Richardson v Toll Express Parcels

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Richardson v Toll Express Parcels [2021] NSWPIC 155
APPLICANT:	John Richardson
RESPONDENT:	Toll Express Parcels
MEMBER:	Michael Wright
DATE OF DECISION:	1 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Whether proposed high tibial osteotomy and ACL reconstruction surgery is reasonably necessary as a result of injury; injury disputed; sections 4(a) and 9A of the 1987 Act considered; Murphy v Allity Management Services Pty Ltd and Sutherland Shire Council v Baltica General Insurance Co Ltd considered regarding material contribution; Kooragang Cement Pty Ltd v Bates and Comcare v Martin regarding common sense approach to causation; Diab v NRMA and Rose v Health Commission (NSW) considered regarding reasonably necessary; Held- found proposed surgery reasonably necessary as a result of the subject injury.
DETERMINATIONS MADE:	1. The Commission finds that the applicant suffered an injury within the meaning of section 4(a) and section 9A of the Workers Compensation Act1987 (the 1987 Act) in the course of his employment with the respondent on 10 August 2020. 2. The surgery proposed by Dr Brighton, being a left high tibial osteotomy and arthroscopy, and if required, a further ligament (ACL) reconstruction, (the surgery), is reasonably necessary as a result of the injury on 10 August 2020. 3. The respondent pays, pursuant to section 60(5) of the 1987 Act, the costs of and associated with the surgery.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr John Richardson (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery proposed by Dr Brighton as a result of injury on 10 August 2020 in the course of his employment with Toll Express Parcels (the respondent).
The section 78 notice dated 25 September 2020 disputed that the applicant had any entitlement to hospital treatment and surgical treatment and related expenses pursuant to section 60 of the 1987 Act. The respondent disputed causal factors and mechanism of injury and asserted that the applicant’s left knee simply “gave away” on 10 August 2020. The respondent also disputed that the need for a revision anterior cruciate ligament reconstruction of the left knee is reasonably necessary treatment.
The section 78 notice dated 25 September 2020 relevantly disputed that the applicant had a work-related left knee injury as defined by section 4 (a), section 4 (b) (ii) and section 9A of the 1987 Act. The section 78 notice also disputed that the need for any medical and treatment related expenses, hospital and surgical treatment was reasonably necessary for the left knee injury.
The section 287A review decision of the respondent dated 6 January 2021 confirmed the denial of liability for the left knee injury with reference to the opinion of Dr Nair, a detailed review of the CCTV footage, and a rejection of the opinions of Dr Brighton and Dr Habib on the basis of inconsistencies in the histories provided to both doctors.

PROCEDURE BEFORE THE COMMISSION

At the conciliation and arbitration hearing on 21 April 2021, the applicant was represented Mr McEnaney of counsel, instructed by Ms Basal, solicitor, and the respondent was represented by Mr Jones of counsel, instructed by Ms Bauer, solicitor.
The ARD incorrectly referred to a date of injury of 24 August 2020, although the incident in question was well recorded in the documents before me as 10 August 2020. There was no issue in this regard and the matter proceeded on the basis of injury said to have happened on 10 August 2020.
Injury to the right shoulder on 10 August 2020 was not in dispute. The respondent conceded that it had accepted liability for the right shoulder injury, but did not concede that such acceptance prevented it from disputing injury to the left knee.
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)    ARD and attached documents;
(b)    The reply and attached documents, and
(c)    Application to Admit Late Documents dated 24 March 2021.

Oral evidence

There was no application for leave to give oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

The statements

The applicant provided statements dated 29 September 2020, 9 November 2020 and 24 March 2021. He said that he commenced employment with the respondent in about September 2018 on a full-time basis.
In his statement dated 29 September 2020, the applicant said that his duties included the operation of a forklift and movement of freight onto and off trucks and trailers as well as moving freight around the depot as required. He said that he was also required to open trailer curtains as well as closing them and he is required to move gates from trailers which are normally made of metal and can weigh various amounts depending on the metal used to construct the gates. He said that he had a second job with another employer but since the accident he had not been able to work with them.
The applicant stated that on 10 August 2020 at about 5:45 AM he sustained injury of the Eastern Creek site of the respondent. He said that he recalled that he was opening the curtain with a fellow worker and when they opened the curtain there were straps everywhere on the ground in what he described as a tangle. He said that he was pulling the curtain and he got his foot caught in the strapping that was on the floor and he twisted his left knee a little bit and he thought he had just jarred it and he was rubbing it and limping a bit before he reported it to the foreman.
The applicant referred to his previous injuries and surgeries in the left knee. He said that he had a previous injury to his left knee when he trod on a pallet and it snapped when he was working with Startrack. He had another injury prior to that at Startrack when he slipped on some paper and he clipped a pallet. He said that he had had multiple surgeries to his left knee, one when he was 19 arising from playing sport, and the other two with Startrack.
In his statement of 9 November 2020, the applicant provided greater detail in respect of his previous medical conditions and injuries. He said that he had a graft procedure on his left knee following injury in about 2001 while playing soccer and he fully recovered from that injury and had no continuing impact on his capacity to work. He stated that he had a knee reconstruction following injury to his left knee in about 2010 when he trod on a pallet and it snapped. He stated that he fully recovered and the injury had no continuing impact upon his capacity to work. He said that he had a further knee reconstruction following injury in about 2013 to his left knee as a result of slipping on paper at work. He stated that he fully recovered from this injury and had no continuing impact upon his capacity to work.
He stated that on the day of the subject injury, he was working with his colleague Mr Nissan. He described the trailer curtain as being very heavy and difficult to open and manoeuvre and as a result he had to pull extremely hard in order to open the curtain. He said that as he was pulling the curtain with both his hands he lost his footing as he was caught in a tangle of strapping which was on the ground and as a result he fell beneath the trailer, twisting his left knee and striking his left knee on the ground under the trailer. He said that he immediately felt sharp pain in his knee and an ache in his right shoulder.
He consulted his GP at the Eastern Creek Occupational Medical Centre, Dr Sibanda. He said he told the GP that he had fallen while pulling a truck curtain at work and had twisted his knee. He said at the time he did have pain in his right shoulder but he thought it would resolve on its own. He was referred for an MRI scan of his left knee on 12 August 2020. He was referred by another GP at the Eastern Creek Occupational Medical Centre to Dr Roger Brighton, orthopaedic surgeon. He stated that he explained to Dr Brighton that he had twisted his left knee at work when he and a colleague had pulled a truck curtain at the same time. He was referred for physiotherapy. He said that the physiotherapy helped somewhat with the strength of his left knee but he continued to suffer from weakness and pain in the left knee. He said that he continued to suffer from severe pain in his left knee and right shoulder with difficulties with walking or bending and with stiffness and straightening his leg. He said that Dr Brighton recommended surgery to his left knee in the form of anterior cruciate ligament reconstruction. The applicant said that he agreed to go ahead with the proposed surgery.
In his statement dated 24 March 2021, the applicant provided comment and his explanation as to the CCTV footage. The applicant said that at the relevant time in the footage he and Mr Nissan were pulling hard at the curtain of the truck and the applicant was looking upwards at the curtain in doing so and as they were pulling the applicant lost his footing when it got caught in a tangle of strapping which is on the ground. He said that in the footage you can see that his legs came out from under him and that is when he fell beneath the trailer, twisting his left knee and striking it on the ground underneath the trailer. He also said that at the relevant point in the footage you could see him limping because of the pain in his knee and he attempted to stretch his knee. Other than the question of the strapping being on the floor, which will be dealt with below, the observations and explanation of the applicant in this regard are in accordance with my viewing of the CCTV footage.
The applicant also said that prior to the incident he was fit and his knee felt completely stable. He said he did not have any cracking or creaking and he could bend his left knee fully. He said he was very active and worked full-time on unrestricted duties and he would often play with his children and regularly attend the gym and he had no issues with completing any household chores. He did not regularly take any form of analgesics or painkilling medication. He said that after the accident his left knee was very unstable and in constant pain and he is constantly compensating with his right leg by putting all his weight on that knee and leaning towards that side. He said that has now noticed cracking and creaking in his left knee that was not there before the accident. He also has reduced flexibility and movement in the knee, does not attend the gym and struggles with household chores, shopping and driving. He takes analgesics and painkilling medication.
The applicant also provided a statement of Mr Nissan dated 22 October 2020. Mr Nissan said that in order to access the freight they were required to open and close the trailers curtains. Mr Nissan said the trailer curtains were very heavy and were often difficult to open and would become stuck. He said that as a result they would have to pull hard in order to open them. Mr Nissan said that on 10 August 2020 he was working with the applicant to open the curtains of a double trailer that was located in the main shed of the respondent’s Eastern Creek site. He said that the incident occurred when the applicant and he were pulling hard on the trailers curtain that had become stuck and as they were pulling the applicant lost his footing and fell beneath the trailer and struck his left knee. Mr Nissan said that he immediately noticed that the applicant was in pain and as he got up he looked uncomfortable and was limping but tried to continue with work and Mr Nissan told the applicant to stop and report the injury. In response to the insurer’s contention that the applicant did not fall but rather his knee gave way, Mr Nissan said that the applicant fell as a result of pulling on the curtains as he was close to the applicant and he saw him lose his footing.
The respondent provided a statement of Mr John Lambe dated 22 September 2020. He said that the initial report of the injury on 10 August 2020 that he received was that the applicant fell on his knee after tripping on a strap and Mr Lambe believed that this was noted in the incident report. Mr Lambe said after being informed of the incident he reviewed the CCTV footage and from viewing that footage he was not able to identify the applicant falling over as described. He said that his review of the footage was that it looked like nothing happened. He said he didn’t see the applicant or anyone else falling and hitting the ground or his knee hitting the ground. Mr Lambe said that as far as he was aware the applicant reported the incident to his foreman soon after the incident and was sent to the company doctors across the road when they opened for medical assessment.

Dr Brighton

Attached to the ARD were a number of treating and medicolegal reports of Dr Brighton.
In a report dated 27 May 2011, Dr Brighton provided a history of a first ACL reconstruction at age 18 which apparently lasted well up until an accident in May 2010, following which he had a revision ACL reconstruction in November 2010 and apparently hadn’t fully recovered since. He noted an MRI scan done recently showed complete disruption of the revision graft with implants in situ. His opinion was that he needed a revision-revision “right” knee ACL reconstruction and “as we are all out of hamstrings” he favoured using a LARS ligament (synthetic graft).
In a report dated 30 May 2014, Dr Brighton noted that in summary the applicant injured his knee most recently in a clearly defined incident occurring on or about 10 December 2013. He noted the history of the incident occurring at work on about 10 December 2013 when the applicant caught his foot between pallets causing a twisting mechanism to the joint. He diagnosed a rupture of the previous anterior cruciate ligament graft of the left knee. In Dr Brighton’s view, the last reported incident was likely to have caused the new injury at that time. Dr Brighton noted that the applicant was managing all duties required of him in the workplace and on previous review his level of knee function was satisfactory. It was his opinion that with clear evidence of knee instability only procedure would restore stability and adequate functioning to the knee. Dr Brighton believed that this operation would prevent further joint degeneration and injury to the menisci which results from multiple episodes of instability. Dr Brighton reviewed and commented on the report of Dr Pillemer and noted that in his conclusions Dr Pillemer said that it was certainly possible that the injury in December 2013 could have caused some additional damage to the reconstructed ligament and that it was possible that the ACL tear could have occurred in December 2013.
In a report dated 17 March 2015, Dr Brighton noted that the further procedure comes with no guarantees, particularly considering the repeated unsuccessful attempts to stabilise the knee to date. Dr Brighton believed, however, that the revision surgery gave the applicant the best chance of a stable joint again and was worth doing in a man still in his early 30s.
In a report dated 24 June 2016, Dr Brighton noted that the applicant reported discomfort and a lack of confidence in his knee. Dr Brighton was of the opinion that the reconstruction was clinically intact and that the nature of the reconstruction may be responsible for some of the unusual feeling described by the applicant. Dr Brighton thought that the applicant needed reassurance so he referred him for repeat x-ray and MRI scans with review of the results when available.
In his report dated 8 December 2020, Dr Brighton noted that his association with the applicant went back nearly a decade. He noted the previous history of treatment. He noted some increased degeneration after multiple work-related injuries and surgical procedures. Dr Brighton, however, noted that prior to the most recent documented workplace incident, the applicant had been able to perform the required physical tasks of his employment and now knee instability.
Dr Brighton noted the recent amendment that he made to the recommendation for further surgical procedure. He said that this was made to address an underlying abnormality of the applicant’s anatomy which in hindsight has most likely predisposed him to these repeat injuries and failure of initially successful ligament reconstructions. Dr Brighton stated that this procedure has been recommended to improve the stability of the applicant’s knee and increase the chance of success of any subsequent ligament reconstruction and not to treat arthritic change.
Dr Brighton recorded the current history, as of 25 August 2020, being recurrent pain, swelling and instability of the left knee following a work-related accident on 10 August 2020 in which it was reported there was sudden twisting force imparted to the knee when pulling a truck curtain with a colleague, consistent with the history related to Dr Nair. Dr Brighton noted that the applicant had been working on full physical duties prior to this last incident. Examination was reported to show renewed signs of instability and effusion. MRI of 11 August 2020 was recorded as showing ACL graft rupture, medial meniscal tear, moderate degenerative change and ruptured Baker’s cyst. An EOS scan was noted as showing markedly increased tibial slope. A high tibial osteotomy was recommended to correct the tibial slope.
As to causation, Dr Brighton was of the opinion that the history, signs and MRI findings were consistent with the reported mechanism of injury resulting in rupture of the previous graft and reconstruction.
Dr Brighton was of the opinion that the reported accident of 10 August 2020 should be considered the main contributing factor to the applicant’s injury and disability as he had been able to perform all physical work duties prior to that time.
In relation to the report of Dr Nair, Dr Brighton stated that his recommendation for a high tibial osteotomy as above was made to increase the stability of the applicant’s knee, increase the chance of success of any future ligament reconstruction and ultimately increase the function of the applicant’s injured knee. He was of the opinion that this was an unusual recommendation for an unusual anatomic abnormality which is thought to have predisposed the applicant to repeated injuries and premature failure of previous surgeries. Dr Brighton was of the opinion that the applicant’s knee was put in a position in the reported accident that the previous graft ruptured, resulting in a further episode of instability (acute pain and swelling) and his knee did not “simply give way”.
Dr Brighton was of the opinion that the accident of 10 August 2020 and demonstrated instability are manifestly not the result of osteoarthritis. Dr Brighton noted that whilst there is some degenerative change in the applicant’s knee developing at an earlier age than is usual, as shown on the MRI scan of 11 August 2020, “this is only moderate and consistent with repeated injuries and surgeries as well as further damage from the most recent accident (meniscal tearing). Osteoarthritis does not give rise to knee instability.” In summary, Dr Brighton was of the opinion that the applicant’s injuries were the result of an injury at work which has resulted in the failure of a previous surgical reconstruction, but the applicant has an anatomic predisposition to such injuries for which a further corrective surgical procedure has been recommended.

Dr Brighton recommended a high tibial osteotomy to correct excessive posterior tibial slope with the aim of restoring stability to the applicant’s knee. Dr Brighton noted that it is still possible that the applicant would require a subsequent revision ACL reconstruction if this proves insufficient, but that repeat procedure would therefore have a higher chance of success.
Dr Brighton provided his estimate of fees dated 8 December 2020 for the proposed surgery. The proposed surgery was a high tibial osteotomy and knee arthroscopy and, if a further ligament reconstruction is required, revision ACL. For the high tibial osteotomy and knee arthroscopy the estimate was $6,540, and if the revision ACL is required, the total fees for Dr Brighton were estimated to be $12,757.50, plus an assistant surgeon’s fee charged at 20% of the surgeon’s fee, as well as the anaesthetist and hospital fees.

Dr Habib

Dr Habib, orthopaedic surgeon, provided a medicolegal report to the applicant’s solicitors dated 27 November 2020. Dr Habib noted the previous history of injuries and surgeries to the left knee. He also noted the applicant’s duties as a forklift operator in the employ the respondent prior to the incident on 10 August 2020.
Dr Habib recorded a history from the applicant’s statement that on 10 August 2020 that the applicant along with a fellow worker were opening the trailer curtain, which was very heavy and required two people to open and close it. Dr Habib noted that the applicant and the fellow worker had partly opened the curtain and the strapping used to tie it was lying loose on the ground. Dr Habib noted that the applicant’s left foot got caught in the loose strapping and he lost balance severely twisting the left knee and fell to the ground beneath the trailer and as he fell he also hit the left knee against the ground. Dr Habib noted that the applicant said he felt sharp pain in the left knee and also some discomfort in the right shoulder. Dr Habib noted that the applicant tried to continue but was unable to work because of the pain and swelling of the left knee. Dr Habib noted physiotherapy treatment and referral to Dr Brighton, who recorded the severe twisting injury of the left knee with immediate pain and swelling. Dr Habib noted Dr Brighton’s opinion that the nature of the accident, clinical and imagery findings of an unstable left knee from ACL rupture and that the applicant had been working in physically demanding duties for the previous four years since the last ACL reconstruction and the clearly demonstrated acute injury of the ACL in the said workplace incident of 10 August 2020.
Dr Habib diagnosed traumatic tendinopathy with subacromial impingement of the right shoulder and rupture of the anterior cruciate ligament graft of the left knee and complex medial meniscal tear.
Dr Habib was of the opinion that the applicant at 38 years old is too young to be left with an unstable knee from ruptured ACL and severely damaged/torn medial meniscus. Dr Habib said that this “has been shown to be the case on the MRI scan of the left knee one day after the said incident, which also showed a large joint effusion confirming the injury to be ‘acute’”.
Dr Habib was also of the opinion that
“The presence of excessive lateral tibial slope was most likely making his left knee prone to the ACL injuries, but the fact remains that the said injury resulting in the ACL graft tear took place during the course of his normal duties which he had performed since September 2018. As stated before he cannot be left with an unstable left knee at this age. Repair with autograft, allograft or even artificial craft would need to be carried out to give stability to the knee joint accelerated degenerative wear and tear of the knee joint.
As Dr Brighton has found out the abnormal slope of the upper tibia on the left side. Correction with high tibial osteotomy would need to be the first of the two stage procedure to give him the stable left knee for his remaining or more years of active working life.”
Dr Habib was of the opinion that the applicant’s employment is the substantial contributor to the current left knee and also the right shoulder conditions. Dr Habib was also of the opinion that the recommended treatment by Dr Brighton was necessary and appropriate. Dr Habib also was of the opinion that had it not been for the incident of severe twisting and a fall hitting the knee as recorded in the history, the applicant’s left knee would have remained asymptomatic. In the opinion of Dr Habib, the applicant’s condition is the result of an acute trauma and not osteoarthritis/degenerative disease.
In respect of the treatment proposed by Dr Brighton, Dr Habib was of the opinion that the applicant has an unstable left knee because of acute rupture of the ACL graft and complex medial meniscal tear which would need to be treated with medial meniscectomy and ACL reconstruction. He was of the opinion that in order to make the above as long-term management, correction of the lateral tibial slope would first need to be rectified and in his opinion the proposed treatment is appropriate and necessary.
In relation to the effectiveness of the proposed surgeries, Dr Habib was of the opinion that the ACL is an internal important knee structure that provides stability to the knee and thus the lower limbs. Dr Habib was of the opinion that the applicant is 38 years of age with a similar number of working years ahead and normal daily activities ahead of him. He was of the opinion that to leave the applicant with an unstable knee would be condemning him to a painful, weak and unstable left lower limb which no doubt would result in consequential injuries to the other lower limb and the back, and potions for symptomatic relief.
In relation to the opinion of Dr Nair, Dr Habib observed that Dr Nair convinced himself by repeating osteoarthritis of the left knee in his report for most of the questions asked of him by the insurer. Dr Habib was of the opinion that Dr Nair failed to explain how the applicant was able to work in his normal physically demanding duties up until the said incident and following that incident he could only work in selected duties avoiding straining activities involving the left knee including lifting, carrying and squatting. Dr Habib noted that the imagery on the day after the said incident was reported by Dr Nair to show degenerative changes but also a large joint effusion, excessive medial meniscal tear and ruptured ACL. Dr Habib was of the opinion that the applicant obviously had degenerative changes in the knee prior to the said incident but the large joint effusion would clearly point to a recent trauma.
In further commenting on the opinion of Dr Nair, Dr Habib was of the opinion that
“As is well known, the ACL rupture is mostly accompanied with other intra-articular injuries, quite often the meniscal tear. This is obvious in the said knee MRI dated 11 August 2020 which showed the complex tear involving the anterior horn, body and the posterior horn. The degenerative medial meniscal lesion frequently involves the posterior horn.
I have no doubt that Mr Richardson had pre-existing degenerative changes of the left knee prior to the said incident at work on 10 August 2020, but the incident of the said date at work resulted in tear of the ACL graft, complex tear of the medial meniscus and resultant large joint effusion.”

Professor Hope

Attached to the ARD was a Medical Assessment Certificate of Prof Hope dated 15 May 2015 in respect of a referral for a general medical dispute. Prof Hope assessed whether proposed treatment was reasonably necessary as a result of injury on or about 10 December 2013 and in particular whether the condition of the applicant’s left knee is such that the surgery proposed by Dr Brighton, in the form of an arthroscopy, removal of implants and tunnel grafting, followed by revision cruciate ligament reconstruction, is reasonably necessary as a result of the injury. Prof Hope considered a number of medical reports, including reports of Dr Brighton and Dr Pillemer. He noted a history that on about 10 December 2013 Mr Richardson sustained a left knee injury after tripping on shrink wrap whilst walking between pallets.
Prof Hope summarised the injury on 10 December 2013 as a well described left knee injury which occurred at work resulting in immediate pain and giving way. Examination showed clear signs of anterior cruciate graft rupture, confirmed on MRI scanning.
Prof Hope was of the opinion that the previous injury had largely recovered and the new work injury in December 2013 was deemed to be the major causative factor. Prof Hope also referred to the opinion of Dr Pillemer:
“Dr Pillemer’s report of 12.03.14 accurately states ‘once a person has had three anterior cruciate ligament reconstructions on one knee, with the final reconstruction being a LARS ligament, that is predictable that failure can be anticipated at some stage in the future.’ This is absolutely correct and one reason that the LARS ligament is generally used as a last resort. That being said, a specific work-related task caused the graft failure after almost 2 years of full left knee function. Therefore, work remains as the causal factor.”

Clinical records of the Eastern Creek Occupational Medical Centre (the GP)

I will refer to the clinical records where necessary below.

Dr Pillemer

Attached to the ARD and the reply was a report of Dr Pillemer dated 12 March 2014. Dr Pillemer noted that the incident in December 2013
“was relatively minor, and not reported, with no particular symptoms until he noted some swelling a few days later. It is certainly possible then that the injury in December 2013 could have caused some additional damage to his reconstructed ligament but I would very much doubt that this would have been the major cause of the ligament rupture considering the history noted above.

In this particular situation with a LARS ligament, there would not be any ‘bleeding into the joint’ and it is possible that the tear could have occurred at that time with swelling only occurring a few days later.”
Dr Pillemer was also of the opinion that “once a person has had three anterior cruciate ligament reconstructions on one knee, with the final reconstruction being a LARS ligament, that it is predictable that failure can be anticipated at some stage in the future”.

Dr Nair

Dr Nair provided a medicolegal report to the respondent’s solicitors dated 2 November 2020 and supplementary reports dated 6 November 2020 and 11 January 2021.
In his report dated 2 November 2020, Dr Nair recorded a history that on 10 August 2020 the applicant was performing his normal duties when he injured his left knee when he was pulling curtains on the side of a truck trailer. Dr Nair also noted that the applicant said that he also injured his right shoulder. He noted the referral to Dr Brighton and that surgery had been recommended. Dr Nair noted mild right shoulder pain and significantly more intrusive left knee pain with pain at rest and also provoked by walking a few hundred metres. Dr Nair noted the MRI of the left knee of 11 August 2020 with severe chondral where at the peripheral aspect of the medial patellar facet, full thickness chondral fissures of the lateral trochlear surface, complex tear of the medial meniscus, full thickness chondral defect in the posterior weight-bearing surface of the medial femoral condyle, full thickness fissures of the posterior medial tibial plateau, ACL repair with graft rupture, suspected long-standing, large joint effusion and moderate tricompartmental degenerative changes.
Dr Nair was of the opinion that the salience condition in the left knee is osteoarthritis of the left knee. He was of the opinion that the current condition is osteoarthritis of the left knee as opposed to an acute workplace injury.
Dr Nair said that he scrutinized the evidence and his opinion remained unchanged that the salient condition is left knee osteoarthritis which is not related to an acute incident at work.
Dr Nair was of the opinion that the conditions in the left knee are degenerative in nature and that the graft rupture is chronic. He was of the opinion that the findings on the left knee MRI are not related to the workplace injury, that the conditions are degenerative in nature and that the graft rupture is chronic. Dr Nair disagreed that employment with Toll was a substantial contributing factor to the left knee condition. He was of the opinion that instability of the left knee is not a clinically relevant condition in the presence of tricompartmental osteoarthritis.
In his supplementary report of 6 November 2020, Dr Nair was of the opinion that the high tibial osteotomy as recommended by Dr Brighton is a reasonable procedure, although it was the opinion of Dr Nair that the requirement for such surgery is not consequent to a workplace injury and accident.
In his supplementary report dated 11 January 2021, Dr Nair reviewed the historical reports of Dr Brighton, as well as the medicolegal report of Dr Brighton dated 8 December 2020 and his treating reports subsequent to the incident of 10 August 2020, extensive radiological reports both historical and current, and the medicolegal report of Dr Habib dated 27 November 2020, among other documents. Dr Nair disagreed with the opinion of Dr Habib and Dr Nair confirmed his opinion that there is no evidence of a work related injury and that the principal cause of the symptoms in the applicant’s left knee is left knee osteoarthritis on the basis of his clinical examination and the MRI scan of 11 August 2020 revealing significant chondral fissuring and damage consistent with osteoarthritis.
Dr Nair was also of the opinion that whilst Dr Brighton’s reasoning in changing the tibial slope appears sound, he remained of the opinion that the principal cause of the symptoms was due to left knee osteoarthritis. Dr Nair reviewed the report of Dr Brighton dated 30 May 2014 and Dr Nair indicated that it was his opinion that in his experience an individual who undergoes multiple knee surgeries will not achieve normal knee function. In response to a request to review the various reports of Dr Brighton and comment, Dr Nair said that he was
“unable to empirically comment on the historical status of Mr Richardson’s left knee having only had the opportunity to examine Mr Richardson on the one occasion in November 2020. It is however highly likely that the frequency of injuries was due to underlying chondral damage.”
Dr Nair confirmed his previous opinion that the employment with the respondent was not a substantial contributing factor, nor was it the main contributing factor, to the left knee condition. He reiterated his opinion that the symptoms are due to left knee osteoarthritis as opposed to instability and that the osteoarthritis has developed over decades and this is the natural history of the condition. He confirmed his opinion that there was no acute left knee injury on 10 August 2020.

CCTV footage and still photographs

The respondent provided CCTV footage and still photographs with reference to the incident on 10 August 2020. The applicant provided his commentary in respect of that footage in his supplementary statement dated 24 March 2021. I will refer to the CCTV footage and still photographs below.

Reasons and decision

In summary, the respondent’s case was that on 10 August 2020 the applicant’s knee gave way due to the pre-existing condition of his left knee and there was no injury within the meaning of section 4 of the 1987 Act. The respondent also submitted that the strapping or items that were said by the applicant to be on the ground had been moved prior to the incident. The respondent also submitted that the clinical record of the GP on the day of the incident did not refer to strapping on the ground. The certificate of capacity that was issued for the same day, and also signed by the applicant, did not refer to strapping or items on the ground. The respondent also submitted that the statement of Mr Nissen also did not refer to strapping or items on the ground. The respondent submitted that the CCTV footage, together with a still photograph taken from that footage, showed that there was no strapping or items on the ground where the applicant fell. The respondent submitted that the Commission would not be satisfied on the ground, upon which the applicant tripped or lost his footing. The respondent submitted that it should be found that the applicant’s knee simply gave way at the time of the incident, and that the knee giving way was a result of prior injuries and a pre-existing condition, having regard to the medical evidence.
I will first consider the dispute as to whether the applicant should be accepted when he said that his foot got caught in the strapping that was on the ground and he lost his footing.
After closely reviewing the CCTV footage and the still photographs of the moment of the applicant losing his footing and thereafter when he was stretching his leg, I note that the incident in question appeared to be some distance from the camera and off centre, in an area of the picture that I would regard as being not in the foreground or in the middle of the picture. The camera angle did provide a view of the side of the truck and the activities of the applicant and his co-worker, but it was an acute angle such that it was difficult to see with good vision what was on the ground both in the area adjacent to the truck and the area just under the truck, or at least in line with the edge of the truck where the applicant put his feet in walking along the side of the truck. Although the lighting in the large building was good, it was less well lit next to the truck and there was an area of shadow immediately before the point where the applicant appeared to lose his footing. The applicant’s co-worker was also working on the same task and he was closer to the camera. At the point where the applicant lost his footing, the body of the co-worker obscured the lower part of the applicant’s body and his feet.
I was able to see, shortly before the incident, that one of the workers appeared to pick up something from the ground close to the point where the accident took place, but I could not see what it was. It was not clear as well whether the worker left anything on the ground. I was also unable to discern whether or not there was a tangle of strapping that was on the ground, at least at the point, or shortly before that, where the applicant appeared to lose his footing.
What is clear to me from the CCTV footage is that the applicant, while he was pulling on the curtain, had a sudden loss of footing in which his legs went under the tray of the truck and he held onto the curtain of the truck as he was falling.
The respondent also submitted that the applicant’s version of events is further cast into doubt and should not be accepted as the CCTV footage showed that he removed something from the ground immediately before the incident and then chose to ignore it when the incident occurred, and at the same time his fellow worker who was moving the curtain at the front, that is closest to the camera, did not trip. I do not accept this submission as I could not see from the footage what was being picked up and whether all of the items that were on the ground were picked up at the point where the applicant fell. His fellow worker may not have fallen for other reasons, such as that he did not step on strapping, which does not indicate one way or the other as to whether the strapping was there.
The CCTV footage, and the still photograph, in my opinion are not inconsistent with the account of the accident that has been given by the applicant. Indeed, the CCTV footage confirms that he was pulling on the curtain and there was a sudden fall in which the applicant’s legs suddenly went under the tray of the truck. In my view, the CCTV footage is consistent with the applicant losing his footing suddenly.

The respondent pointed to other documents which it submitted made no mention of the strapping on the ground and hence supported its submission that the applicant did not lose his footing when he stepped on strapping that was on the ground. The respondent submitted that the statement of Mr Nissan made no mention of strapping on the ground, nor did the clinical note on the day in question, the medical certificate that was issued and the incident notification form. I note that the latter document was not created by the applicant, rather it was created by a supervisor in the employ of the respondent noting the report of the applicant.
The applicant consulted his GP, Dr Sibanda, on 10 August 2020. The clinical note of that consultation recorded that “John lost his footing whilst pulling a truck curtain and fell and jarred his left knee”. The medical certificate issued by Dr Sibanda dated 10 August 2020 in my view repeats the clinical note verbatim “John lost his footing whilst pulling a truck curtain and fell and jarred his left knee”. However, in my view what must be kept in mind is the nature of clinical record keeping in a busy medical practice. This is the context for considering the lack of reference to an element of the incident that is maintained by the applicant, that is the applicant stepping on the strapping and losing his footing. This apparent inconsistency should be viewed with caution, as per Basten JA in Mason v Demasi [2009] NSWCA 227. For treatment purposes, in my view a reference to stepping on strapping is not necessary in the clinical record. I decline to assume that the clinical record is complete on this point. I do not regard the clinical record relied upon by the respondent as being sufficient to undermine what the applicant says happened, nor do I accept that it undermines the applicant’s credibility. I do not accept the respondent’s submissions in that regard.
The statement of Mr Nissan did not refer to any strapping on the ground. However, in my view this does not undermine what the applicant said happened in the accident. Mr Nissan referred to pulling on the heavy curtain, which confirmed one part of the applicant’s account of the accident, Mr Nissan did not refer to the entirety of the circumstances, such as the picking up of items from the ground, and so I am cautious in considering whether his statement is a complete account. He said that he witnessed the applicant losing his footing. The applicant said that he was looking up at the curtain while he was pulling it when his foot become caught in the strapping and the accident happened quickly. From his statement and from the CCTV footage it seemed to me that Mr Nissan was engaged in the heavy pulling of the curtain when the accident suddenly happened. In my view Mr Nissan’s statement should be accepted for confirming that the applicant was pulling on the heavy curtain when he lost his footing. Mr Nissan did not say that pulling on the curtain was the only reason for the accident. He said that he witnessed the applicant lose his footing but he did not say that he observed the applicant’s feet at the moment of, or shortly before, the accident. He did not say that the area where the applicant fell was clear of objects on the floor. I do not accept that his statement undermines the applicant’s account of events.
The respondent also submitted that the applicant’s left knee condition at the time of the subject accident was a continuation of a prior condition and not an injury caused by losing his footing. This submission was directed at undermining the applicant’s evidence as to the injury, and hence supported the submission that no such injury took place; and it was also directed at the submission that employment was not the main contributing factor to a disease condition of the knee.
The respondent submitted that there was at least one history where no specific injury resulted in left knee symptoms. This was a reference to the history taken by Dr Pillemer of no specific injury or incident on a date of injury recorded as 28 January 2014 although the applicant was reported as saying he actually injured his left knee in December 2013 when he tripped over some shrink wrap at work. It was the December 2013 injury that was recorded by Prof Hope in his Medical Assessment Certificate dated 15 May 2015. I do not accept this submission. Indeed Prof Hope, while agreeing with Dr Pillemer that a failure of the anterior cruciate ligament reconstruction can be anticipated at some stage in the future, was also of the opinion that a specific work-related task caused the graft failure after almost two years of full left knee function and therefore work remains as the causal factor.
The respondent also submitted that the reports of Dr Brighton of 2015 and 2016 indicated ongoing problems with the left knee. In this regard the respondent pointed to a report of Dr Brighton dated 24 June 2016. However, as noted in that report, this was an examination about seven weeks after the revision left ACL reconstruction.
The respondent submitted that in respect of the report of Dr Brighton dated 8 December 2020, in which it was noted that prior to the incident of 10 August 2020 the applicant had been able to perform the required physical tasks of his employment and now has renewed signs of knee instability, that this history of working normally was the case prior to the previous claim in respect of the December 2013 injury.
I do not accept the opinion of Dr Nair. It was his opinion that there was no evidence of a work-related injury. This was on the basis of his history that the applicant was pulling curtains on the side of a truck trailer injuring his left knee. Dr Nair said that he “scrutinised the evidence”, although there is no description of the material to which he referred until his supplement report of 11 January 2021. That report referred to “file material”, including the statement of the applicant dated 23 September 2020 (signed 29 September 2020) and the reports of Dr Habib dated 27 November 2020 and Dr Brighton dated 8 December 2020, as well as multiple imaging reports and treatment reports of Dr Brighton from both before and after 10 August 2020. On the basis of his view that there was no work-related injury, Dr Nair was of the opinion that the principal cause of symptoms in the left knee was left knee osteoarthritis based on his clinical examination and review of the MRI scan of 11 August 2020. Dr Nair did not report a history of a loss of footing, and hence was not able to engage with the consideration as to the effect, if any, of the incident of 10 August 2020.
Also, as noted by Dr Habib, Dr Nair did not account for the joint effusion that was in the MRI scan report of 11 August 2020, nor did Dr Nair account for the history of the applicant working in normal physical duties without difficulty for four years before the incident of 10 August 2020. Both Dr Habib and Dr Brighton were of the view that this was a significant factor to consider when concluding that there was an acute injury on 10 August 2020, that is following the incident the applicant became symptomatic and functionally restricted.
I accept the opinions of Dr Brighton and Dr Habib. They are both based upon considerations of an accurate history of the incident on 10 August 2020, together with consideration of the history of prior injury and surgical procedures on the left knee.
I do not accept the respondent’s submission that the applicant’s left knee gave way on 10 August 2020. Dr Brighton in his report of 8 December 2020 was of the opinion that the applicant’s knee did not “‘simply give way’”, but was put in a position in the reported accident that the previous graft ruptured, resulting in a further episode of instability (acute pain and swelling).” The medical evidence in support of the proposition, that the left knee gave way without there being a loss of footing on stepping on strapping on 10 August 2020, is in my view unpersuasive. Dr Nair noted the report of Dr Pillemer of 12 March 2014 and commented only that “his logic appears sound and cogent and consistent with my opinion”, without otherwise making specific comment. Dr Nair, in response to the question as to whether it is probable that the applicant had an unstable left knee that would predispose him to having the same or similar injury anyway at about the same time or at the same stage in his life regardless of the alleged contribution of employment, said “it is my opinion that the symptoms are due to left knee osteoarthritis as opposed to instability”.
I find that on the balance of probabilities the applicant was pulling the curtain of a trailer and he lost his footing, when his foot got caught in strapping that was on the ground, and he fell beneath the trailer while holding onto the curtain and twisted his left knee.
The history taken by Dr Brighton in his treating report of 25 August 2020 was of a sudden twisting force applied to the left knee when he and a colleague were pulling a truck curtain. Although not recording the history of stepping on straps and losing footing, this was a history of a sudden twisting force to the left knee at work in the circumstances of pulling the curtain on the truck. In my view, this is a fair climate for Dr Brighton to form the basis for his opinion. He was of the opinion that the accident resulted in rupture of the previous graft and reconstruction. Dr Brighton rejected the proposition that the applicant’s knee “simply gave way”. He was of the opinion that the accident was the main contributing factor to the applicant’s injury.
The history taken by Dr Habib was consistent with the applicant’s evidence. Dr Habib diagnosed a rupture of the anterior cruciate ligament graft of the left knee and complex medial meniscal tear. He was of the opinion that the applicant’s employment is the substantial contributor to his current left knee condition.
I have not accepted the opinion of Dr Nair on the basis that he did not take a history of an incident at work in which the applicant at least twisted his knee and hence found that there was no evidence of an acute injury at work. I also do not accept his opinion that the applicant’s left knee condition is unrelated to his employment due to the underlying osteoarthritis condition. In my view, Dr Nair has not accounted for the twisting incident and the rupture of the ligament, and, as noted by Dr Brighton, that the applicant was performing his normal duties prior to the incident and has not been able to do so since that time. In any event, Dr Nair did not provide a specific response, as noted above, to the issues contained within section 9A. He provided a generalised response pointing to the osteoarthritic condition. However, this was rejected by Dr Brighton in his opinion that the accident of 10 August 2020 and the subsequent demonstrated instability are manifestly not the result of osteoarthritis. Dr Brighton said that osteoarthritis does not give rise to knee instability. Dr Brighton was also of the opinion that there is some degenerative change in the applicant’s knee as documented in the most recent MRI scan on 11 August 2020, this is only moderate and consistent with repeated injuries and surgeries as well as further damage, meniscal tearing, from the accident of 10 August 2020.
As I have not accepted the opinion of Dr Nair, there is no other medical opinion relied upon by the respondent that suggests that the incident on 10 August 2020 was not a substantial contributing factor to the diagnosed condition, other than the historical report of Dr Pillemer, which in my view was dealt with by Prof Hope. The report of Dr Pillemer was met with approval by Dr Nair, but the reasoning of Dr Nair has not been accepted in the context of the opinions of Dr Brighton and Dr Habib. I place no weight on the opinion of Dr Pillemer in this matter and in any event it was produced several years before the injury of 10 August 2020 and before the history of the applicant working in normal physical duties for about four years until the subject injury.
I find that the applicant sustained injury, within the meaning of section 4 (a) of the 1987 Act, to his left knee on 10 August 2020 in the course of his employment with the respondent.
In terms of section 9A, the incident resulted in a twisting injury of the applicant’s left knee, and the applicant’s medical evidence was in no doubt that this was the cause of the injury to his left knee. Both Dr Brighton and Dr Habib noted that the applicant worked in his normal physically demanding duties until the accident and was not able to return to those duties after the accident. There was no medical opinion that the injury to the applicant’s left knee would have happened anyway at about the same time or stage of the applicant’s life. The report of Dr Pillemer provided an opinion that considering the applicant’s age at that time it was predictable that at some stage the ligament would have failed in any event as happened at that time. Although in general Prof Hope agreed with Dr Pillemer, he did not agree in the specific instance of the 2013 injury when a specific work-related task caused the graft failure. Dr Brighton and Dr Habib took a detailed account of the applicant’s prior left knee condition, injuries and surgeries in reaching their conclusions that the accident on 10 August 2020 was a substantial contributing factor to the injury to the applicant’s left knee. The applicant’s employment with the respondent on 10 August 2020 was a substantial contributing factor to the injury.
The respondent in its submissions acknowledged that if injury was found then the test would be that injury needs to be no more than a contributing factor to the need for surgery. This refers to causation as expressed in section 60. This is founded upon the principles that were identified in the decision of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, with the causation test being one of material contribution as discussed in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716). It is necessary to establish that the injury of 10 August 2020 materially contributed to the need for the surgery as proposed by Dr Brighton.
The respondent submitted that the common sense approach to causation, as indicated in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), should have regard to the statutory context, and should be approached with caution having regard to the decision in Comcare v Martin [2016] HCA 43. The context in which a common sense approach to causation is placed is within section 60 of the 1987 Act, that is whether the need for the proposed surgery is reasonably necessary as a result of the incident of 10 August 2020.
The causal chain in this case was that the applicant did his normal activities of living and worked in his employment in physical duties without restriction or pain in his left knee for a period of four years prior to the incident of 10 August 2020, such incident being regarded by both Dr Brighton and Dr Habib as resulting in a significant change in symptoms and pathology, including a ligament rupture, since that time. I have found that the applicant sustained injury on 10 August 2020 in the manner described above. This is the chain of causation which in my view establishes that the injury of 10 August 2020 has resulted in the need for the surgery as proposed by Dr Brighton.
The respondent conceded that if it were to be found that injury on 10 August 2020 resulted in the need for the surgery proposed by Dr Brighton, then it could not dispute that such surgery was reasonably necessary. Dr Nair thought it was appropriate. The surgery itself is described by Dr Brighton as being in two stages, with the first stage being the high tibial osteotomy and arthroscopy, and the second being the revision ACL reconstruction, if necessary. The purpose of the high tibial osteotomy was provided by Dr Brighton, as noted above. In any event, the matters outlined in Diab v NRMA Ltd [2014] NSWWCCPD 72, with reference to the authority of Rose v Health Commission (NSW) [1986] NSWCC 2, are satisfied. The opinion of Dr Brighton and Dr Habib, as well as that of Dr Nair, confirm that the treatment proposed is appropriate. The opinion of Dr Brighton and Dr Habib also confirm that the proposed surgery will alleviate the consequences of the injury. Cost was not in dispute and in any event it is appropriate as Dr Habib has noted in the context of the applicant’s age and the length of his remaining working life. The applicant has undergone alternative treatment including physiotherapy as well as taking pain killing medication.
Some period of discussion and submissions was devoted at the arbitration hearing to the question as to any consequence that may be visited upon the respondent, in terms of liability for the left knee condition, for its decision to accept liability for injury to the right shoulder as a result of injury on 10 August 2020. It is not necessary to decide this issue as I have found in favour of the applicant without recourse to this issue.
I find that the surgery proposed by Dr Brighton, that is the left high tibial osteotomy and knee arthroscopy and, if further ligament reconstruction is required, revision ACL, is reasonably necessary as a result of the injury on 10 August 2020.

[2021] NSWPIC 155

1 June 2021