Rezaie v Universal Property Group Pty Ltd
[2021] NSWPIC 416
•18 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rezaie v Universal Property Group Pty Ltd [2021] NSWPIC 416 |
| APPLICANT: | Habibullah Rezaie |
| RESPONDENT: | Universal Property Group Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 18 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation, incurred section 60 of the Workers Compensation Act 1987 (1987 Act) expenses and lump sum compensation; injury to left knee when heavy gyprock fell on the applicant’s left leg accepted; whether left hip, right knee and back injured in same event; whether consequential conditions at left hip and back; lack of contemporaneous evidence of injury; Department of Education and Training v Ireland considered; explanation for delayed onset and reporting of symptoms provided by applicant’s doctors; consistent reports of antalgic gait and symptoms in left leg despite radiological evidence of pathology in knee resolving; Held - applicant sustained injury to left hip and consequential lumbar spine condition; awards for the respondent in respect of other alleged injuries and consequential condition; section 66 of the 1987 Act claim remitted to President for referral to a Medical Assessor; general order for section 60 of the 1987 Act expenses; consideration of weekly compensation claim deferred until receipt of Medical Assessment Certificate. |
| DETERMINATIONS MADE: | 1. Award for the respondent with respect to the allegation of injury to the lumbar spine. 2. Award for the respondent with respect to the allegation of injury to the right knee. 3. Award for the respondent with respect to the allegation of a consequential left hip condition. 4. The applicant sustained an injury to the left hip pursuant to ss 4(a), 4(b)(ii) and 9A of the Workers Compensation Act 1987 on 1 August 2018. 5. The applicant sustained a consequential condition affecting the lumbar spine as a result of the injury on 1 August 2018. 6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 1 August 2018 7. The materials to be referred to the Medical Assessor are to include the Application to Resolve a dispute and all attachments, the Reply and all attachments, the documents attached to the Application to Admit Late Documents lodged by the applicant on 23 July 2021 and the documents attached to the Application to Admit Late Documents lodged by the respondent on 4 August 2021. 8. Leave granted to the respondent pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 to dispute liability in respect of the alleged secondary psychological condition. 9. Consideration of the claim of a secondary psychological condition and the claim for weekly compensation to be deferred until receipt of the Medical Assessment Certificate. 10. The matter to be listed for further teleconference upon receipt of the Medical Assessment Certificate. 11. The respondent to pay the applicant’s reasonably necessary incurred s 60 expenses in respect of the left knee and left hip injury and consequential lumbar condition upon production of accounts, receipts and/or valid Medicare notice of charge. |
STATEMENT OF REASONS
BACKGROUND
Mr Habibullah Rezaie (the applicant) was employed by Universal Property Group Pty Ltd (the respondent) as a labourer. On 1 August 2018, the applicant was lifting up gyprock sheets when one suddenly slipped and landed heavily on the applicant’s left knee.
An injury to the applicant’s left knee was accepted by the respondent’s insurer.
On 27 September 2019, the applicant’s orthopaedic surgeon, Dr Ali Gursel, requested approval for treatment to the applicant’s left hip. Liability for a consequential left hip condition was disputed in a notice issued pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2019. Liability for ongoing weekly compensation in relation to the left knee injury was disputed in the same notice.
A request for internal review pursuant to s 287A of the 1998 Act was made on 28 July 2020. Accompanying the request was a medicolegal report from Dr Mohammed Assem, dated 29 June 2020, in which it was asserted that the left hip was injured in the original event on 1 August 2020. It was further alleged that the applicant had sustained a consequential lumbar condition as a result of the left knee injury.
A claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based upon Dr Assem’s assessment of 20% whole person impairment (WPI) was also made on 28 July 2020.
A further dispute notice was issued on 12 August 2020 in which it was determined that the allegation of a left hip injury and consequential lumbar spine condition were outside the scope of the internal review. The insurer maintained the decisions to dispute liability for a consequential left hip condition and to pay weekly compensation in respect of the left knee injury.
The claim for lump sum compensation was dealt with in dispute notice issued on 22 September 2020. It was determined in that notice that the accepted left knee injury did not result in a degree of permanent impairment greater than 10% for the purposes of s 66(1) of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 27 May 2021. The applicant seeks weekly compensation on an ongoing basis from 25 March 2020, incurred s 60 expenses and lump sum compensation based upon the assessment by Dr Assem.
The injury described in the ARD was an injury on 1 August 2018 to the applicant’s left knee with consequential left hip and lumbar spine conditions. In the alternative, the applicant relied upon an injury on 1 August 2018 to the bilateral knees, lumbar spine and left hip. A secondary psychological condition was also pleaded.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 2 August 2021 by teleconference. The applicant was represented by Mr William Carney of counsel, instructed by Ms Clemance Semaan. The respondent was represented by Mr Simon McMahon of counsel, instructed by Mr David Cooper. A representative from the insurer was also present.
Despite an extended conciliation conference, the parties were unable to reach an agreed resolution of the dispute. Submissions were heard in respect of an application for leave to admit as a late document a supplementary report from the respondent’s independent medical examiner, Dr John Bentivoglio, pursuant to r 67(4) of the Personal Injury Commission Rules 2021.
An application by the respondent for leave pursuant to s 289A(4) of the 1998 Act to rely on a dispute as to whether the applicant sustained an injury to the right knee, left hip and/or lumbar spine in the injurious event on 1 August 2018 was also heard.
Leave was granted to the respondent in respect of both applications.
As there remained insufficient time in which to complete oral submissions on the substantive issues in dispute, a direction for written submissions was made.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether leave should be granted to the respondent pursuant to s 289A(4) of the 1998 Act to dispute a secondary psychological condition;
(b) if so, whether the applicant has sustained a secondary psychological condition;
(c) whether the applicant has sustained an injury or consequential condition to the lumbar spine;
(d) whether the applicant has sustained an injury or consequential condition to the left hip;
(e) whether the applicant has sustained an injury to the right knee;
(f) the extent and quantification of any incapacity resulting from the injury on 1 August 2018, including the ongoing effects of the left knee injury;
(g) the entitlement to s 60 expenses claimed, and
(h) the degree of permanent impairment resulting from the injury on 1 August 2018.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 23 July 2021;
(d) supplementary report of Dr John Bentivoglio, dated 3 August 2021;
(e) written submissions lodged by the applicant on 23 August 2021, and
(f) written submissions lodged by the respondent on 6 September 2021.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 23 September 2020 and 10 February 2021. Incomplete copies of the applicant’s written statements were lodged with the ARD. Pursuant to a direction issued at the teleconference, complete copies of those statements were subsequently served and lodged and are admitted in these proceedings.
In his first statement, the applicant stated that on 1 August 2018, he was required to move a number of gyprock sheets. As the applicant lifted up the sheets, they suddenly slipped from his arms and landed heavily on his left knee. The applicant felt as though his left knee had dislocated and he suffered an immediate onset of severe pain in the left knee.
As the day went on, the applicant’s pain increased. The applicant reported the injury to his supervisor and attended Plumpton Medical Centre, where he consulted Dr Indira Datt. Dr Datt certified the applicant as unfit for work and referred him for an x-ray and ultrasound. Upon receiving the results, Dr Datt referred the applicant to orthopaedic surgeon, Dr Ke Huang.
The applicant saw Dr Huang on 20 August 2018. Dr Huang recommended an MRI and referred the applicant to a physiotherapist to fit a brace to the left knee. Upon reviewing the MRI, Dr Huang advised the applicant to utilise crutches and recommended a further x-ray.
Over the next few weeks, the pain in the applicant’s left knee persisted and he relied on crutches to walk. The applicant developed a significant limp and felt as though his body was misaligned whilst walking.
On 16 October 2018, Dr Huang recommended the applicant continue physiotherapy and hydrotherapy.
The applicant stated:
“Soon after the incident, I noticed an aching pain develop in my left hip and lower back. The pain in my left hip was particularly prominent when I was required to walk for longer than five minutes or stand for an extended period. The pain in my lower back radiated into my buttocks and, on occasion, down into my legs. Although I was experiencing pain, I was unaware that this was relating to my incident. Dr Ali Gursel advised me of my hip injury 6 months following my incident.”
Despite continuing physiotherapy with Mr Peter Dong, the altered gait persisted and the applicant continued to suffer left knee, left hip and lower back pain. Due to the applicant’s persisting symptoms, the applicant was referred to orthopaedic surgeon, Dr Ali Gursel for a second opinion.
The applicant consulted Dr Gursel for the first time on 8 February 2019. Dr Gursel recommended an injection to the applicant’s left knee, which was performed on 27 February 2019. The applicant received two further injections to the left knee, following which, he noticed a slight improvement to the pain in his left knee. The benefits soon wore off and the left knee pain gradually increased.
The applicant was referred to a new physiotherapist, Mr Hicks, however, the pain in the applicant’s left knee, left hip and lower back remained.
On 31 May 2019, Dr Gursel referred the applicant for a further MRI.
The applicant reported increasing symptoms at his left hip. On 27 September 2019, Dr Gursel arranged a cortisone injection to the left hip.
In October 2019, the applicant commenced exercise physiology sessions with Mr Felix Yau. Despite undergoing 24 sessions, the applicant did not appreciate any improvement to the pain in his left knee, left hip or lower back. The applicant received no benefit from a session of hydrotherapy either.
The applicant was notified that his weekly compensation would cease on 20 December 2019. The applicant felt devastated and hopeless. The applicant was overwhelmed with stress about his ability to provide for his family.
On 1 May 2020, the applicant received a CT guided steroid injection to his left hip which he paid for himself. The applicant felt his symptoms immediately reduce but the relief was only temporary.
The applicant’s current treatment involved consultations on a monthly basis with Dr Datt, pain medication and avoiding movements which aggravated his symptoms. The applicant ceased physiotherapy and hydrotherapy.
The applicant said he had continued to be certified as having partial capacity for work, seven hours per day five days per week with no capacity for pulling, pushing, bending, twisting, squatting, performing overhead activities or lifting objects over 2 kg. The applicant had been unable to work since 25 March 2020 as suitable duties were withdrawn.
In his supplementary statement, the applicant stated that his work for the respondent was heavy, physical work, which involved being on his feet all day, moving around building sites and carrying heavy materials. The applicant had no problem performing this work prior to the injury and had no issues with either leg or his back.
The applicant described the injurious event in greater detail:
“Two of us were attempting to move a sheet and while attempting to lift the smallest one, which was some six metres high, the sheet tipped over towards us as we were trying to move it. We both tried to get out from underneath it but I was struck and knocked to the ground landing on my right side with the gyprock sheet landing on the lower half of my left leg forcing the bottom half of my leg into the knee on the other side and almost folding me over from that side such that my upper leg was bent in an unusual and uncomfortable way.”
Towards the end of 2018, the applicant began complaining to his general practitioner about more widespread problems, in particular, about his upper leg and back. The applicant noticed pain about his knee, upper leg and back, which seemed to be stirred up by the way he was walking.
The applicant said that following the injury, he felt a lot of pressure to return to work. The applicant returned doing some very basic cleaning and other non-physical tasks. The work did not involve any clerical duties or use of the English language. The applicant did this work on and off, at most five hours a day, five days per week, until March 2020.
After being laid off from work, the applicant became increasingly depressed and anxious about his physical condition and was referred to a psychologist and psychiatrist. The applicant was given antidepressant medication and continued to see a psychologist. The applicant had not felt physically or mentally capable of working since he was laid off in March 2020.
Injury report
A handwritten injury report lodged on 13 August 2018 described an injury on 1 August 2018 to the applicant’s left leg and knee while lifting plasterboard sheets and the sheets fell on the applicant’s left leg.
Treating medical evidence
Clinical notes from the applicant’s general practitioner, Dr Indira Datt, at Plumpton Medical Centre as at 21 July 2020 are in evidence. A note recorded on 9 August 2018 stated:
“gyprock fell on It knee on 1st aug
c/o pain It knee
o/e no swelling or deformity
movements normal It knee
tender It knee medially
adv xray and u/s It knee
adv liniment
rest
m/c 10
panadol
r/v 1d”
The applicant was referred for x-ray and ultrasound of the left knee.
Dr Datt referred the applicant to an orthopaedic specialist on 10 August 2018. On 20 August 2018 it was noted that the applicant had seen Dr Huang and was advised to wear a brace and have an MRI. The applicant was advised to use a crutch to weight bear.
Orthopaedic surgeon, Dr Ke Huang, prepared a report for Dr Datt on 20 August 2018. Dr Huang took a history as follows:
“On August 1, 2018, his left leg was crushed by a few panels of plasterboard. This forced his left knee into valgus. Initially he was tolerating this but he subsequently developed significant pain in the medial aspect of his left knee which has caused him difficulty with walking and returning to his normal work duties. He continued to struggle with work for a few more days until the pain became so severe it stopped him from working. He does not have significant pain at rest, but when he walks, he feels pain in the medial aspect of his knee, forcing his knee into valgus, and also exacerbating the pain medially.”
The applicant was noted to walk with an antalgic gait.
On 30 August 2018, Dr Datt reviewed the MRI results and advised the applicant to see Dr Huang again.
On 4 September 2018, Dr Huang reported:
“Habibullah has attended physiotherapy and obtained a knee brace but he has not been given the crutches I asked for. He is still having trouble walking, with pain. The knee is stable. Habibullah needs to see the physiotherapist again to obtain the crutches. He can weight bear with crutches as tolerated, for the next six weeks”
At a consultation on 17 September 2018, Dr Datt recorded:
“adv to wear knee brace and wt bear as tolerated
pain off and on on walking
adv to walk as tolerated and wt bear as tolerated and to use knee brace
wants to see a person who fixes these things but is not a dr
adv to d/w with specialist”On 20 September 2018, Dr Datt noted that Dr Huang had advised the applicant could remove the brace, use one crutch and weight bear as tolerated.
On 16 October 2018, Dr Huang wrote:
“It has been two months since his injury. He has been using crutches until a few days ago. He still complains of intermittent medial aspect knee pain but the knee function has improved. He is able to walk with a walking stick at present without too much difficulty. The pain is under control. He is only using oral analgesics intermittently.”
At a case conference on 1 November 2018, Dr Datt noted “he is getting physio to back as pt is limping and affecting the back”.
A report from physiotherapist, Mr Peter Dong to Dr Huang dated 20 November 2018 notes improvement in the applicant’s pain when walking and standing as well as range of movement. Mr Dong stated:
“Gait training has been introduced. As you indicated, Mr Rezaie has been walking with a stick and taking WBAT at this stage. Limping gait remains.
…
Major issues affecting the rehab process other limping gait pattern, recurrent pain and swelling in the left knee, especially to the lateral side and patella region, and muscle weakness in the left knee.”On 22 November 2018, Dr Datt noted that the applicant complained of pain on walking more than 10 to 15 minutes and still needed physiotherapy. There was no need to use a stick and the applicant was cleared to drive to work.
On 3 December 2018, Dr Datt recorded that the applicant was concerned about his pain and would like to have a second opinion.
On 8 February 2019, orthopaedic surgeon, Dr Ali Gursel, prepared a report for Dr Datt in which he referred to a history of a work injury on 1 August 2018. A sheet of gyprock fell on the outside part of the applicant’s leg causing a valgus movement and injury in the medial collateral ligament. Despite a period of immobilisation, physiotherapy, activity modification and light duties, the applicant continued to have pain localised to the medial epicondyle on weight bearing, turning and twisting. Dr Gursel recorded an examination as follows:
“On examination today he walks with a limp, has 5 to 10° of fixed flexion deformity and tenderness of the medial epicondyle. Stressing his medial collateral ligament causes an increase in pain but there is a solid end point to this loading. He is McMurray's equivocal. His cruciate ligaments are intact. He has some quadriceps wasting.”
Dr Gursel noted that an MRI performed in November showed the medial collateral ligament injury with a meniscus scapular strain. Dr Gursel recommended an injection of platelet rich plasma (PRP) to promote healing and continuing physiotherapy.
On 25 February 2019, Dr Datt recorded that the applicant complained of a burning sensation in his thigh after physiotherapy. Examination of the thigh appeared fine although slightly tender to palpation.
Consultations with Dr Datt throughout 2019 referred to pain on walking, treatment with injections and intermittent use of crutches.
Dr Gursel recommended a further two PRP injections in a report dated 22 March 2019. On 31 May 2019, Dr Gursel of reported that the three injections improve the applicant’s symptoms about 10%. Dr Gursel or recommended a further MRI scan. On 17 June 2019, Dr Gursel reported that the further MRI showed that the medial collateral ligament had healed and there was no ongoing inflammation in this region. The applicant had a normal looking medial meniscus. There were however lesions in the medial compartment including an articular cartilage defect in the medial tibial plateau and medial femoral condyle. Dr Gursel saw no role for surgical intervention.
On 16 September 2019, physiotherapist Mr Matthew Hicks prepared a report for Dr Datt in which it was noted that the applicant had been diligently completing physiotherapy for the past four months. Although there had been steady improvements with the knee strengthen lower limb capacity, the main ongoing barrier remains the applicant’s pain focus. It was noted that the applicant was walking with a marked limp and no aids. Mr Hicks said:
“Functionally Habib continues to make slow but steady progress. He is tolerating increased loading through the left knee however unfortunately he continues to require almost constant reassurance about pain and damage. MRI dating back to June 2019 highlighted that the MCL had essentially healed and there was a very small focal full thickness chondral lesion that has likely been present for longer than the past 12 months. There is not much pathologically that explains Habib's ongoing pain. Given the length of injury, anxious behaviour and pain focus a better conclusion is a chronic pain diagnosis. Under a chronic pain diagnosis it is appropriate that we continue our current course of loading the knee into some level of pain. It is critical that as part of this plan Habib has an appropriate pharmaceutical pain management plan.”
In a report dated 23 September 2019, Dr Gursel noted:
“On examination today the most remarkable finding is that I reproduced his knee pain with his left hip flexion and rotation. He has no effusion of the left knee and reasonably good quadriceps tone but a lot of apprehension when moving the knee. In relation to his left hip, I have given him a referral for an x-ray of it to exclude any major confounding problems or referred pain from a damaged left hip.”
On 27 September 2019, Dr Gursel reported to Dr Datt:
“I reviewed this gentleman today to discuss the x-ray findings of some early arthritic change of his left hip. In view of his stiff hip, thereby putting extra pressure across his knee, I feel he may be helped with an intra-articular corticosteroid injection. He should continue working with his physiotherapist and subsequently exercise physiologist to regain his strength, balance, confidence and outcome.”
A report from rehabilitation and pain medicine consultant, Dr Geoffrey Needham, dated 27 November 2019 to Dr Datt stated:
“He suffered a left knee injury on 1st August 2018 due to a fall and has since been unable to attend duties of pre-injury type, although is undertaking selected duties for total of thirty five hours per week. He has seen two orthopaedic surgeons and had PRP injections with moderate benefit. He mobilises with an antalgic gait and demonstrated significant level of fear avoidance . He would appear to have some impairment of pain coping such that I would recommend psychology management with a Farsi speaking psychologist if such practitioner were available.”
At a review on 28 November 2019, Dr Gursel noted:
“Mr Rezaie has not had access to the intra-articular hip injection that we requested during the last consultation. As such, he has not really made any improvements in his function despite being diligent with his exercise physiologist and physiotherapist. He is still working restricted duties on the gate with minimal time spent weight bearing.
On examination today he has poor quadriceps tone, is reluctant to fully extend or flex his knee and has irritability with left hip internal rotation which he experiences in and around his left knee medial aspect. He has no real effusion and certainly no instability demonstrated on today's examination.”
Dr Needham reviewed the applicant on 8 January 2020, stating:
“Habibullah's condition remains entirely static with ongoing left knee pain and impaired gait. He is continuing with physiotherapy treatment and has commenced hydrotherapy for one session. No surgical intervention has been recommended. He has also been recommended for psychology management although a Farsi speaking psychologist has not yet been made available.”
On 20 April 2020, Dr Datt recorded:
“w/c discussed suitable duties job description sent by Chris
suitable for the roles
needs w/c cert
given
pt says he has pain rt knee and It hip pain along with It knee pain It ankle pain on walking and gets back pain on driving and feels they are due to his It knee inj
ref to Dr Gursel”At a review on 22 April 2020, Dr Gursel reported:
“He has pain on weight bearing on the medial aspect of his knee but also some significant pain radiating from his lumbosacral junction along the course of the sciatic nerve into his gluteal area down the back of his legs.
He continues to limp and his quality of life is significantly affected. He takes regular Panadol, up to 6 tablets a day. He is emotionally depressed as he cannot provide for his family, with some teenage children and one sitting her HSC and trying to home school with limited resources.
On examination today he walks with a limp, has marked pain on loading his medial compartment of the knee but also some stiffness of his left hip. He is straight leg raising positive. He has a stable knee albeit uncomfortable on loading.”
On 27 April 2020, Dr Datt noted:
“pain It leg since yesterday
pain radiating from lt buttock to It lower limb
o/e restricted movements lower back
adv ct ls spine
r/v after ct”On 25 May 2020, Dr Gursel wrote to the respondent’s insurer responding to an independent medical assessment report from Dr Bentivoglio, dated 6 December 2019:
“I note that Dr Bentivoglio feels that there are no ongoing issues related to this gentleman's knee but at every time during the consultation and on examination, this gentleman had significant pain in and around the area of the medial compartment and medial collateral ligament. This corresponds to the MRI changes which we have documented. He also has stiffness and pain with left hip rotation and I know that the insurers are not covering this particular injury.
I do not feel Mr Rezaie is able to return to his normal work, whether it is psychological or because of his ongoing symptoms in and around his left hip and knee, I do not feel I can offer him any other surgical or non surgical measures that will allow him to get back to his normal duties either and as such, I am limited in my ability to offer continued help to this gentleman. His limited capacity is directly related to his work injury, his subsequent weakness and inability to fully recover.”
Psychiatrist, Dr Aman Suman, prepared a report for Dr Datt on 18 June 2020. Dr Suman gave the opinion that the applicant had experienced increasing stressors following his injury in August 2018. The applicant’s presentation and symptoms satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood as per DSM-V diagnostic criteria. The applicant also suffered from chronic pain affecting his left knee.
On 25 June 2020, Dr Gursel reported that the applicant continued to have significant pain on the medial aspect of his knee despite wearing the brace, modifying his activity and taking analgesics. The applicant had undergone no physiotherapy. Dr Gursel advised:
“This gentleman has ongoing symptoms and is not in any capacity to return to any duties. I feel if he does that, there is a major psychological component to his problems and he is probably best managed with a psychologist review, hopefully taking into account, his language difficulty. I offered him an intra-articular corticosteroid injection, followed up by some physiotherapy but he declined.”
On 9 September 2020, Dr Datt prepared a report for the applicant’s solicitor stating that the injury on 1 August 2018 caused pain in the applicant’s left knee. Pain in the left hip and lower back were investigated and treated by Dr Gursel. The applicant had some right knee pain but had not complained of that lately. The applicant had an adjustment disorder with mixed anxiety and depressed mood.
Dr Datt stated that the pain in the applicant’s left hip and lower back developed “possibly” due to his altered gait. The anxiety and depression occurred due to chronic pain, financial stressors and loss of job.
Dr Datt said the applicant’s left knee symptoms had not resolved. Dr Datt considered employment was the main contributing factor to the applicant’s left knee injury and consequential conditions. The applicant was unable to return to his pre-injury duties.
Dr Gursel prepared a report for the applicant’s solicitor on 20 October 2020. Dr Gursel said he first reviewed the applicant at the request of Dr Datt on 8 February 2019:
“The history given to me by Mr Rezaie, who was accompanied by an interpreter, was that on 1 August 2018 he had a large sheet of gyprock fall directly on the outside part of his leg causing a valgus moment pushing his knee and hip inwards. He had a documented medial collateral ligament injury.
He had appropriate immobilisation, physiotherapy, activity modification and the resumption of light duties, before I had reviewed him in February.
The diagnosis was a left knee injury as well as an injury to his left hip and an altered gait pattern disturbing his lumbar spine biomechanics.”
Dr Gursel said the injuries produced ongoing pain, limping and stiffness. With regard to the hip and lumbar spine, Dr Gursel stated:
“He has had well documented left hip issues, both historically with his symptoms as well as on clinical examination and investigations. These are the direct results of his injuries. His lumbar spine condition has developed through his injuries and subsequent period of limping.”
Dr Suman prepared a report for the applicant’s solicitor on 2 November 2020. Dr Suman said the applicant had received psychological input since early 2020 and continued to receive fortnightly input from his psychologist. The applicant was treated with mirtazapine. The dosage had been increased at a recent review on 29 October 2020. With respect to the impact of the psychological condition on the applicant’s capacity for work, Dr Suman stated:
“Overall, I am of the opinion that Mr Rezaie’s psychological injury has had an adverse effect on his prospects of employment as well as adversely affecting his earning capacity. Mr Rezaie would struggle to go back to a full-time role similar to the one he was managing previously. He might be able to manage a part-time role, working one to 2 days a week once he responds to treatment.”
Psychologist, Dr Farangis Houshmand, prepared a report for Dr Datt on 12 March 2021. Dr Houshmand reported that the applicant’s results on the Depression Anxiety and Stress Scale (DASS) questionnaire indicated that he was experiencing extremely severe levels of depression and anxiety and a high level of stress. This was consistent with Dr Houshmand’s clinical impression. Dr Houshmand stated:
“His medical conditions such as severe pain in his left knee, hip and lumbar spine exacerbated his depression and anxiety symptoms. He reported that he experiences aches and pain throughout his body as well as severe headaches which significantly impacts on his daily functioning. It appears he is not fit to work or study at this stage.”
Dr Datt handed over care of the applicant to another general practitioner, Dr Tang, on 1 March 2021. Dr Tang prepared a report for the applicant’s solicitor on 18 April 2021 in which it was stated:
“He states that the mechanism of injury occurred on 1 August 2018. A 1 tonne gyprock fell and struck him on the left knee.
He was referred to several Orthopaedic Surgeons and subsequently had surgical management with Dr. Ali Gursel, 3 cortisone injections into the left knee and 1 cortisone injection into the left hip.
Because of the significant nature of his injuries, he’s not been able to return to work in any capacity for over 18 months. His substantive position is a delivery driver for universal property group.
His pains in the left knee is 9/10 on the visual analogue scale, 8/10 on the visual analogue scale in the lower back and 8/10 on the visual analogue scale in the left hip. He has limited sitting, standing and walking restrictions. He has since developed depression and anxiety as a result, of the chronic pains and discomfort.
Given the significant nature of his current physical, psychological injuries, failure to improve with surgical management and conservative management and his limited grasp of the English language, he would not be able to attain gainful employment in the short term and the long term.”
WorkCover certificates of capacity and evidence dating from 20 January 2020 until 21 June 2020 certify the applicant as having capacity to work seven hours per day five days per week there lifting carrying capacity of 2 kg and no pushing, pulling, bending, twisting or sporting ability. The applicant’s sitting tolerance and driving ability were normal.
Dr Assem
The applicant relies on medicolegal reports prepared by rehabilitation specialist, Dr Mohammed Assem, dated 29 June 2020 and 18 December 2020.
Dr Assem saw the applicant with the assistance of an interpreter in the Persian language. Dr Assem took a history of a forced valgus injury to the left knee when several panels of plasterboard fell onto his left leg on 1 August 2018. A history of subsequent treatment and investigations consistent with the other evidence was recorded.
With regard to the left hip, Dr Assem recorded:
“Mr Rezaie also experienced pain in his left hip that he relates to the original injury. His left hip symptoms were more noticeable as his left knee complaints improved. He underwent radiological investigations of his left hip that identified mild arthritic changes.”
The applicant’s current symptoms included intermittent lower back discomfort predominantly over the left sacroiliac joint radiating to the left buttock and down the posterior aspect of his left thigh. The applicant had intermittent pain in his left hip limiting his ability to walk for more than 100 to 150 m. The applicant’s main concern was constant pain on the medial aspect of his left knee that fluctuated in intensity.
The applicant’s present treatment included six to eight tablets of Panadol every day.
Dr Assem reviewed an MRI scan of the left knee taken on 24 August 2018 and performed an examination of the left knee, left hip and lumbar spine. Dr Assem made a diagnosis as follows:
“Mr Rezaie sustained a significant traumatic injury to his left knee resulting in a high-grade tear to the medial collateral ligament, marked swelling and oedema, pes anserinus bursitis, extensive bony oedema on the anteromedial medial aspect of the medial tibial plateau and evidence of some cortical oedema in the posterior femoral condyle.
His condition is consistent with the injuries sustained during the course of his employment. As his left knee complaints improved, there was increasing pain in his left hip and lower back on weight bearing. Radiological imaging of his left hip identified osteoarthritic changes.
He has continued to be symptomatic since the subject injury and ambulating with a limp. He has received extensive treatment without any long-term benefit. This includes three PRP injections to his left knee and a cortisone injection to his left hip.”
With regard to causation, Dr Assem stated:
“He has a clear history of a traumatic injury to his left knee and probably his left hip. He developed secondary pain in the left sacro-iliac joint due to his altered gait pattern. The unbroken chain of events show that his employment has continued to be a substantial contributing factor to his condition and subsequent incapacity.”
With regard to the applicant’s capacity for work, Dr Assem stated:
“Mr Rezaie demonstrated a capacity to perform suitable duties at restricted hours until suitable duties were withdrawn in March 2020. He would be able to perform similar suitable duties if they were available. Given his age, complaints, limitations, lack of transferrable skills and poor English language skills, it is unlikely that he would be able to secure suitable employment that he would be capable of performing in a regular and reliable manner. For practical purposes, he can be considered to be totally and permanently incapacitated.”
Dr Assem made an assessment of WPI of the lumbar spine, left hip and left knee reaching a combined total of 20%.
In his supplementary report of 18 December 2020, Dr Assem was asked to provide a further opinion with regard to the causes of the applicant’s symptoms. Dr Assem stated:
“Unfortunately, he sustained a significant valgus injury to his left knee, pushing his left knee and hip inwards. It is not uncommon for injuries to adjacent joints due to close proximity and therefore x-rays are usually taken of joints above and below the area injured. It is also not uncommon for pain in the hip to be referred to the knee.
As a result of the injury, he was non-weight bearing with crutches for 30 days. His hip symptoms gradually became more noticeable as his mobility improved. In the absence of any other cause, it is most likely due to a combination of factors including the subject injury and altered gait pattern that has caused, aggravated, accelerated or exacerbated the arthritic changes observed on radiological imaging.
Due to pain involving his left hip and knee, he was ambulating with a limp for prolonged periods. Depending on the magnitude of the limp, there will be an exaggerated side to side and vertical displacement of the body's centre of gravity. When weight is transferred to the good leg, the repositioning of the centre of gravity in the mid-line is in part due to the pull of the para-lumbar, spinal and abdominal musculature on the normal side. The increased muscle pull increases the force transmitted across the lumbar discs and facet joints. This produces a seesaw effect where the disc centres become the centres of rotation or fulcrum for the para-lumbar muscle force, balancing body weight. The repetitive pull of the trunk musculature in time may result in increased wear and tear to the disc segments since the force transmitted across the discs would be greater for an individual who limps than for someone with a normal gait. This, in turn, might cause or aggravate degenerative change (osteoarthritis) of the disc and facet joints. Had it not been for the subject injury, he would have probably continued to work in a regular and reliable manner.”
Dr Bentivoglio
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr John Bentivoglio, dated 25 November 2019, 6 December 2019, 7 September 2020 and 3 August 2021.
In his first report, Dr Bentivoglio took a history of the injury to the left knee on 1 August 2018 and subsequent treatment. Dr Bentivoglio noted that the applicant subsequently developed symptoms in his left hip and had investigations which showed arthritis. Dr Gursel felt the applicant would benefit from a CT guided cortisone injection. Dr Bentivoglio commented:
“Liability for Mr Rezaie’s hip complaint correctly was not accepted for his left hip symptoms. Definitely his knee complaint would not have predisposed him to starting to experience symptoms in his left hip. If it had been the contralateral hip, possibly it could be linked to the left knee injury.”
The applicant reported symptoms including a sensation of his knee joint coming apart medial side. The applicant had pain present in his knee with weight bearing and activity. The applicant had difficulty with stairs and negotiated them with an abnormal cadence with his left lower limb leading.
On examination, Dr Bentivoglio observed a slight limp and 2 cm muscle wasting present in the left thigh.
Dr Bentivoglio reviewed various radiological investigations and gave the following opinion:
“Mr Rezaie’s current diagnosis is that of partial tearing of his medial collateral ligament of his left knee on 1 August 2018. The injury was treated conservatively and his most recent investigations with an MRI scan taken of his knee as well as physical examination indicate that the medial ligament injury has healed uneventfully.”
Dr Bentivoglio agreed that employment had been a substantial contributing factor to the knee injury and there was no indication of any pre-existing abnormality prior to injury. With regard to the left hip, Dr Bentivoglio observed:
“The CT guided cortisone injection into his hip is for his constitutional minor degenerative changes present in his hip. You are not liable for the cost of this.”
Having fully recovered from the medial collateral ligament injury, Dr Bentivoglio considered the applicant was perfectly capable of returning to his full pre-injury duties.
In his report dated 6 December 2019, Dr Bentivoglio was asked to confirm whether the applicant’s injury had resolved. Dr Bentivoglio stated:
“I would consider that on the most recent MRI scan taken of Mr Rezaie’s left knee he is fully recovered from the work-related knee injury. I would consider his injury has now resolved.”
In his report of 7 September 2020, Dr Bentivoglio again noted the subsequent development of symptoms in the left hip. The applicant was not aware of any injury to the left hip at the time of the initial incident. Investigations indicated a degree of degenerative change involving the hip. Cortisone injections were of some benefit. The applicant’s symptoms and clinical examination were consistent with that recorded previously. Dr Bentivoglio commented:
“With no injury to his left hip in the initial incident and with him avoiding weight bearing on his left lower limb because of his knee injury, there is no way that there could be any consequential injury to his left hip. Any disability he may have in his left hip is entirely constitutional in origin.”
Dr Bentivoglio was asked to comment on the assessment of Dr Assem dated 29 June 2020. Dr Bentivoglio noted:
“I have viewed his solicitor’s IME assessment of Mr Rezaie from a report dated 29 June 2020. He has given Mr Rezaie an impairment rating for his back, even though he does not complain of any symptoms in his back and has not had any investigations done of his back to verify any damage. It is entirely inappropriate and not scientific.
…
With regards his left hip issue, he advised me he was not aware of having any injury to his left hip in the incident at work and considering he would not be placing much in the way of weight on his left lower limb (because of his knee complaint) there is no way that a rational person would suggest there could possibly be any consequential injury to his left hip. It is entirely inappropriate to give any impairment rating for his hip. I therefore totally disagree with the impairment rating given by his solicitor’s IME.”With regard to capacity for work, Dr Bentivoglio stated:
“On the most recent MRI scan taken of his knee arranged by his local doctor in January 2019 with it being reported as showing only relatively minimal strain changes involving the medial collateral ligament and some focal chondropathy affecting the medial compartment and medial edge of his patella, Mr Rezaie would be fit for his full preinjury duties. He does not require any restrictions.”
Dr Bentivoglio made an assessment of 3% WPI of the left knee.
In his final report of 3 August 2021, Dr Bentivoglio noted the history of injury recorded by him previously. An MRI scan revealed a significant medial ligament injury. Ten months later, a further MRI revealed the medial ligament injury had recovered and there was only evidence of relatively minor spraining changes involving the medial collateral ligament. Dr Bentivoglio said that with this type of injury the applicant would have been walking in a slightly abnormal fashion for a period of two months. Whilst using crutches the applicant would have been walking normally with weight transferred to the crutch.
With regard to the left hip, Dr Bentivoglio stated:
“I have seen reports from his solicitors’ IME (both the rehabilitation specialist and not orthopaedic surgeons). They both felt that he walked with an antalgic gait but did not offer a reason as to why he would have an antalgic gait with essentially a normal MRI scan taken of his knee at ten months after the specific incident. They both felt his abnormal walking pattern would place extra strain on his left hip as well as his lumbar spine.
In relation to his left hip, if one accepts that he has a significant problem with his left knee at this late stage (and I am not of that opinion, although it appeared that the rehabilitation physicians are of that opinion) then he would not be placing full weight on his left lower limb, would not have extra strain on his left hip and it is not a rational argument to state that there would be extra pressure placed on his left hip by his abnormal walking pattern. Any disability he has in his left hip is not related to his left knee injury. There would perhaps be some rational argument if he was having symptoms in his right hip that it could have arisen from his left knee injury.”
With regard to the lumbar spine, Dr Bentivoglio stated:
“As far as his back is concerned, as indicated previously, Mr Rezaie was using crutches for at least six weeks following the specific incident. With the MRI scan taken of his knee in June 2019, ten months following his injury, showing little if any abnormality present in his knee., he would have completely recovered from the injury to his left knee by no later than three months following that incident. I have difficulty (as Mr Rezaie has not had any investigation done of his lumbar spine) accepting his knee complaint for a short period of time could produce any back disability. If Mr Rezaie truly does have an antalgic gait, it is not as a result of his knee injury.”
Vocational assessment report
A vocational assessment report prepared by ProCare on 16 April 2020 identified as suitable employment options for the applicant, the job of a packer or product assembler. The assessment was performed in relation to an injury diagnosed as a partial tearing of medial collateral ligament of his left knee.
It was noted that the assessment was carried out with the assistance of a Farsi interpreter as the applicant was not able to communicate in basic English with the assessor.
It was noted that the applicant was certified until 21 February 2020 as having capacity seven hours per day five days per week with a lifting carrying capacity of 2 kg, no pushing/pulling ability and no bending/twisting/ squatting ability. And drive normally and stand as tolerated.
The applicant’s left hip pain symptoms were noted as a concurrent medical impairment, liability for which had not been accepted by the insurer.
Applicant’s submissions
With respect to the alleged secondary psychological condition, the applicant submitted that evidence of the condition was served on the respondent in previous proceedings before the Commission. While there was no explanation for the late notice of the dispute, the applicant accepted it would be in the interests of justice for leave to be granted to the respondent to dispute it.
With respect to the allegation of injury to the left hip, the applicant noted the nature of the injury to the left knee being a forced valgus injury. The applicant described the later onset of pain in the left hip and lower back. The applicant was unaware of the connection between the left hip and knee injury until told about it by Dr Gursel some six months later.
Dr Gursel had, in his report of 20 October 2020, given the opinion that the left hip was injured in the accident on 1 August 2018. Dr Gursel referred to the large sheet of gyprock falling on the outside of the applicant’s leg causing a valgus movement, pushing the knee and hip inwards.
It was noted that Dr Datt recorded complaints of pain in the hip and lower back in her clinical notes on 20 April 2020. In the report of 8 September 2020, Dr Datt attributed the symptoms to altered gait.
The applicant conceded that there was a lack of evidence of injury to the lower back. All of the evidence pointed to a consequential lower back condition. There was, however, evidence of injury to the left hip in Dr Gursel’s reports and his notes dealing with complaints of pain in the hip and lower back in April 2020.
Dr Gursel gave evidence supporting a complaint of injury to the left hip with a logical explanation as to how the injury had occurred.
The applicant submitted that the evidence demonstrated complaints of pain in the left hip and lower back occurring after the use of crutches and altered gait resulting from the left knee injury. The altered gait persisted, as referred to in the report of Dr Gursel, dated 22 April 2020.
Dr Datt attributed the pain in the left hip and lower back to altered gait in her report of 8 September 2020. The applicant’s evidence was that he did not realise the pain in his left hip and lower back were related to the knee injury until Dr Gursel’s diagnosis as set out in his report of 20 October 2020.
By April 2020, the applicant had made complaints of pain in relation to the left knee left hip and lower back as demonstrated in the evidence from Dr Datt, Dr Gursel and Dr Assem.
The series of reports from Dr Bentivoglio relied upon by the respondent were based on the premise that the injury to the left knee should have recovered and that there were no complaints of pain to the lower back. Dr Gursel specifically noted Dr Bentivoglio’s opinion and disagreed with it on the basis of the applicant’s ongoing complaints of pain. Dr Gursel’s opinion was significant, being from the treating surgeon who had seen the applicant on numerous occasions. The opinion was noted by Dr Gursel in a treating report not prepared for the applicant’s solicitors.
Dr Datt’s clinical notes recorded constant complaints of pain mainly to the left knee but also to the left hip and lower back after April 2020. This was contrary to Dr Bentivoglio’s observations and his opinion that the effects of injury ceased a short time after the injury on 1 August 2018.
The applicant submitted that the opinions of Dr Gursel and Dr Datt ought to be preferred to Dr Bentivoglio as they had seen the applicant on many occasions and took a consistent history of ongoing complaints of pain. Dr Bentivoglio’s diagnosis was based not on the applicant’s clinical presentation but his perception of what that presentation should be.
The applicant submitted that for a consequential condition, it was sufficient that there was a manifestation of symptoms. The applicant noted that the relevant test of causation was set out in Kooragang Cement Pty Ltd v Bates[1].
[1] (1994) 10 NSWCCR 796 at [810].
With regard to capacity for work, the applicant submitted that he was terminated whilst on restricted duties. The applicant was fit to work 35 hours with restrictions. The applicant had only performed heavy manual labour as a gyprocker or builder’s labourer prior to the injury. The applicant would only be capable of performing light cleaning work or light retail work such as a console operator at a service station, earning approximately $550 per week. Based on the applicant’s pre-injury average weekly earnings (PIAWE) of $1,368 the loss would be $818 per week. The second entitlement period ended on 25 March 2021.
Respondent’s submissions
The respondent relied upon the opinion of Dr Bentivoglio, dated 25 November 2019, that the medial ligament damage at the applicant’s left knee had healed resulting in no significant instability. The applicant’s residual symptoms were more than what would normally be anticipated for the injury suffered. The Commission would find that the applicant had recovered from the left knee injury.
There was no contest that the applicant injured to the left knee on 1 August 2018. The ARD alleged that the applicant suffered injury to his lumbar spine, left hip and right knee in the same event.
The applicant’s statement described only the injury to the left knee with consequential conditions to the left hip and lower back. There was no mention of any complaint concerning the left hip, right knee or lower back on the date complained of.
The clinical notes of Dr Datt on 9 August 2018 made no reference to the right knee, left hip or lumbar spine.
Dr Assem provided a report dated 29 June 2020 in which it was noted that the applicant complained of pain in the left hip, which he related to the original injury. Dr Assem took a history of traumatic injury to the left knee and “probably his left hip” and secondary pain in the left sacroiliac joint due to altered gait. The respondent submitted that Dr Assem’s assessment of causation was of little assistance to the Commission given the history taken and the limited reasoning provided concerning whether there was an injury to the left hip, right knee or lumbar spine as at 1 August 2018.
There was no mention of the right knee, left hip or lumbar spine at the time of injury in any of the contemporaneous medical records. The respondent submitted that the Commission would find that the applicant did not suffer an injury simplicity to the left hip, right knee or lumbar spine in the event on 1 August 2018. The applicant had not satisfied his burden of proof.
With regard to the allegations of consequential left hip and lumbar spine conditions, the respondent noted the applicant’s complaints of pain in the left hip and lower back after the use of crutches and due to altered gait.
Physiotherapist, Mr Dong in November 2018 noted the limping gait pattern with recurrent pain and swelling in the left knee. No complaints of any difficulties concerning the lumbar spine and lower hip were noted.
The respondent noted the report of Mr Hicks, dated 16 September 2019, in which the applicant’s pain focus was noted as the main ongoing barrier. Mr Hicks identified a mild limp and no walking aids being used. There was not much pathologically to explain the applicant’s ongoing pain. The physiotherapist concluded that a chronic pain diagnosis was warranted.
The respondent referred to the report of Dr Assem and noted that there was no reasoning provided as to why the left hip or lumbar spine were consequential conditions. The doctor had an incorrect history regarding the onset of symptoms.
Dr Datt had provided a report suggesting pain in the left hip and lower back developed “possibly” due to altered gait. The opinion of Dr Datt was said to be less than clear.
The respondent noted the report of Dr Gursel dated 20 October 2020 and submitted that it was difficult to extract a cogent line of reasoning on the question of causation.
The respondent submitted that the applicant had not established causation applying the common sense test.
In contrast, Dr Bentivoglio stated definitively that the knee complaint would not have predisposed the applicant to symptoms in the left hip. Had the contralateral hip been symptomatic, that could possibly be linked to the left knee. The x-ray of the left hip on 23 September 2019 showed minimal degenerative changes. As the abnormality was on the same side as the injured knee, the applicant would not be placing full weight on the left lower limb. The degenerative changes were entirely constitutional in origin.
Dr Bentivoglio was also critical of Dr Assem’s assessment of the back. Dr Bentivoglio considered there was no causative link in relation to the same.
In his last supplementary report, Dr Bentivoglio again addressed the consequential conditions at the lumbar spine and left hip. Dr Bentivoglio had been provided with the treating material together with the reports from Dr Assem. Given that the knee complaint was of a short duration, Dr Bentivoglio considered there was no way the left hip complaint was related to the left knee injury. Given the minimal length of time the applicant would have been walking with an abnormal gait and noting the MRI scan of the left knee in 2019, Dr Bentivoglio also considered there was no way the applicant could have suffered a back complaint related to the left knee.
Considering the totality of the evidence, the respondent submitted that the Commission would not feel an actual persuasion that the applicant suffered any consequential condition to the left hip or lumbar spine as alleged.
With regard to the alleged secondary psychological condition, the respondent submitted that it had not had the opportunity to obtain qualified evidence to respond to the claim. The respondent sought a further teleconference or further opportunity to provide written submissions should the allegation not be withdrawn.
With regard to the claim for weekly compensation, the respondent referred to the opinion of Dr Bentivoglio that the applicant’s left knee condition had resolved. Dr Bentivoglio found no reason why the applicant was incapable of undertaking his full pre-injury duties. Dr Bentivoglio’s opinion was consistent with the MRI scan of June 2019.
The respondent referred to the ProCare report and the applicant’s certification of capacity for 35 hours per week, consistent with the opinion of Dr Bentivoglio. The respondent submitted that there would be no award for weekly benefits in favour of the applicant. If there was an award, it would be limited as the applicant had a clear capacity for work.
The respondent submitted that the Commission had no jurisdiction to make an award in favour of the applicant for weekly compensation after 25 March 2021.
FINDINGS AND REASONS
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
No compensation is payable in respect of an injury falling under s 4(a) of the 1987 Act unless the employment concerned was a substantial contributing factor to the injury.
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury for the purposes of ss 4 and 9A. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
There is no dispute in this case that the applicant sustained an injury to his left knee in the event on 1 August 2018. There is, however, no contemporaneous evidence of an injury to any of the other alleged body parts including, the right knee, lumbar spine and left hip in the same event.
The contemporaneous injury report referred only to the applicant’s left leg and knee. The first evidence of the injury from the applicant’s general practitioner, Dr Datt, also referred to symptoms in the left knee only. The applicant himself does not claim to have been aware of symptoms in any of the disputed body parts at the time of the injurious event.
It was not until approximately three months after the injurious event, at a case conference on 1 November 2018, that there was mention of the back. Dr Datt’s clinical note on that occasion referred to the applicant obtaining physiotherapy treatment for the back as he was limping and this was affecting the back. This is consistent with a consequential condition to the back but not evidence of an injury to the lumbar spine.
On 25 February 2019, there was reference to a burning sensation in the applicant’s thigh and slight tenderness to palpation at the thigh following physiotherapy in the clinical notes of Dr Datt.
The first reference to symptoms in the left hip that I can discern from the treating medical evidence before me appeared in the report of Dr Gursel, dated 23 September 2019, more than a year after the injurious event.
The value of contemporaneous evidence in considering whether an applicant has discharged his evidentiary onus has been repeatedly endorsed by the courts: Watson v Foxman[3] and Onassis v Vergottis[4]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[3] (1995) 49 NSWLR 315.
[4] (1968) 2 Lloyds Report 403.
In Department of Education and Training v Ireland[5] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[5] [2008] NSWWCCPD 134.
The absence of contemporaneous evidence of injury to the disputed body parts in this case weighs heavily against the applicant’s case.
Whilst there is subsequent reference to symptoms in both the right knee and the lumbar spine in the later treating medical evidence, and opinions in relation to the lumbar spine in the medicolegal evidence, none of the later material provides any explanation or support for the proposition that the applicant sustained an injury to his right knee or lumbar spine in the injurious event on 1 August 2018.
I am not satisfied that the applicant has discharged his onus of establishing an injury to the right knee or lumbar spine in the event on 1 August 2018 for the purposes of ss 4 or 9A of the 1987 Act.
The position in relation to the left hip is very different. A clear explanation for the delayed reporting of symptoms in the left hip has been provided by both the treating surgeon, Dr Gursel, and the applicant’s medicolegal expert, Dr Assem.
The opinions given by Dr Gursel and Dr Assem take particular note of the mechanism of injury. As is made clear from the applicant’s supplementary statement and the detailed descriptions of the injurious event provided to Dr Gursel and Dr Assem, the injury involved a heavy sheet of gyprock landing on the outside of the applicant’s left leg whilst he lay on his right side on the floor. This forced the applicant’s left leg and knee into a valgus position, rotating inwards.
The impact of the gyprock on the applicant’s left leg was sufficient to cause a significant injury to the left knee, which has been accepted by the insurer and its expert, Dr Bentivoglio.
Dr Gursel has, in his report for the applicant’s solicitor dated 20 October 2020, described how this mechanism pushed both the applicant’s hip and knee inwards. Dr Gursel diagnosed an injury to the left hip as a direct result of the injurious event.
Whilst the clarity of Dr Gursel’s reasoning with respect to causation was criticised by the respondent’s submissions, a clearer explanation has been provided by Dr Assem in his supplementary report of 18 December 2020.
Dr Assem agreed that the mechanism of injury involved the applicant’s left knee and hip being pushed inwards. Dr Assem said it was not uncommon for there to be injuries to adjacent joints in the case of a valgus injury and it was common for x-rays of joints above and below the area injured to be ordered.
Significantly, Dr Assem has also provided an explanation for the delayed reporting of symptoms at the left hip. Dr Assem said it was not uncommon for pain in the hip to be referred to the knee. Dr Assem also noted that the applicant was non-weight-bearing with crutches for a period of time following the knee injury. In the absence of weight bearing, the symptoms may not have been immediately noticeable. As the applicant’s mobility improved and his weight-bearing increased, the symptoms began to be noticed.
The explanation provided by Dr Assem is consistent with the treating medical evidence. In particular, Dr Gursel, in his report of 23 September 2019, recorded a “remarkable” finding in that he reproduced the applicant’s knee pain with left hip flexion and rotation. This is consistent with Dr Assem’s observation that it is not uncommon for pain in the hip to be referred to the knee.
The treating evidence generally confirms that although there was a significant improvement in the left knee pathology, shown on radiological investigations, the knee remained significantly symptomatic.
The clinical notes of Dr Datt and the reports of Dr Huang, Mr Dong, Hr Hicks and Dr Gursel all refer to the applicant using crutches until mid-October and subsequently a walking stick. The evidence also refers to recurrent pain and swelling to the left knee as well as muscle weakness. Quadriceps wasting was noted on number of occasions. The knee pain remained sufficiently serious for Dr Gursel to recommend a series of PRP injections commencing in early 2019. In 2019, Dr Datt also noted the continued intermittent use of crutches.
The hip symptoms were investigated by Dr Gursel who referred the applicant for an x-ray. On 27 September 2019, Dr Gursel said the x-ray findings showed early arthritic change of the left hip. Dr Gursel suggested that the applicant’s stiff hip was putting extra pressure across the knee which could be helped with an intra-articular corticosteroid injection. The injection recommended by Dr Gursel was not in fact performed until sometime later due to lack of funding. The treating medical evidence shows ongoing reports of symptoms of pain and stiffness in the left hip thereafter.
Although Dr Assem made a tentative reference to there being a traumatic injury to the left knee and “probably the left hip” in his initial report dated 29 June 2020, in his supplementary report, a much more detailed and persuasive explanation of both the mechanism of injury and the delayed reporting of symptoms has been provided. Dr Assem referred to the injury causing an aggravation, acceleration or exacerbation of the arthritic changes observed on the radiological imaging of the hip.
Weighing against this body of evidence is the series of reports from Dr Bentivoglio. Dr Bentivoglio’s reports dealing with the left hip predominantly addressed the proposition that the condition in the left hip was consequential to the left knee injury. Rather persuasively, Dr Bentivoglio suggested that while symptoms in the contralateral hip could potentially be explained by the left knee injury, the knee injury and any altered gait would not have resulted in symptoms on the same side.
Dr Bentivoglio accepted that there were degenerative changes at the applicant’s hip. He also noted that there was no indication of any pre-existing abnormality or symptoms at the left hip prior to the work injury. Dr Bentivoglio’s consideration of the possibility of a left hip injury, however, appears limited to the applicant’s history of not being aware of an injury to his left hip in the incident at work.
That the applicant was not aware of the left hip injury is not contentious. There is, however, a consistent and persuasive body of evidence indicating that as the applicant began to place more weight through the left limb as the knee pathology improved, he became aware of symptoms in the left hip. The immobilisation and lack of weight-bearing explain, in part, the delayed reporting of symptoms. The same is also explained by the referral of pain from the hip to the knee. The mechanism of injury is consistent with there having been an injury to the left hip in the event on 1 August 2018.
After carefully weighing the evidence, I feel a sense of actual persuasion that the left hip was injured by way of an aggravation of pre-existing degenerative pathology on 1 August 2018, consistently with the opinion of Dr Assem. I am further satisfied that despite the presence of pre-existing pathology, the work injury was the main contributing factor and a substantial contributing factor to the pathology being aggravated and rendered symptomatic. The injury is therefore one falling within both ss 4(a) / 9A and 4(b)(ii) of the 1987 Act.
Although I have not accepted that the applicant sustained an ‘injury’ to his lumbar spine in the event on 1 August 2018, it remains to be considered whether he sustained a consequential condition affecting the lumbar spine as a result of the knee and hip injury on that date.
It is not necessary for the applicant to demonstrate that any consequential condition at the lumbar spine is an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[6] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[6] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[7], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[7] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“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. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The consequential condition alleged to the lumbar spine is said to have arisen due to altered gait caused by the left knee and hip injury.
There is ample evidence of limping and an antalgic gait in the treating evidence before me. Antalgic gait was noted by Dr Huang on 20 August 2018. On 1 November 2018, Dr Datt noted that the applicant was receiving physiotherapy to his back as the limping was affecting his back. The applicant’s physiotherapist, Mr Dong, noted on 20 November 2018 that the applicant had been walking with a stick and using a limping gait pattern. When Dr Gursel first saw the applicant in February 2019, he noted the applicant to be walking with a limp. References to pain on walking and intermittent use of crutches and limping appear throughout Dr Datt’s clinical notes. In September 2019, Mr Hicks commented on the applicant’s marked limp. Dr Needham noted the antalgic gait in November 2019. The applicant was noted to continue to limp in April 2020 by Dr Gursel.
The applicant’s limp was also noted in the examination performed by Dr Bentivoglio in November 2019 and in the history and examination recorded by Dr Assem.
As noted above, the treating evidence before me also shows consistent reporting of significant symptoms of pain, particularly on loading the left knee.
The treating medical evidence therefore stands in marked contrast to Dr Bentivoglio’s opinion that the applicant had fully recovered from the work-related knee injury sustained in the event on 1 August 2018.
The radiological evidence did show some resolution of the pathology at the medial collateral ligament, as demonstrated in the MRI performed in early 2019. Dr Gursel did, however, note in his report of 17 June 2019 that there were still lesions in the medial compartment including an articular cartilage defect in the medial tibial plateau and medial femoral condyle. Although it is correct to say that Dr Gursel saw no role for surgical intervention, his reports nonetheless suggest a pathological explanation for the ongoing symptoms reported by the applicant.
Dr Gursel noted that the applicant had reported significant pain in and around the area of the medial compartment and medial collateral ligament at every consultation and examination performed by him. This was said to correspond with the MRI changes that were documented. The applicant also had stiffness and pain with left hip rotation.
Dr Assem’s opinion that the applicant continued to be symptomatic in the left knee and ambulated with a limp therefore appears more in line with the treating evidence than Dr Bentivoglio’s opinion.
Dr Bentivoglio expected that the applicant would have completely recovered from the injury to the left knee by no later than three months following that incident. If the applicant truly had an antalgic gait, Dr Bentivoglio did not consider it was the result of the applicant’s knee injury. I am not satisfied that this opinion is consistent with the applicant’s actual clinical presentation in the treating evidence before me.
In giving his opinion, Dr Bentivoglio did not specifically address the other pathology shown on MRI at the left knee and did not address the limp and the muscle wasting at the left thigh present at his own physical examination of the applicant. It is significant that Dr Bentivoglio did not consider there to be any compensable injury at the left hip which could account for altered gait.
Dr Bentivoglio also based his opinion on the lumbar spine condition on the absence of reported symptoms in the back and investigations of the back.
There is no evidence before me of any radiological investigation of the lumbar spine. It is not, however, necessary for the applicant to establish a change in pathology at the lumbar spine causally related to the event on 1 August 2018. The authorities referred to above demonstrate that it is sufficient that symptoms and restrictions at the lumbar spine have resulted from the work injury.
There is, in the treating medical evidence, a number of references to lumbar symptoms in connection with altered gait. As indicated above, the first of these appears in the clinical notes of Dr Datt on 1 November 2018. The applicant was noted to be receiving physiotherapy to the lumbar spine due to pain associated with limping. Back pain associated with the injury was noted again by Dr Datt on 20 April 2020. On 22 April 2020, Dr Gursel noted that the applicant had some significant pain radiating from his lumbosacral junction along the course of the sciatic nerve into the gluteal area down the back of his legs. Dr Datt noted the same again on 27 April 2020. Dr Datt referred to lower back pain in her report for the applicant’s solicitor on 9 September 2020 and related this to the altered gait. Lumbar symptoms were more recently noted in the report of Dr Tang in April 2021.
In his report of 20 October 2020, Dr Gursel made a diagnosis of altered gait pattern disturbing the applicant’s lumbar spine biomechanics. Dr Gursel said the lumbar spine condition had developed through the injuries and subsequent period of limping.
Dr Assem has also provided a detailed explanation of the causal relationship between the applicant’s left hip and knee injuries and the lumbar symptoms reported to him. Dr Assem noted that an exaggerated side to side and vertical displacement of the body’s centre of gravity caused increased muscle pull and increased force transmitted across the lumbar discs and facet joints, producing a seesaw effect where the disc centres became the centres of rotation or fulcrum for the paralumbar muscle forces.
Weighing the evidence before me, I feel a sense of actual persuasion that the applicant has symptoms at the lumbar spine which have resulted from the injuries to the left knee and left hip through the subsequent altered gait.
I am satisfied that the applicant has sustained a consequential condition at the lumbar spine as a result of the injury on 1 August 2018.
Neither Dr Gursel nor Dr Assem provide any real support for the proposition that there is a consequential condition at the left hip as a result of the injury on 1 August 2018. The reasoning provided by Dr Bentivoglio with regard to the allegation of a consequential left hip condition resulting from the left knee injury is thorough and persuasive. I do not accept that the applicant has sustained a consequential condition at the left hip as a result of the injury on 1 August 2018.
In view of the findings above, it is appropriate that there be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment to the left lower extremity (knee and hip) and lumbar spine resulting from the injury on 1 August 2018.
All of the evidence admitted in these proceedings should be included in the referral to the Medical Assessor.
I am also satisfied that there should be a general order for the respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act in respect of the left knee and left hip injuries and consequential lumbar spine condition.
Outstanding disputes
There remain outstanding disputes as to the alleged secondary psychological condition and the applicant’s entitlement to weekly compensation.
It is not necessary for the secondary psychological condition to be determined prior to a referral to a Medical Assessor of the physical injury described above. Any secondary psychological symptoms will, however, be relevant to a determination of the applicant’s incapacity during the period of weekly compensation claimed.
Although, consistently with the parties’ submissions, I am satisfied that leave should be granted to the respondent pursuant to s 289A(4) of the 1998 Act to dispute the secondary psychological condition, I will defer consideration of that aspect of the claim and the claim for weekly compensation until receipt of the Medical Assessment Certificate.
The purpose in doing so is twofold. First, this course will avoid any potential conflict between the findings of the Medical Assessor and my own determination as to the ongoing effects of the injuries and consequential condition found by me. It will also provide the respondent with a further opportunity to investigate the allegation of a secondary psychological condition in order to avoid any procedural unfairness as claimed.
The matter will be listed for further teleconference upon receipt of the Medical Assessment Certificate to deal with the outstanding disputes.
SUMMARY
Award for the respondent with respect to the allegation of injury to the lumbar spine.
Award for the respondent with respect to the allegation of injury to the right knee.
Award for the respondent with respect to the allegation of a consequential left hip condition.
The applicant sustained an injury to the left hip pursuant to ss 4(a), 4(b)(ii) and 9A of the 1987 Act on 1 August 2018.
The applicant sustained a consequential condition affecting the lumbar spine as a result of the injury on 1 August 2018.
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 1 August 2018
Body parts: Left lower extremity (knee and hip)
Lumbar spine (consequential condition)
Method: Whole Person ImpairmentThe materials to be referred to the Medical Assessor are to include the ARD and all attachments, the Reply and all attachments, the documents attached to the Application to Admit Late Documents lodged by the applicant on 23 July 2021 and the documents attached to the Application to Admit Late Documents lodged by the respondent on 4 August 2021.
Leave granted to the respondent pursuant to s 289A(4) of the 1998 Act to dispute liability in respect of the alleged secondary psychological condition.
Consideration of the claim of a secondary psychological condition and the claim for weekly compensation to be deferred until receipt of the Medical Assessment Certificate.
The matter to be listed for further teleconference upon receipt of the Medical Assessment Certificate.
The respondent to pay the applicant’s reasonably necessary incurred s 60 expenses in respect of the left knee and left hip injury and consequential lumbar condition upon production of accounts, receipts and/or valid Medicare notice of charge.
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