Riddle v The Star Entertainment Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Riddle v The Star Entertainment Group Ltd [2022] NSWPIC 339
APPLICANT:	Philip Olu Riddle
RESPONDENT:	The Star Entertainment Group Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	29 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant seeking the cost of a total knee replacement, claiming that the injury of October 2001 was a material factor to the need for surgery; whether evidence sustained finding of aggravation; whether deterioration since receiving awards sufficient to establish link; Held – a temporal gap of three years was unexplained by either the applicant or the medical experts; evidence of both treating surgeon and medico-legal expert confused and contradictory; award respondent.
DETERMINATIONS MADE:	1. The need for surgery has not been caused by the subject injury of 29 October 2001. 2. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Philip Olu Riddle, the applicant brings an action pursuant to s 60(5) of the Workers Compensation Act 1987 (1987 Act) for a declaration that proposed surgery in the form of a total right knee replacement is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) does the need for surgery arise as a result of the subject injury?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was heard by way of video conciliation and arbitration hearing on 23 May 2022. The applicant was represented by Mr Bill Carney of counsel instructed by
Mr Sasho Petrovski of Messrs PK Simpson & Co and the respondent was represented by
Mr Tom Grimes of counsel instructed by Ms Belinda Walsh from Messrs Hall & Wilcox.
Ms Victoria Barham appeared on behalf of the respondent as self insurer.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD);
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents containing further report from Dr Miniter.

Oral evidence

No application was made for oral evidence.

FINDINGS AND REASONS

As can be seen this is a single issue matter regarding whether the need for surgery, which is not challenged, arises out of the admitted injury sustained by the applicant, which is the subject of the dispute.
Mr Riddle was born in 1953. Mr Riddle was employed as a croupier with the respondent and on or about 29 October 2001, stumbled when he was coming down a set of stairs, twisting his right knee as he fell forward.
It is common ground that Mr Riddle was asymptomatic at the time that he injured his knee and the evidence shows that he resigned from working with the respondent in 2002 or 2003 as he was unable to stand for extended periods of time.
Since 2008 he has been employed as a Court Officer.

Prior actions

On 8 July 2005 a s 66A agreement was registered which reflected, amongst other things, an agreement that Mr Riddle had a 7.5% loss of use of the left leg at or above the knee.
I assume the reference to the left leg was an inadvertent error, as there is no reference within the evidence to a left knee problem at that time.
Mr Riddle brought further proceedings for lump sum compensation and was assessed by an Approved Medical Specialist (AMS), Dr Roland Middleton, on 27 September 2010. He certified that there had been no increase in the loss of use of the right leg. Mr Riddle appealed to a Medical Appeal Panel from the decision of the AMS and on 24 January 2011 the Panel confirmed the MAC. A Certificate of Determination issued on 28 February 2011 which stated:[1]
“The Commission notes:
1.     The Applicant suffers 7.5% permanent impairment of the right leg at or above the knee resulting from injury on 29 October 2001.
2.     The Applicant was compensated for 7.5% permanent impairment of the right leg at or above the knee resulting from injury on 29 October 2001 by way of Agreement to Discontinue Proceeding in matter 17905-03 dated 8 July 2005.
The Commission determines:
3.      The Applicant suffers 0% further permanent impairment of the right leg at or above the knee resulting from injury on 29 October 2001.”
[1] ARD p 54.

Statement

In his statement of 18 March 2022 the applicant stated:[2]
“20. On 8 July 2005, I was awarded permanent impairment compensation of $7,975 in respect of 7.5% loss of use of my left leg at or above my knee and 5% loss of sexual function.
21. My condition further deteriorated following that settlement.
22. I continued to consult Dr Nayef Kanawati, general practitioner, for treatment and pain relief medication.”
[2] ARD p 2.
This statement in context has the potential to be misleading. Mr Riddle did not consult
Dr Kanawati until June 2008.
Further, I note that, Mr Riddle said:
“23. On 20 September 2010, I was examined by Dr Roland Middleton, Approved Medical Specialist.
24. Following that assessment, I was awarded $28,225 for permanent impairment. I was informed that I had sustained a further 22.5% permanent impairment of my right leg; a further 5% loss of sexual function and 15% permanent impairment of my back. In addition to that, I received compensation of $30,000 for pain and suffering due to those injuries.”
There is no evidence of such an outcome, and the allegation is contrary to the facts before me.
Mr Riddle then said at [25]:
“25. Since my previous awards, my injuries have significantly deteriorated. In particular, I am constantly experiencing severe right knee pain.”

Clinical notes

The clinical notes of the Concord Medical Centre were lodged.[3] They showed that Mr Riddle had been a patient of the Centre since 29 October 2001 when he first attended, complaining of his injured right knee. He continued to attend the practice until 7 April 2005, and entries up to that time recorded complaints of both ongoing knee pain, and back pain. On 11 May 2005 the receptionist noted that Mr Riddle had not attended an appointment made with
[3] ALD p 3.
Dr Peter.

Dr Warwick Bruce

During that time the applicant came under the care of Dr Warwick Bruce, orthopaedic surgeon, who performed an arthroscopy on 15 May 2002. The operative findings were of a grade 4 lesion on the medial femoral condyle, a grade 2 lateral tibial plateau wear and fraying of the lateral edge of the anterior cruciate ligament. Dr Bruce also found degenerative fraying of the popliteus behind the lateral meniscus.
Whilst Dr Bruce thought that the applicant should make a good recovery, he said[4]:
“There are degenerative changes which may increase in the future”.
[4] ARD p 112.
The applicant lodged a number of reports from Dr Bruce, the last being 11 October 2002, when he noted that Mr Riddle was six to eight weeks from surgery and that he had “very little knee discomfort”.[5]
[5] ARD p 110.
In a report of 20 August 2002, Dr Bruce noted the applicant’s complaints of “a lot of thigh pain, buttock pain and lower back pain”.[6] Examination of the knee showed a good range of motion with some tenderness over the lateral popliteal nerve and lateral joint line. Dr Bruce said:
“Opinion and Diagnosis I think this is referred pain from the spine and it may be the original cause of his posterolateral knee pain. I have sent him back to you to send him to a spinal surgeon of your choice.”
[6] ARD p 111.
The applicant said that on 16 April 2004 he was examined by Dr Maxwell, orthopaedic surgeon in Miranda. He was also seen by a urologist, Dr Korbel on 6 July 2004. No reports were lodged from either practitioner, although they were mentioned by Dr Matalani, as will be seen.

Dr Nayef Kanawati

Clinical notes were lodged from Dr Kanawati that were practically illegible, but which showed Mr Riddle had been attending since 21 June 2008 and regularly thereafter up until 13 March 2020[7]. It is difficult to understand why Mr Riddle would use the word “continue” when at the time he was describing, the 2005 complying agreement, he had not then met Dr Kanawati.
[7] ARD p 122 - 165.
On 21 June 2008 Dr Kanawati made the first entry regarding Mr Riddle. The notes were, as indicated, handwritten and difficult to decipher. The entry noted the subject injury of 29 October 2001, and seemed to record a complaint of pain with the right knee, doing the best
I can with the handwriting. Dr Kanawati continued as Mr Riddle’s general practitioner (GP) until 30 March 2020, during which time Dr Kanawati made many handwritten notes which appeared to have covered a plethora of complaints, judging from the volume of notes recorded. Regrettably they were largely indecipherable, but I assume that they noted complaints about Mr Riddle’s right knee from time to time.
Dr Kanawati did refer the applicant to Dr David Manohar, consultant physician and interventional pain physician for management regarding both his back complaints, and his right knee symptoms. Dr Manohar reported on 1 September 2008.[8] As to the right knee symptoms, Dr Manohar said:
“There is pain around the left knee and he tells me it catches and becomes stiff.”
[8] ARD p 228.
I presume Dr Manohar intended to refer to the right knee. A year later, on 28 September 2009, Dr Manohar said:[9]
“He still experiences pain in his right knee and all around it with a catching sensation and he feels the tendons have become stiff.”
[9] ARD p 226.
The next report in chronological order was a medico-legal report from Dr Elias Matalani, consultant occupational physician, dated 22 March 2010, addressed to Mr Riddle’s solicitors.[10]
[10] ARD p 55.

Dr Elias Matalani

Dr Matalani, consultant occupational physician, was asked to report on both Mr Riddle’s right knee and his back, which had also allegedly been injured in the subject injurious event. His report was dated 23 March 2010. Dr Matalani took a history that Mr Riddle’s right knee condition had deteriorated after the s 66A agreement was entered into.
Dr Matalani reported that Mr Riddle was experiencing constant pain in the right knee and that it sometimes locked and gave way. On examination Mr Riddle was observed to be walking with a mildly antalgic gait favouring his right leg. He was unable to squat fully because of pain in his right knee. Dr Matalani said that Mr Riddle’s long term prognosis was guarded and that his condition had gradually deteriorated.
He noted that Mr Riddle had tried to work as a storeman but could not tolerate the requirements of the job as it required prolonged standing and some heavy manual handling activities.
Dr Matalani in discussing the diagnosis said:[11]
[11] ARD P 59.
“His knee symptoms became more intense and he developed locking and giving way
sensations. The latest MRI of his right knee, performed in May 2009, demonstrated
chondral wear ‘down to bone’ along the lateral surface of the trochlear region and
extending over a width of approximately 20mm with subchondral reactive changes
and mild marrow oedema.
The previous MRI of his right knee, performed in 2002, was not available. However,
I note from the supplied report of Dr David Maxwell, dated 16 June 2004, the findings
of the MRI performed on 22 February 2002 was reported as showing ‘no evidence of
meniscal tear, the ligaments were intact but there was some thickening of the
popliteus tendon. There appeared to be no significant articular cartilage lesions.
There was no significant marrow oedema.’
It appears therefore that there was deterioration of the right knee findings and is
consistent with his increase in symptoms.
Mr Riddle confirmed he was asymptomatic prior to the injury on 29 October 2001.
His employment has been a substantial contributing factor to the development of his
current disability.”
Dr Matalani assessed a 15% loss of use of the right leg caused by the injury to the knee.[12]
[12] ARD p 63.
[13] The Workers Compensation Commission, as it was then.
[14] Now, a Medical Assessor.
[15] ARD p 39.
I assume Dr Matalani’s opinion was obtained for the purpose of an application made to the Commission for lump sum payments.[13] Arbitrator Michael Snell (as he then was) remitted the matter to an AMS[14] on 10 September 2010 and on 29 September 2010 a Medical Assessment Certificate (MAC) was issued by Dr Roland Middleton, orthopaedic surgeon.[15]

The MAC

On examination the AMS noted a variable range of motion and that the calves were equal in circumference. There was no effusion in the right knee. In dealing with consistency of presentation, the AMS said:
“Despite the persistent symptoms in the right knee, there are no objective abnormal physical findings…..”
The AMS noted an MRI taken on 26 May 2009:[16]
“ ‘26/5/09 - MRI R knee reported by Dr Markson: This report needs to he read carefully. It states "the patella cartilage appears intact’. It then goes on to state ‘there is chondral wear down to bone along the lateral surface of the trochlear region’. This description is considered to apply to the trochlear surface of the femur. A general comment is ‘chondral wear with extension down to bone along the lateral surface of the trochlear region, where there are subchondral reactive changes. No further significant abnormality identified'.”
[16] ARD p 41.
The summary by the AMS was:
“This claimant may have sustained an injury to the right knee and subsequent arthroscopy demonstrates a Grade 4 change of the cartilage of the medial femoral condyle, the extent of such change not being described. The implication of this description is that of a degenerative disorder affecting the right knee.”
In explaining his calculations, the AMS noted:[17]
“The uncertainty of the report associated with the MRI of the right knee makes this report of uncertain value in determining impairment, especially as the original films were not available for confirmation.”
[17] ARD p 42.
The assessments by the opposing experts were considered by the AMS. Dr Anderson for the respondent had allocated a 5% loss of use of the right leg. The AMS said:[18]
“On 22/3/10 Dr Matalani though that there was 30% loss of use of the right leg at or above the knee and he uses the MRI report of 26/5/09 to infer bone on bone loss of joint space, presumably in the patellofemoral compartment. On reading the MRI report of that date, I am unable to confirm the assessment made by Dr Matalani and therefore allocate a different degree of impairment.”
[18] ARD p 43.
As indicated, the AMS certified no increase in loss of use from the 2005 complying agreement.

Post MAC

In his statement, Mr Riddle said that his “injuries” had “significantly deteriorated,” particularly his right knee pain since his “previous awards”.

Dr Gavin Soo

The applicant’s treating surgeon is Dr Gavin Soo, orthopaedic surgeon. Dr Soo reported to the applicant’s GP on 8 September 2020[19]. He took a consistent history of the injury and subsequent arthroscopy. He noted that Mr Riddle had found alternative employment as a Court officer in 2008 that accommodated his knee pain.
[19] Reply p 5
Dr Soo noted that Mr Riddle was asymptomatic prior to the twisting injury in 2001. He viewed “the MRI scan” which showed tricompartmental osteoarthritis in the knee with subchondral oedema and cystic change to the medial tibial condyle and the trochlear and patella. Dr Soo said:[20]
“As expected his knee has advanced osteoarthritis which is the cause of his ongoing symptoms.”
[20] ARD p 24.
Dr Soo recommended a total knee replacement.
In a subsequent report of 17 August 2021 to Mr Riddle’s solicitors, Dr Soo took a consistent history of the injury and again noted that Mr Riddle was asymptomatic prior to the 2001 twisting incident.[21]
[21] ARD p 98.
Dr Soo noted that history that Mr Riddle’s knee had never been the same. He said that the total knee replacement surgery was necessary as the applicant’s advanced tricompartmental osteoarthritis to the right knee was affecting his normal day to day functioning. He said:[22]
“Prior to his injury in 2001 Philip denies any previous history of pain or injury to the right knee. Thus it is reasonable to conclude that the injury sustained in 2001 whilst at work has either aggravated or accelerated his underlying osteoarthritis to the right knee.”
[22] ARD p 99.

Dr Alexander Woo

The applicant relied on the opinion of Dr Alexander Woo, orthopaedic surgeon, of 5 July 2020 for a medico-legal opinion.
Dr Woo noted that the applicant was referred by Dr Kanawati to Dr Manohar on 1 September 2008 for both the right knee and the back pain symptomatology.
A weight bearing X-ray was carried out on 21 October 2011 by Dr Roger Brighton at the behest of Dr Kanawati. That showed a significantly diminished joint space on the inside, but a joint space remaining nonetheless and a normal lateral patella-femoral compartment.
Dr Woo noted that Dr Brighton was of the opinion that there would need to be a joint replacement in the future.
Dr Woo also noted a review by Dr Edward Graham of 11 April 2017 which confirmed that
[23] ARD p 70.
Mr Riddle was headed towards a knee replacement[23].
On 5 July 2020 Dr Woo reviewed the MRI scans of 22 February 2002, 26 May 2009 and 11 March 2017. Dr Woo also reviewed a CT of the right knee on 15 September 2018 and the weight bearing X-ray of the right knee organised by Dr Brighton.
Dr Woo said:[24]
“Right knee:
Mr Riddle had strain injury to his right knee on 29 October 2001. Arthroscopic findings
on 15 May 2002 showed Grade 4 (most advanced form Grade 1-4) in the patellofemoral
joint. This is in keeping with pre-existing degenerative changes at the age of 48.
The workplace injury aggravated the pre-existing degenerative changes in the right
knee. The degenerative changes had gradually progressed from 2001 to 2020, as
expected in the natural course of the development of knee osteoarthritis at his current
age of 67.”
[24] ARD p 74-75.
Dr Woo advised that Mr Riddle would eventually require a right total knee replacement and said that the right knee injury is likely to deteriorate with age related osteoarthritic changes.
With regard to the question of aggravation, Dr Woo reproduced the following questions, and supplied the answers:[25]
“c) State if aggravation of a pre-existing condition is an issue, and whether the aggravation is temporary or permanent.
There is evidence of pre-existing degenerative changes in the right knee. There was temporary aggravation at the time of the workplace incident on 29 October 2001.
(d) Estimate the likely duration of any temporary aggravation.
The temporary aggravation had ceased.”
[25] ARD p 78.
In a supplementary report regarding whole person impairment, Dr Woo noted that when
Mr Riddle was examined by Dr Graham in 2017, the right knee had full extension of 110° flexion whereas at his examination the flexion had reduced to 100°. He said:[26]
“In my opinion, he has deterioration of his right knee injury since his last award in 2010.”
[26] ARD p 82.
In a subsequent report dated 2 March 2022 Dr Woo repeated the applicant’s history. He noted that there was no pre-existing condition or injury that may have affected the present condition[27]. He again considered the investigations and was invited to comment on the report of the treating surgeon Dr Gavin Soo. He said:[28]
“I agree with Dr Soo’s opinion:
‘Prior to his injury in 2001 Philip denies any previous history of pain or injury to the right knee. Thus, it is reasonable to conclude that the injury sustained in 2001 whilst at work either aggravated or accelerated his underlying osteoarthritis to the right knee’.”
[27] ARD p 90.
[28] ARD p 94.

When asked whether the surgery would benefit Mr Riddle, Dr Woo said:[29]
“Mr Riddle’s right knee symptoms have deteriorated since I saw him in July 2020. His right knee pain is constant and affects his walking capacity.
His right knee has developed a flexion contracture with 5° extension lag since July 2020.
He tries to avoid putting weight on his right leg and as a result he has gradually developed left knee pain due to overuse.
His right knee symptoms will further deteriorate and his left knee will become more symptomatic as well. This will incur significant disability to him.”
[29] ARD p 94 - 95.
Dr Woo noted Dr Miniter’s report of 23 March 2021 which called for further information.

Associate Professor Paul Miniter

Dr Paul Miniter, orthopaedic surgeon, supplied two reports as medico-legal expert for the respondent. On 23 March 2021 he noted a consistent history of the applicant’s injury[30]. He said that the applicant advised that the arthroscopy with Dr Bruce gave no significant benefit, and that the applicant had ongoing issues “which suggest that he almost certainly had pre-existing osteoarthritic change even at that time”.
[30] Reply p 6
On examination Dr Miniter found a valgus deformity consistent with advanced osteoarthritis and significant disease affecting mainly the lateral and patella-femoral compartments. He agreed that a total knee replacement was indicated, but called for further information in order to determine the nature of the injury. His provisional diagnosis was of dominantly lateral and patellofemoral osteoarthritic change. Dr Miniter also noted age-related pathology in the left knee.
In his second report dated 3 May 2022, Dr Miniter acknowledged receipt of the relevant evidence to complete a file review.[31] He noted that the AMS found Mr Riddle to be “unreliable and inconsistent” and that there was some evidence of impairment pursuant to the Table of Disabilities. There was no whole person impairment. Dr Miniter advised that the operative findings of Dr Bruce were significant as no findings of a meniscal lesion were noted and only degenerative change was found, primarily involving the patellofemoral joint and anterior portion of the medial femoral region. He said:[32]
“Indeed, the information that you have sent me, and this is particularly so by way of the report from Dr Bruce, would suggest that at the time of his original claimed injury he already had significant patellofemoral osteoarthritic change and that there were no other major features of disease.”
[31] ALD p 1.
[32] ALD p 2.
Dr Miniter advised that the evidence showed the applicant had long-standing pathology in the right knee but only in the patellofemoral joint. Subsequent investigations did not show any major pathology in the main compartments of the knee and it was only recently that
Mr Riddle had progressed to more significant tricompartmental arthritis. There was accordingly no evidence to suggest a “significant” injury in the first instance. The development of pathology in the left knee simply meant, Dr Miniter said, that Mr Riddle had degenerative change affecting both knees which was almost certainly related to his diabetes.
Dr Miniter concluded by agreeing that the proposed surgery was reasonably necessary, but noting that it was unrelated to any work-related injury.

SUBMISSIONS

Mr Carney

Mr Carney submitted that the injury provoked the symptoms in Mr Riddle’s knee and that the arthroscopy by Dr Bruce demonstrated the reason, being the presence of degenerative changes in the knee discovered on operation, the details of which Mr Carney addressed.
He said that Dr Bruce noted that the degenerative changes may increase in the future, which is what had in fact happened. It was interesting that it was not for some time before the s 66 claim was made, Mr Carney said, although a complying agreement was made in 2005. Strangely, as used to happen back then, Mr Carney said, there was actually a MAC by
Dr Middleton. Mr Carney submitted that Dr Miniter in his second report laid a lot of stress on Dr Middleton’s MAC but it was clear that at the time of the MAC all medical practitioners found some problem with the right knee, and found some impairment.
Mr Carney noted that after some years Mr Riddle attended Dr Lim as his new GP around about 10 September 2020. Mr Riddle was then referred to Dr Soo who recommended the proposed surgery. It was significant that the applicant was asymptomatic, notwithstanding he had arthritis at the time of the 2001 event. Mr Carney submitted that the presence of degenerative change in the tricompartmental areas of the knee remarked on by Dr Soo was consistent with the condition of the knee “from the very start”.
The last paragraph was crucial, Mr Carney said, where Dr Soo found that the 2001 injury had either aggravated or accelerated the applicant’s underlying arthritis. In argument Mr Carney said that there was a difference between an aggravation and an acceleration. He submitted that an acceleration could not cease, in contrast to an aggravation. Dr Bruce’s prognosis that there would be an increase in degenerative changes in the future was consistent with a prediction of acceleration, I understood Mr Carney to submit.
Mr Carney referred to the reports of Dr Woo, submitting that in his second report he “clarified” his advice in his first report that the temporary aggravation caused by the subject injury had ceased. The second report showed that Mr Riddle had “fairly constant” treatment over the years and Dr Woo adopted Dr Soo’s opinion that the subject injury had aggravated or accelerated the underlying arthritis.
Dr Miniter’s first report merely summarised the applicant’s situation. So far as Dr Miniter’s second report was concerned, Mr Carney submitted that Dr Miniter was cherry picking the report of the AMS and that it was a file review that was lacking in any probative detail. The AMS still confirmed an impairment, regardless of Dr Miniter’s attempted finding as to credit based on an acceptance of a comment some 10 years earlier. I would ignore Dr Miniter’s comments as to the applicant’s diabetes, as it had not otherwise been commented on in the evidence.

Mr Grimes

Mr Grimes took me through a chronology of the major events, the injury occurred in October 2001 and the arthroscopy following it on 15 May 2002. Mr Grimes submitted that there was something of a gap until the next treatment by Dr Matalani on 23 March 2010 although earlier on 8 July 2005 he had obtained his Complying Agreement settlement.
Mr Grimes submitted that it was significant that in the MAC of 27 October 2010 the AMS found there had been no increase in the loss of use of the right leg agreed in the s 66A of July 2005 and he referred to the opinion of the Medical Appeal Panel of 23 January 2011 that confirmed the opinion of the AMS.
The conclusion to be drawn from this history was that the applicant had suffered a minor injury 20 years ago, as demonstrated by the operative findings of Dr Bruce, Mr Grimes submitted. The temporal gap in treatment of eight years demonstrated that the applicant’s condition was constitutional and it could not be said that the 2001 injury either aggravated or materially contributed to the need to surgery, in what I took to be a reference to Murphy v Allity Management Services[33] and that line of authority. The finding of the AMS that there had been no increase in impairment, which had been confirmed by a Medical Panel demonstrated that there was no continuing problem over those intervening years.
[33] [2015] NSWWWCCPD 49.
Mr Grimes referred to Dr Woo’s original opinion that Mr Riddle had aggravated his degenerative changes when he twisted his knee but that the aggravation had long since ceased. It was not suggested that there had been an acceleration, rather the developing condition of the right knee was stated by Dr Woo to be the natural course of knee osteoarthritis.
He submitted that although Dr Woo would appear to walk back that opinion in his second report, I would not be able to accept that amendment of his view.
Dr Woo’s first report was totally supportive of Dr Miniter’s view in that Dr Woo did not use any other term but that the asymptomatic condition had been aggravated. He referred to Paric v John Holland Constructions Pty Ltd[34] and submitted that Dr Woo’s change of heart was not accompanied by any reasons that would sufficiently explain why he had altered his opinion in order to be able to say his opinion was given in a fair climate. His first report was more considered and supported by the evidence regarding his past treatment.
[34] [1984] 2 NSWLR 505.
Dr Miniter in his latest report said that the condition of the knee was just the natural progression of a degenerative condition over 20 years. He accepted that in his second report Dr Woo had adopted Dr Soo’s opinion that there had been an acceleration as well as an aggravation but Mr Grimes submitted that there were two significant opinions in fact the applicant had simply aggravated a pre-existing asymptomatic condition in 2001, and that the aggravation had ceased. Those opinions were from Dr Soo and Dr Woo themselves.

Mr Carney

Mr Carney submitted that the history showed that there was a continual problem with the knee, notwithstanding that there appeared to be a gap in the history between Dr Bruce’s attentions in August 2002 and Dr Manohar’s involvement in September 2008.
There had been the settlement in 2005, which suggested that there were still ongoing difficulties at that time with Mr Riddle’s knee.
He submitted that I would accept Dr Woo’s opinion that the workplace injury aggravated the pre-existing degenerative changes in the right knee and that they had gradually progressed in 2001 – 2020 as would be expected in the normal course of the development of the osteoarthritis.
Mr Carney referred to the estimates of the loss of use of his right leg at or above the knee that the injury had caused which Dr Maxwell estimated at 10% without any deduction being made.

DISCUSSION

The power to grant declaratory relief in this application is contained in s 60(5) of the 1987 Act:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
It was conceded that the proposed total right knee replacement was reasonably necessary, and the relevant dispute before me is the denial by the respondent that it is now liable to pay the cost of the surgery for an injury that occurred over 20 years ago, on 29 October 2001.
No submissions were made regarding the matters I referred to above when discussing the applicant’s statement, but those issues require some consideration as on their face they could possibly be interpreted against the credit of the applicant.
Firstly, Mr Riddle alleged that he had received a $28,225 lump sum payment in respect of a further 30% loss of use of his right leg, less the 7.5% already awarded in the Complying Agreement. That assessment matches the terms of Dr Matalani’s assessment of 23 March 2010. It was also alleged that Mr Riddle had received a further $30,000 pursuant to the provisions of s 67 of the 1987 Act as it then stood.
In the face of the findings of the MAC, and of the Medical Appeal Panel, such assertions were untrue, or if they were true, no explanation had been given as to how that settlement could have come about.
Secondly, there is, as both counsel have acknowledged, something of a lacuna in the applicant’s evidence regarding treatment for the right knee between the years 2005 and 2008. The clinical notes of the Concord Medical Centre showed that the applicant attended the practice between 29 October 2001 and 7 April 2005. There was no further record of the applicant receiving treatment for his right knee until he attended Dr Kanawati on 21 June 2008.
At first sight, Mr Riddle’s statement that he had “continued to consult” Dr Kanawati after describing the settlement of 8 July 2005, gave an impression that he had been under
Dr Kanawati’s care at least at the time of the settlement, if not before.
This also was patently untrue. As stated, Mr Riddle did not consult Dr Kanawati until 21 June 2008.
Both these matters had the potential to damage Mr Riddle’s credit, on which a good part of his case was depending. It is accordingly important to deal with this issue at the outset.
Mr Riddle’s statement was somewhat peremptory, to say the least. His background was actually given by Dr Woo on 5 July 2020. It showed that Mr Riddle was born in Sierra Leone, West Africa and that in 1990 whilst working as a merchant seaman, he jumped ship in Australia where he has been living since. He completed high school and a “TAFE-like course in engineering”.
No mention as to Mr Riddle’s competence with the English language has been raised, and
I assume from the fact that he was working as a Croupier in a casino that he had a good knowledge of the language, and indeed an ability to communicate clearly. It also follows from his present occupation as a Court Officer, which he has been occupying since 2008, that he has no difficulty with the language, and, importantly, that he is a man of good character.
I assume that, as is common practice, Mr Riddle compiled his statement with the assistance of his solicitors. I assume further that he did not read what he signed with any particular care and that the two untrue statements were not deliberate attempts by Mr Riddle to mislead the Commission or the insurer. I assume that the errors were made in the preparation of the statement by Mr Riddle’s legal advisors, and were not noticed when he signed the document.
As indicated, no submissions were made about these matters, and I make no adverse finding on these issues as to Mr Riddle’s credit, or character.
The issue to be resolved is whether Mr Riddle has satisfied his onus to show that his present need for a total knee replacement is as a result of his injury on 29 October 2001.
In this context, the lacuna in the evidence self-evidently demonstrates that there is no contemporaneous record of Mr Riddle complaining to any health professional for three years, or to anybody else. The medical evidence lodged on his behalf shows that there was a gap in treatment of three years at the GP level, and a gap in specialist treatment or investigation between 11 October 2002, the date of Dr Bruce’s final report, and the MRI scan of 26 May 2009.
Mr Riddle confined himself to saying in his statement, made in March 2022, that “my condition further deteriorated following that settlement”, and “since my previous awards, my injuries have significantly deteriorated. In particular, I am constantly experiencing severe right knee pain”.
Mr Riddle’s statement is uncontroversial. There is no dispute that he is now experiencing severe right knee pain, and it follows that Mr Riddle has indeed experienced a deterioration of his knee since 2005 and 2011, the date of his previous awards. His need for a total knee replacement is not in dispute. The dispute concerns whether the twisting incident in 2001 is a material factor in Mr Riddle’s need for surgery.
The complaints made by Mr Riddle firstly to Dr Manohar in September 2008 and September 2009, and then to Dr Matalani in March 2010 were not accepted by the AMS, Dr Middleton, whose opinion is conclusively presumed to be correct at the time he gave it on 27 September 2010[35]. It was confirmed by a Medical Appeal Panel, and the Workers Compensation Commission made an order to that effect, which is reproduced above, at [13].
[35] Section 326 of the 1998 Act.
Dr Soo’s opinion to Dr Lim of 10 September 2020 I agree with, insofar as he said that the cause of Mr Riddle’s ongoing symptoms was the advanced osteoarthritis. I do not however accept his opinion to Mr Riddle’s solicitors of 17 August 2021 as to causation. Simply because the applicant was asymptomatic prior to his injury, it does not necessarily follow that the applicant’s present condition, over 20 years later, is related. Dr Soo suggested that the injury in 2001 either aggravated or accelerated Mr Riddle’s underlying osteoarthritis – an opinion that was later adopted by Dr Woo, and which was unsubstantiated by reference to any facts or circumstances that explained it. Dr Soo’s opinion as to causation I find to be a mere ipse dixit.
Some discussion occurred during argument as to whether the acceleration of an underlying condition was capable of ceasing, however, a decision is not called for, in view of the decision I have reached as to the facts.
Dr Woo’s two reports were in conflict. He firstly said on 5 July 2020 that the temporary aggravation caused by the injury had ceased, but then, on 2 March 2022, that it had not only continued, but had also been accelerated, because the applicant had been previously asymptomatic when he injured himself in 2001 - citing verbatim the opinion of Dr Soo.
Again, the finding by Dr Woo that the condition of Mr Riddle’s knee had deteriorated since the last award in 2011 is not germane to the issue. The AMS in 2010 found that there had been no increase in the applicant’s loss of use of his knee, and that the disorder in the right knee was degenerative. The real question was whether Mr Riddle’s knee had deteriorated since his injury in 2001, and if so, the cause of such deterioration. Dr Woo answered those questions in his report of 5 July 2020 by saying that the 2001 injury had aggravated the pre-existing but asymptomatic degenerative changes, but that such aggravation had ceased.
I could not find any explanation in Dr Woo’s report of 2 March 2022 for his change of mind and I am accordingly unconvinced that his second opinion should be accepted over his first. It too was an ipse dixit.
Dr Miniter’s opinion was consistent with that of the AMS in 2010. Mr Riddle has developed degenerative changes in both knees, having originally made symptomatic longstanding pathology in the patellofemoral joint of the right knee, but who now had tricompartmental changes consistent with degenerative change. The diagnosis by the AMS was that
Mr Riddle was suffering a degenerative disorder.

SUMMARY

I am not persuaded that the applicant has made out his case. In the first place I accept that the injury itself was not a significant injury, being in the nature of a twisting injury whilst using the stairs at the casino. Such a minor action suggests that Mr Riddle was carrying a degenerative condition that had not been symptomatic up to that time.
Secondly, I accept that the imaging the AMS considered on 27 September 2010 was not consistent with a degenerative disorder affecting the right knee. Both the AMS and Dr Miniter held that view.
Thirdly, Dr Bruce on 20 August 2002 thought that the knee pain then being complained of was caused by referred pain from the spine, as on examination there was a good range of motion with some tenderness over the popliteal nerve, so that his treating surgeon expressed some doubts as to whether Mr Riddle was suffering from degenerative pathology at that time in any event.
Fourthly, there is no evidence that Mr Riddle was suffering any symptoms during the three years he did not have medical treatment. The evidence he gave was too general to enable a finding that he was in fact suffering symptoms during the relevant three year period, and the implication is that any aggravation of his degenerative knee had settled.
Fifthly, the evidence of Dr Soo is conflicted and confused. Dr Soo stated unequivocally that the cause of Mr Riddle’s knee symptoms had been advanced osteoarthritis, and then argued that because he had been asymptomatic, Mr Riddle’s underlying osteoarthritis had been either aggravated of accelerated by the incident. No attempt was made to explain how the applicant’s present symptoms were related to that event. There was no reference to the years when Mr Riddle appeared to be symptom free, and no attempt to explain how nonetheless the aggravation caused in October 2001 had not ceased. This was particularly problematic when he had already said that the cause was advanced osteoarthritis.

Similarly Dr Woo’s opinion suffers from the same problem, as on 2 March 2022 he adopted Dr Soo’s opinion, after saying in July 2020 that “the temporary aggravation had ceased”. In his later report he made no attempt to expand on his change of view, which simply quoted
Dr Soo’s opinion as to aggravation and acceleration.
It is clear that Mr Riddle needs a total knee replacement, however I am not satisfied that the need is related to the injury of 29 October 2001.
There is an award in favour of the respondent.

[2022] NSWPIC 339

29 June 2022