Sabine v HammondCare
[2024] NSWPIC 664
•3 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sabine v HammondCare [2024] NSWPIC 664 |
| APPLICANT: | Tapa'Autaua Sabine |
| RESPONDENT: | HammondCare |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of total right knee replacement; injury admitted; requirement for surgery admitted; issue for determination is whether the requirement for surgery came about as a result of the injury; the applicant suffered an accepted injury to her right knee by way of aggravation to pre-existing pathology when she was lifting a patient who fell towards her, in turn causing the applicant to fall and (relevantly) injure her right knee; the applicant had, from time to time, made complaints in relation to her right knee before the injury at issue, including to her GP the day before the injury; however, she stated the injury caused her consistent ongoing pain which has worsened over time, necessitating the surgery; the respondent argued the applicant had not discharged her onus of proving the causal connection between the injury and the proposed surgery, and also effects of the injury had passed, as a result of which the surgery was necessary because of her underlying condition; Held – the injury made a material contribution to the need for the surgery, meaning the operation is reasonably necessary as a result of the injury; Murphy v Allity Management Services Pty Ltd followed, Kooragang Cement Pty Ltd v Bates referred to; the evidentiary onus of proving the effects of an accepted injury have passed is on the party so alleging; Commonwealth v Muratore referred to; the respondent did not lead any medical evidence to support the proposition the effects of the injury had passed, and as such failed to discharge its onus of proof on that point; on balance, the evidence discloses the proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to her right knee in the course of her employment with the respondent on 7 October 2022 in the nature of a frank aggravation to pre-existing pathology. 2. As a result of the applicant’s injury, she requires a total right knee replacement as recommended by Dr Rahme. 3. The proposed surgery is reasonably necessary as a result of the applicant’s injury. 4. The respondent is to pay the costs of and incidental to the proposed surgery. 5. Notation: a. the Commission notes the agreement of the parties that the proposed surgery relates to an artificial aid and accordingly, the provisions of s 59A of the Workers Compensation Act 1987 do not apply. |
STATEMENT OF REASONS
BACKGROUND
On 7 October 2002, the applicant, Tapa’Autaua Sabine was lifting a patient in the course of her employment with HammondCare (the respondent) when the patient fell towards her, causing the applicant to fall forward out of a chair and hitting the ground with both her knees, together with causing her right ankle and back to twist awkwardly.
The applicant states she immediately experienced excruciating pain in her right knee and ankle and cried out for help.
The applicant’s injury is accepted, and she brings these proceedings seeking the payment by the respondent for the costs of and incidental to a proposed right total knee replacement recommended by her treating surgeon, Dr Rahme.
There is no issue the applicant requires the surgery recommended; however, the respondent has denied liability on the basis the requirement for the surgery is not brought about as a result of the applicant’s injury.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the applicant’s injury has made a material contribution to the requirement for surgery.
At the hearing, the parties agreed that the artificial knee for which the applicant seeks payment is an artificial aid, and accordingly the provisions of s 59A of the Workers Compensation Act 1987 (the 1987 Act) do not apply to it.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was represented at the hearing by Mr Beran, instructed by Mr Meireles. The respondent was represented by Mr Hickey, instructed by Mr Kim. Additionally, Ms Morgan of the respondent’s insurer was also in attendance.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments;
(b) Reply and attachments, and
(c) Applicant’s Application to Admit Documents (AALD) and attachments dated 27 November 2024
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the proposed surgery is reasonably necessary as a result of the applicant’s injury
The applicant carries the onus of proving a causal link between her injury and the proposed surgery. As is always the case with issues of causation in a workers’ compensation context, the matter must be determined by a commonsense evaluation of the causal chain: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
The parties in this matter approached the proceedings in a refreshingly concise manner. There was no issue the applicant suffered from pre-existing osteoarthritis in her right knee, and that she had from time-to-time sought treatment for it, including on the day before the injury at issue.
There was also no issue that the proposed knee replacement constitutes an artificial aid and as such the time limits pursuant to s 59A of the 1987 Act do not apply.
In order for the applicant to show a causal link between her injury and the need for surgery, she must only demonstrate the injury made a material contribution to the requirement for that surgery; Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (24 August 2015). As Mr Beran noted, a material contribution does not need to be a substantial contributing factor or the main contributing factor to the need for the treatment at issue. Indeed, the authorities make it clear that an injury has made a material contribution to the requirement for a given treatment if it has led to treatment which would have been required in any event being needed sooner than would otherwise be the case.
Mr Beran took the Commission to the clinical records of the applicants treating general practitioner (GP). Those records demonstrated infrequent but periodic attendances in relation to the applicant’s right knee before the injury at issue. Mr Beran noted, however, that between 9 August 2017 and 28 February 2020, there were no attendances at the doctor for the applicant’s right knee.
On 6 October 2022, being the day before the injury, the applicant attended upon her GP, at which time the following notes were taken:
“Examination:
Presented with right knee pain, stiffness, restriction of walking and mobility.
Generalised soreness and tender.
Restriction of movement of right knee or ROMs (flexion/extension/lateral flexion/rotation).
Neurovascular/sensation intact.
Mild effusion.
McMurray test and anterior/posterior drawing – mild pain”
The applicant was prescribed analgesia, physiotherapy and active range of motion exercises while a plain X-ray of the right knee was ordered to check for osteoarthritis and other degenerative changes.
Following the injury at work, the applicant again attended her GP on 7 October 2022. At that time, the following notes were recorded:
“She had incident, happened at work- BG last night, one client who has dementia, wandering both outside and she took her inside.
She then fell over her, landed over her thighs, knees while she was sitting in the armchair.
She was tipped over and landed forward, over her knees, twisted her right ankle.
The incident happened with registered nurse on duty who witnessed the incident.
Presented with soreness, swollen, painful, stiffness, right knee (generally) and ankle (laterally).
She has restriction in movements of right knee and ankle.
Pain rate at about 6/10 on pain scale.
Denies any chest pain/SOB/sweating/paleness/palpitation.
No recent weight loss/PR bleeding or change in bowel motion.
No urinary symptoms.
Reason for Visit:
Mechanical, right knee (generally) and ankle (laterally) pain”
The applicant was again prescribed analgesia and physiotherapy together with active range of motion, strengthening and stretching exercises.
The applicant’s injury marked the commencement of increasing visits to her GP for right knee treatment. Mr Barron submitted, and I accept that since the time of her injury the applicant has attended her general practitioner at least once per month in relation to her right knee. For the respondent, Mr Hickey noted that although there were consistent visits to her GP, the applicant’s complaints of pain eased, generally being self-reported at around 3 or 4 out of 10 as opposed to 6 out of 10 in the immediate aftermath of the injury. He submitted there was insufficient evidence proffered by the applicant to discharge the onus of proving it was the symptoms brought about by her injury as opposed to the underlying condition which has caused the need for the surgery.
Difficulty with that submission is the clinical records plainly show an increase in the frequency of visitation to the applicant’s general practitioner after the fall. Those visits were consistent, as were her complaints of pain. True it is, the radiological material plainly demonstrates the applicant had quite serious osteoarthritis and degenerative changes in her right knee before the injury at issue, however, that injury was appropriately accepted, and her complaints have remained since it took place.
In assessing whether an injury has given rise to a need for treatment, it must be remembered that symptomology rather than pathology brings about the need for treatment. It is axiomatic to say a worker may have serious degenerative changes in a body system such as, for example, their lumbar spine which are asymptomatic, however, upon an injurious event taking place (whether at work or otherwise), that pathology becomes symptomatic and in need of treatment. In such circumstances, it is readily apparent the injurious event has made a material contribution to the need for the treatment required. Such is the case, in my opinion, in this matter.
Mr Hickey criticised the applicant’s independent medical examiner (IME), Dr Burrow, whose opinions in relation to the requirement for surgery, he said, were bare ipse dixit assertions. In his first report, Dr Burrow said:
“She has continuing symptoms and associated disability, mostly about the right knee and is scheduled for a review with orthopaedic surgeon, Dr Rahme, next week, as well as continuing symptoms from the lumbar spine. Mrs Sabine had documented a pre-existent chronic lower back pain with degenerative changes of the lumbar spine as well as right knee arthritis (in fact, consulted her general practitioner and had an x-ray one day prior to the incident of concern) and cartilage wear (degenerative arthritis) of the right ankle prior to the incident of concern. The incident of concern aggravated all three areas, and substantially the right ankle has now settled.
After the incident, she returned to restricted duties but her position was terminated around October 2023 as no further restricted duties were available.”
Dr Burrow diagnosed aggravation of pre-existing degenerative changes of the right knee, with an uncertain prognosis. He stated the applicant would see deterioration in the right knee and there was no prospect of significant improvement in the current reported symptoms, which would ultimately require surgery.
Mr Hickey submitted Dr Burrow’s report was of limited weight given the lack of clear explanation for the findings of attributability to the injury as opposed to the underlying pathology. However, Dr Burrow does indicate, consistent with the clinical history, that the applicant’s complaints persisted since the injury and were plainly worse than they were beforehand.
In his supplementary report dated 26 November 2024, Dr Burrow was specifically asked whether the injury at issue has made a material contribution to the need for the recommended surgery. Dr Burrow’s reply was as follows:
“The incident has made a material contribution to the need for the recommended surgery.
I note that Ms Sabine had x-rays of the knee one day pre-incident suggesting significant pre-incident symptoms and concerns under the care of a general practitioner. It is my opinion that she would have required the recommended surgery eventually had it not been for the work incident, however, the work incident resulted in the requirement for surgery occurring at a time earlier than would otherwise have occurred.”
It was noted at the hearing that in fact the X-rays to which Dr Burrow refers, although sought a day before the injury, in fact did not take place until afterwards. Nevertheless, there is no issue, they show clearly pre-existing degenerative changes to the applicant’s right knee.
Mr Hickey again attacked Dr Burrow’s reasoning, indicating there is no explanation as to why it was the injury which had made a material contribution to the need for surgery, as opposed to that need being brought about wholly and solely by the pre-existing condition.
Whilst Mr Hickey’s attack on the opinions of Dr Burrow carries some weight, the difficulty for the respondent is it has not obtained any medical evidence of its own to refute Dr Burrow’s opinion. Thus, even if I gave Dr Burrow’s opinion less weight than might be the case had he given a detailed exposition as to why the injury has brought about the need for surgery, in any event, his is the only medicolegal opinion in the matter and stands, therefore, unchallenged. I accept it.
Dr Burrow’s view also accords with that of treating surgeon Dr Rahme, who has indicated the surgery is reasonably necessary. Dr Rahme’s report dated 24 April 2024 after the applicant returned with X-rays noted advanced valgus osteoarthritis at the right knee with tibiofemoral subluxation. It was at this time he recommended a right knee replacement.
Although that report does not specifically make mention of the workplace injury, it must be read in conjunction with Dr Rahme’s report of 16 April 2024 before the X-rays were taken. That report records a history of the applicant injuring her right knee at work and sustaining “a significant injury to the right knee”. Thus, from Dr Rahme’s perspective, the background of the injury was something which warranted investigation and which prompted him, after receipt of the X-rays to request approval for the surgery from the respondent’s insurer. It may therefore be implied from this request that Dr Rahme was of the view the requirement for the surgery was as a result of the injury at issue, although his reports are silent as to the reasons why.
The other difficulty for the respondent in asserting the effects of the applicant’s injury have been superseded by the underlying pathology is it carries the onus of proving this is the case. A party which asserts the effects of an accepted injury have passed faces the evidentiary onus of proving this to be the case: see Commonwealth v Muratore (1978) 141 CLR 296, a decision which has been followed in this jurisdiction including at presidential level.
Given the respondent carries the onus of proving the underlying pathology is the cause of the need for surgery rather than the accepted injury on the basis the latter’s effects have passed, the failure to lead any expert evidence to this effect is, in my view, fatal to that aspect of the respondent’s case.
On balance, I am of the view the applicant has discharged her onus of demonstrating the accepted injury has made a material contribution to the requirement for the medically necessary surgery, and accordingly the need for that surgery arises as a result of the injury at issue.
This being the case, the respondent will be ordered to pay the costs of and incidental to the proposed surgery.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.
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