips was again bilateral hip osteoarthritis, more marked on the right. Prof Bruce had indicated the applicant would require right total hip replacement and left total knee replacement, which was entirely appropriate for the management of his advanced osteoarthritic change in the relevant joints.

Dr Powell’s opinion as to the relationship of the applicant’s condition to his employment remained unchanged. He considered the bilateral hip osteoarthritis to be constitutional in nature, forming part of a primary osteoarthritic process, and did not believe there was sufficient evidence to conclude that employment represented the main contributing factor in that process.

Dr Powell believed the surgery proposed by Prof Bruce would be considered reasonably necessary treatment for the management of Mr Reitano’s advanced osteoarthritis. He opined that it was not required on the basis of injury sustained in the course of employment. The degenerative pathology in the applicant’s right hip was multifactorial in nature. Dr Powell did not believe there was sufficient evidence to conclude that employment represented the main contributing factor in either the development or permanent aggravation of the underlying degenerative disease process.

Finally, Dr Powell reported on 16 August 2021. He had reviewed reports of Prof Bruce and Dr Poplawski, and the applicant’s statement.
Dr Powell’s opinion had not altered. He reaffirmed that the applicant was suffering from a primary generalised osteoarthritic process. The treatment undertaken by Prof Bruce, specifically in relation to the right hip, was entirely appropriate, although Dr Powell did not believe it was required on the basis of injury sustained in the course of employment.

Associate Professor Roger C Chen – Endocrinologist

A/Prof Chen reported to Dr Lum on 25 August 2020.

A/Prof Chen reported that workup demonstrated no clear cause for osteoporosis. The applicant had had a left partial meniscus tear 10 years ago. There was a significant discrepancy between the bone density of the left and right hip, which may possibly be due to him favouring the use of his right leg.
A/Prof Chen reported on 8 September 2020 that the osteoporosis “screen” showed no abnormality.

Dr Zbigniew Poplawski – Orthopaedic Surgeon

Dr Poplawski was qualified by the applicant and reported first on 21 October 2020.

Dr Poplawski recorded a history that the applicant’s work had been very physical, involving maintenance work with considerable bending and lifting, and activities requiring twisting of his spine, squatting and kneeling. He noted the development of lower back pain and injury to the left knee. He recorded that the applicant developed pain in his right hip while recovering from his knee injury and subsequent surgery, when he noted an abnormal gait.

The applicant’s hip pain progressively increased, and he was referred to Prof Bruce in July 2017. His symptoms had increased to the point that he had been advised he required total hip replacement.
Dr Poplawski opined that the applicant had developed cumulative injury to his lower back, right shoulder, right hip and left knee as a result of work-related activities in the employ of the respondent, with the deemed date of injury being 2012 [sic]. Relevantly, the diagnosis was osteoarthritis of both hips, with consequential aggravation of symptoms in the right hip.

As regards the applicant’s right hip, Dr Poplawski reported that he developed pain in about 2013, at which time he had marked constitutional degenerative changes in the joint. However, as a result of altered ambulation following his left knee problem and his continuing work activities, it was more likely than not that the condition was aggravated as a result. Dr Poplawski assessed the problem as 75% due to constitutional changes and 25% and/or aggravation of work activities. Right total hip replacement was reasonably necessary as a consequence of his condition.

Dr Poplawski again reported on 12 May 2021.

Dr Poplawski, “to recapitulate” recorded that the applicant developed pain in his left knee in 2012, after prolonged kneeling on railway tracks. He underwent arthroscopic surgery, with resection of a torn meniscal fragment, in about June 2012, performed by Prof Bruce. He had remained with ongoing pain and limited range of motion in his left knee since.
Dr Poplawski recorded that, during the period of recovery from his knee injury and surgery, the applicant developed pain in his right hip, which he attributed to overuse of his right leg, attempting to protect his left knee. The hip pain progressively increased and in July 2017 he was again referred to Prof Bruce.

Dr Poplawski also recorded that the applicant underwent arthroscopy of his right knee, performed by Dr Tan, on 13 February 2002. His left knee was initially less troublesome, but he came to arthroscopy on the left in May 2015 [sic]. He had no significant symptoms related to his right hip prior to those he developed secondary to his left knee problems.
Dr Poplawski opined that the general nature of the work Mr Reitano carried out, and the extra stress his right hip was subjected to because of problems in his left knee, resulted in increased symptoms of pain and limitation of movement in his right hip. The symptoms had been precipitated by the type of work he was required to carry out, resulting in the need for hip replacement surgery at an earlier stage than he would otherwise have required. The problem of pain and limitation of movement in his right hip were attributable to constitutional degenerative changes at a level of 75% and to aggravation by work activities at a level of 25%.

Dr Poplawski finally opined that, although the degenerative changes were constitutional and pre-existing, they were essentially asymptomatic until the above stressors precipitated increasing symptoms, thereby making work a material contribution to the need for the proposed surgery at an earlier time.

Dr Harry Patapanian – Consultant Rheumatologist and Physician

Dr Patapanian reported to Dr Lum on 24 November 2020. He noted that the applicant had widespread osteoarthritis and painful restriction of his wrists, hips and knees. He reported no other specific symptoms to suggest a discrete underlying connective tissue disorder. There was “a rather sketchy and uncertain history of osteoporosis”. The applicant did not seem to have many risks for this.
Dr Patapanian reported that the applicant’s imaging showed femoral acetabular impingement bilaterally, with significant hip joint osteoarthritis and bilateral knee osteoarthritis, more notable on the left.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant submitted that while the Application refers to “nature and conditions”, all the doctors refer to the aggravation of a disease process, and he relied on a deemed date of injury.

The applicant submitted that there is a discrete issue, and the contest comes down to weighing the opinions of Prof Bruce and Dr Poplawski and the somewhat equivocal opinion of Dr Powell.
The applicant submitted that there is factually no dispute about the nature of his work, which had the potential to contribute to the development or aggravation of a degenerative condition. There is no dispute about his left knee injury, which has been accepted by the respondent. He referred to Dr Powell’s evidence that he had a limp with a shortened stance phase on the left side, reflecting his knee pathology. He submitted this was eight years after the injury, and attributable to the injury.
The applicant referred to his own evidence. He submitted he had had a developing condition, but it had been quiescent. The right side had become particularly symptomatic, and he now requires surgery.
The applicant submitted that Prof Bruce has been treating him for 20 years, and there is force in his evidence. He referred to Prof Bruce’s report dated 1 September 2020 and submitted I could infer there is a typographical error in the reference to the right knee, and that it is the left knee. Dr Poplawski obtained a consistent history of the increased symptoms and the applicant attributed them to his abnormal gait.
The applicant submitted that there is no issue as to the appropriateness of the surgery. The issue is whether the necessity for the surgery is related to workplace factors. He submitted that Dr Powell accepted that employment was the main contributing factor to the development or aggravation of the disease process in his right shoulder, lower back and left knee, but did not explain why he did not attribute his hip injury to the nature and conditions of employment. His opinion is equivocal, as he has used the words “more likely” to be constitutional, which leaves open the possibility it was not. He has not dealt with the applicant’s limp.
The applicant relied on the decision in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), submitting that I would be more than comfortably satisfied that there is evidence to determine that employment made a material contribution to the need for surgery.
In reply to the respondent, the applicant submitted that it had been open to the respondent to approach Dr McGill or Prof Bruce for a report. The role of a rheumatologist is to manage the condition. It has reached the end stage, which is why he went to a surgeon.
The applicant submitted that the respondent sought to distract me from the relatively basic analysis of the equivocal opinion of Dr Powell versus those of Prof Bruce and Dr Poplawski. He referred to the decision in EMI (Aust) Ltd v Bes [1970] 2 NSWR 238.

Respondent

The respondent submitted that Prof Bruce and Dr Poplawski did not have all the evidence that I have, or that Dr Powell had, to establish injury to the right hip directed at nature and conditions, or as a consequential condition resulting from injury to the left knee.
The applicant had submitted that Prof Bruce should be accepted, as he has been the treating doctor for many years, but a doctor “is only as good as the history”: Hancock vEast Coast Timber Pty Ltd [2011] NSWCA 11. Dr McGill has been treating the applicant for 30 years, and the applicant has placed no reliance on his evidence, which painted a different picture.
The respondent submitted that the either the applicant did not obtain a report from Dr McGill, or his evidence did not assist, and a Jones v Dunkel inference could be drawn (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). It was astounding that Prof Bruce did not have Dr McGill’s reports, especially when giving a medicolegal opinion on causation.
The respondent referred to Dr McGill’s evidence, including the notation that his evidence would not help the applicant. The applicant had a widespread arthritic condition, which was combined with his ongoing weight and body mass issues. The respondent conceded that the surgery was reasonably necessary, but the applicant’s weight issues go to the question of injury and whether Prof Bruce will perform it.

The respondent submitted that the applicant’s medical evidence does not suggest that his left knee has anything to do with his right hip. Dr Poplawski did not have the full history. The connection with the left knee is his invention. He did not say there had been any acceleration of pathology, but that the symptoms were brought forward. That was based on a history that the applicant had no right hip problems before his left knee injury, which is wrong. The respondent submitted that his opinion was an ipse dixit.
The respondent submitted that, even if I were to find that the symptoms in the applicant’s right hip had been aggravated, that “does not get over the line”. The applicant must show that it made a material contribution to the need for surgery. Given the longstanding problems with both hips, worse on the right, he cannot do that. There is no explanation from Dr Poplawski as to why the aggravation has suddenly brought about the need for a total hip replacement, because he did not have Dr McGill’s reports.
The respondent submitted that the applicant’s claim is confined to the nature and conditions of his employment or consequential condition. He has made the bland assertion that because he performed heavy work, he has injured his right hip. The respondent referred to Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47.
The respondent submitted that Prof Bruce was in the same position as Dr Poplawski. He has treated the applicant for many years, but it does not appear that he had regard to the history contained in Dr McGill’s evidence. He has made it clear he does not believe the applicant’s employment caused his arthritic issues. He has said heavy manual labour can cause osteoarthritis. He referred to the applicant’s right knee, and not to his left.
The respondent submitted that, if there is a consequential condition, I must feel persuaded that it has resulted in the right hip condition. The causal link does not stand when analysed in light of all the evidence. The evidence does not point to either nature and conditions or consequential condition, which, even if established, did not make a material contribution to the need for surgery.
The respondent submitted that Dr Powell is in as good as position as anyone to express an opinion. He has seen the applicant since 2017, has had all the material that is before me, went through all the body parts, and came to the conclusion that the right hip was not a work injury.
As regards “main contributing factor”, the respondent submitted that I would look at the applicant’s weight and underlying condition. It referred to the decision in AV v AW [2020] NSWWCCPD 9. It referred to the evidence of Drs van Gelder and Bookallil. It submitted that the nature and conditions of employment had not aggravated the applicant’s pathology. Even if his symptoms were aggravated, there is no contemporaneous evidence that it was due to work. He has the same issues, to a lesser extent, in his left hip.
The respondent submitted that Prof Bruce did not consider employment was the main contributing factor to the applicant’s hip arthritis. He has described it as a substantial contributing factor and the main contributing factor to the aggravation. This is a confused thesis.

SUMMARY

Mr Reitano claims to have sustained injury to his right hip as a result of the nature and conditions of his employment, and/or that he has developed a consequential condition of his right hip as a result of an accepted injury to his left knee. His counsel confirmed in submissions that while the Application refers to “nature and conditions”, the medical evidence refers to the aggravation of a disease process, and he relies on the deemed date of injury of 3 July 2017.
The applicant claims the cost of right total hip replacement surgery. The respondent does not dispute that the proposed surgery is appropriate treatment for the applicant’s condition.
The applicant has given evidence about his work activities. He commenced work as a fettler, and later became an asset maintainer. His evidence is that his work, particularly as a fettler, involved him walking over uneven ground, climbing ladders at least 100 times a day, kneeling for lengthy periods, bending, lifting, twisting and turning. That evidence is uncontested, apart from Dr Markovic having recorded that his work was largely sedentary. That does not appear to be the case and I accept the applicant’s evidence regarding the nature of his duties.

The applicant has longstanding osteoarthritis, for which he came under the care of Dr McGill in 1992. He was also diagnosed with MS, although Prof McLeod found no evidence of it in May 1993, and had previously reported that it was a benign form of the disease.
Mr Reitano has sustained an injury to his left knee, which he stated occurred in 2012, but Prof Bruce has reported occurred in February 2010. Prof Bruce performed a left knee arthroscopy on 25 March 2010. He has foreshadowed that the applicant will require a left total knee replacement.

There is a long history of symptoms in the applicant’s right hip. Dr McGill opined in June 2008 that it was clear that osteoarthritis in the hip joint, and not his low back problem, was the source of pain in his hip.

To establish injury pursuant to section 4(b)(ii) of the 1987 Act, the applicant must establish that his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, in this case the underlying osteoarthritis of his right hip. I will refer for convenience to aggravation.
In respect of his claim to have sustained a consequential condition of his right hip as a result of the injury to his left knee, the applicant need not establish that he has sustained injury arising out of or in the course of his employment, or that employment was a substantial contributing factor to any injury – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and the cases discussed therein. The issue is one of causation.
Prof Bruce has treated the applicant since at least 2010, and it is he who proposes to perform the surgery. I accept that he is well-placed to provide an opinion as to injury and the reasonable necessity of the surgery, the appropriateness of which is not in any event in issue.
I do not believe that the value of Prof Bruce’s evidence is diminished by the fact that he did not have access to Dr McGill’s reports. He was obviously aware of the applicant’s longstanding problems with his right hip and his osteoarthritic condition. He recorded that the applicant’s right hip was “playing up over the years”. He referred in his report dated 1 September 2020 to x-rays of the right hip showing severe osteoarthritis, and mild osteoarthritis of the left hip. MRI scan of the right hip showed osteoarthritis. The applicant had osteoarthritis in his left knee before the surgery was performed. He also had osteoarthritis in his right knee.

Prof Bruce has opined that heavy manual labour alone can cause osteoarthritis of the hip. He reported as early as 2017 that the applicant had severe arthritis of his right hip, which may be due to his heavy labour. This report was not a medicolegal report or prepared in respect of a request for approval of surgery to the right hip, although its eventual replacement was foreshadowed.
Prof Bruce’s report to Transport for NSW dated 18 January 2018 appears somewhat contradictory. He opined that the applicant’s employment was not the main contributing factor to his right hip arthritis, but it is clear that he was referring to the contraction of the disease. He went on to say that the applicant’s employment was a substantial contributing factor to the aggravation of his hip. His weight had to be included, but it was more of an issue with his knee. Therefore, he opined that employment was the main contributing factor to the aggravation.
This report must be read with Prof Bruce’s other evidence. He opined in a report dated 13 August 2018 that the applicant had done a heavy job during his life, and his left knee problem was overloading his right hip. Therefore, the left knee arthritis and work practices had caused the osteoarthritis of his right hip. His weight was also an issue. Once again, this was not a medicolegal report, but a report to the applicant’s GP.
Prof Bruce accepted that the applicant’s employment had aggravated the disease condition of his right hip. He has listed several risk factors for the development of osteoarthritis of the hip, and they include heavy manual labour as an occupation, increasing age and elevated BMI. It is clear from the medical evidence that Mr Reitano is now and has been overweight for many years. He has struggled to lose weight, without a great deal of success.
In his report to the applicant’s solicitors dated 1 September 2020, Prof Bruce opined that having an injury to the right knee causes a patient to limp and can overload the hip and make it more symptomatic. He thought the applicant’s right hip arthritis was mainly due to heavy manual labour and a mild to moderate amount of overload due to limping. When this report is read with the evidence as a whole, including that of the applicant, I accept that the reference to the right knee was an error. The applicant has undergone surgery to his left knee, Prof Bruce has opined that he will require a left knee replacement, and his other reports refer to the left knee.
I have found Dr Poplawski’s evidence of less assistance. He supported the proposition that the nature of the applicant’s work, and the additional stress on his right hip due to problems with his left knee, resulted in increased symptoms in his hip. He has erroneously recorded that the applicant developed pain in his right hip while he was recovering from the injury and subsequent surgery to his left knee. In fact, the symptoms in his hip were recorded well before this occurred.
Dr Poplawski also opined that the problem of pain and limitation in the applicant’s right hip are attributable to constitutional degenerative changes (75%) and aggravation by his work activities (25%). That does not support employment as being the main contributing factor to aggravation of the disease. However, reading his reports as a whole, his opinion is that the applicant developed a consequential condition of his right hip as a result of the injury to his left knee. Prof Bruce agreed with that conclusion, and he did have an accurate history of the applicant’s right hip problems.
Dr Powell opined that the nature and conditions of the applicant’s employment and the specific injuries to his right shoulder, lower back and left knee would be considered the main contributing factors to the development and/or aggravation of his disease process. He regarded it as “more likely” that the applicant’s right hip osteoarthritis was constitutional and did not believe there was evidence that employment was the main contributing factor to the development or aggravation of the condition. He has not explained why he has excepted the applicant’s right hip. I assume it may be because Mr Reitano had also sustained frank injuries to his right shoulder, lower back and left knee, given the reference to the incidents as well as the nature and conditions of his employment.

Dr Powell has not provided an opinion on whether the applicant developed a consequential condition of his right hip as a result of the injury to his left knee. He recorded that the applicant had a limp with a shortened stance phase on the left.
I have not given any weight to what I assume to be Dr McGill’s opinion, written on the letter from the applicant’s former solicitors. The date of injury on the letter appears to be the date on which the applicant injured his back. The letter requested an assessment of permanent impairment. Dr McGill may have been referring to the applicant’s back injury. He may not have believed the applicant had any permanent impairment as a result of that injury, so his evidence would not help. It is simply not possible to know.
I have similarly drawn no adverse inference from the fact that the applicant did not rely on evidence from Dr McGill. This is a claim for the cost of surgery. As the applicant submitted, his condition has reached the end stage. Dr McGill’s role was to manage his condition, but it is now at the point where surgical management is required. As I have noted, Prof Bruce was aware of the applicant’s long history of osteoarthritis.
Having considered the evidence, I am satisfied that the applicant has sustained injury to his right hip arising out of or in the course of his employment with the respondent. The injury is due to both the aggravation of a disease, to which employment was the main contributing factor, pursuant to section 4(b)(ii) of the 1987 Act and a consequential condition as a result of injury to his left knee. The deemed date of injury is 3 July 2017.

It is not disputed that the proposed surgery is appropriate medical treatment. Dr Powell, while not accepting that the applicant had a work-related injury, opined that the surgery was entirely appropriate and would be considered reasonably necessary treatment for his advanced arthritis.
As was determined in Murphy, a condition can have multiple causes, as I have found in this case. The applicant’s work injury does not have to be the only, or even a substantial, cause of the need for treatment, before its cost is recoverable pursuant to section 60 of the 1987 Act. The applicant need only establish that the treatment is reasonably necessary as a result of the injury. The test of causation is the “common sense” test applied in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796. Mr Reitano has to establish that the injury materially contributed to the need for surgery.
I am satisfied that the applicant’s injury has materially contributed to the need for the proposed surgery. I accept the evidence of Prof Bruce, in particular as the treating surgeon, and Dr Poplawski in this regard, and I prefer it over Dr Powell’s evidence. The applicant’s underlying condition and his weight may also contribute to the need for surgery, but the aggravation of the disease by his work for the respondent and his consequential condition as a result of the injury to his left knee have made a material contribution. That is all he must establish to succeed in his claim.
I determine that the applicant has sustained injury to his right hip arising out of or in the course of his employment with the respondent. The injury is due to both the aggravation of a disease, to which employment was the main contributing factor, pursuant to section 4(b)(ii) of the 1987 Act, and a consequential condition as a result of injury to his left knee.
I further determine that the treatment proposed by Prof Bruce is reasonably necessary as a result of injury sustained by the applicant on 3 July 2017, arising out of or in the course of his employment with the respondent.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 414

15 October 2021