Senico v Transport for New South Wales - [2021] NSWPIC 105

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Senico v Transport for New South Wales [2021] NSWPIC 105
APPLICANT:	Sukuna Senico
RESPONDENT:	Transport for New South Wales
MEMBER:	Mr John Wynyard
DATE OF DECISION:	5 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Consequential condition; claimant injured right knee working as a rigger on the Harbour Bridge; right high tibial osteotomy surgery damaged lateral popliteal nerve necessitating further surgery and subsequent hospital admission for infection; claimant on crutches for 13 months; developed low back pain: application for referral cost of $89.55 to neurosurgeon for treatment & management declined on basis that back condition not consequential; Held- condition consequential; respondent specialist rejected as reports inconsistent; Tudor Capital Australia Pty Limited v Christensen referred to re medical possibility and balance of probabilities.
DETERMINATIONS MADE:	The Commission determines: 1. Mr Sukuna Senico suffered a consequential condition to his spine resulting from an injury to his right knee sustained on 25 June 2018. The Commission declares: 1. A referral of Mr Senico to a neurosurgeon for treatment and management is reasonably necessary. The Commission orders: 1. The respondent will pay the cost of $89.55 for such referral.

STATEMENT OF REASONS

BACKGROUND

Sukuna Senico, the applicant, brings an action against Transport for New South Wales, the respondent, for a declaration pursuant to s 60 (5) of the Workers Compensation Act 1987 (1987 Act) that the cost of a referral to a neurosurgeon regarding ongoing treatment and management be met by the respondent in the sum total of $89.55.
Dispute notices were issued and proceedings were subsequently commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Has the applicant suffered a consequential injury to his back?

PROCEDURE BEFORE THE COMMISSION

The matter was heard by video link on 7 April 2021. The applicant was represented by
Ms Samantha Moon from Melinda Griffiths Lawyers instructing Mr John Wilson of counsel. The respondent was represented by Ms Christine Bellemore from HWL Ebsworth Lawyers instructing Mr Greg Young of counsel. 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)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Further report of Dr Bosanquet dated 23 March 2021 tendered during the hearing.

Oral Evidence

No application was made regarding oral evidence.

FINDINGS AND REASONS
Statement by Mr Senico dated 7 February 2021

Mr Senico was born in 1962 in Fiji and has four independent children. His worked as a rigger on the Harbour Bridge from 1995 to 25 June 2018. The nature of his work placed significant strain on his knees and since 2010 he noticed a gradual deterioration of mobility in both knees.
In mid June 2018 Mr Senico’s right knee swelled at work. He sought treatment from his GP, Dr Krishnan Viswanath and was eventually referred to an Orthopaedic Surgeon, who recommended surgery. No report was lodged from that surgeon but Mr Senico said that he was told that he was suffering from advanced osteoarthritis in his right knee and that he needed to undergo a right high tibial osteotomy.
On 15 November 2018 he came to surgery at Sydney Private Hospital. The cost of which was met by the insurer.
The statement noted that the surgeon’s operating report spoke of a wedge of bone excised just below Mr Senico’s right tibial plateau and that the bone had been secured with two screws and cerclage wire to keep it closed. (I assume as it’s not unusual, Mr Senico had some assistance in the drafting of his statement and that the operation report was at hand at the time it was drawn up).
Mr Senico said that following the first operation he noted that he had numbness down his left leg and foot which he had never experienced prior to the injury. He said[1] that his knee became swollen and tender and “I was not able to walk without crutches”.
[1] Paragraph 21.
He was off work for two months to see if it improved and went to see his surgeon again on 15 January 2019. He stayed on crutches.
Further investigations were undergone which showed that there had been a non-union of the bones in Mr Senico’s knee. He said[2]:
“I was encouraged to start weight bearing as I was losing muscle through my legs due to lack of movement. I continued to use my crutches”.
[2] Paragraph 22.
Mr Senico sought a second opinion and consulted Professor Warwick Bruce on 17 April 2019. He came to revision surgery with Professor Bruce on 22 May 2019 at Ashfield Private Hospital. This surgery too was funded by the insurer.
Again I assume with some assistance, Mr Senico said that Professor Bruce was unable to over correct the osteotomy and he placed seven screws and a plate in the knee to hold it stable. Professor Bruce also performed neurolysis of the nerve and removed the two screws that had been inserted by the original surgeon. He found oedema of the lateral popliteal nerve and Mr Senico was told that a drill bit broke off into his knee during the surgery, which was left in place.
As of 30 May 2019 Mr Senico had commenced treatment with Five Dock Physiotherapy which he attended two or three times per week.
He saw Professor Bruce on a number of occasions during June 2019 when the wound was cleaned and his progress checked. At that stage he said the most weight he was able to bear was 20% and Professor Bruce noted his poor muscle mass and endurance.
Around 19 July 2019 Mr Senico was admitted to Concord Repatriation General Hospital due to concerns of infection of blood blisters around his wound.
By 29 July 2019 his antibiotic course had completed, and Professor Bruce was unhappy with the amount that his knee had healed. Mr Senico was still only weight bearing at about 20% and was continuing to use his crutches.
He saw Professor Bruce on 13 August 2019 and 4 September 2019 at which time he was told he no longer needed to wear a brace on his knee but he continued to use his crutches to walk.
Mr Senico said that he would spend most of his days at home as he tried to rest as much as possible. He used crutches to get around the house and when going out to the shops or to watch bowls - “I was unable to walk at all without them”.
On 16 September 2019 when leaving for a physiotherapy appointment, Mr Senico could find only one crutch, and his physiotherapist recommended that he continue to weight bear on one crutch. Mr Senico said[3]:
“I struggled during my transition to weight bearing on crutches particularly after I started to use one crutch. I was moving with an altered gait and manipulating my body into a position that was most protective of my right knee and lower leg. This abnormal movement was far more pronounced once I began walking on one crutch.”
[3] Paragraph 38.
By 14 October 2019 Professor Bruce was suggesting a return to work on light duties and on 8 November 2019 Dr Viswanath issued a certificate for Mr Senico to return on light duties. He said that from November 2019 he only used his crutches as necessary.
Mr Senico in the week following his transition to one crutch noted “a straining feeling” through his back. He said that at a physiotherapy appointment on 26 September 2019, as he was being massaged, he felt a sharp pain in his back, which he said worsened the pain he was already feeling. No report was tendered from that particular physiotherapist, whom
Mr Senico identified as Olivia Caspers.
His return to work on 11 December 2019 was unsuccessful. He was certified fit for office work only but found that the amount of physical activity that he was required to do worsened his lumbar condition, and on 13 January 2020 he was again certified unfit.
Mr Senico said:[4]
“I had no issues with back pain prior to my transition to using one crutch and return to work. At the time of my return to work I had spent 13 months on crutches being the period between my first period and shortly prior to my return to work”.
[4] ARD page 8.
Mr Senico said that in all the time since his knee surgery he had never been physically able to walk more than 30 metres at a time due to either pain in his right knee or pain in his back. He said that he wished to have his lumbar spine injury properly treated.
The respondent has denied liability, relying mainly on the opinion of Dr Bosanquet and claiming that Mr Senico’s lower back condition did not result from the injury to his right lower extremity of 25 June 2018.

Medical evidence
Professor Bruce

Professor Warwick Bruce, Clinical Professor at Concord Clinical School, University of Sydney, wrote a series of reports between April 2019 and February 2020, some of which were listed by the respondent in the s 78 Notice dated 4 June 2020[5], and some of which were listed in Dr Bosanquet’s report of 7 May 2020.[6] None of those reports were lodged.
[5] ARD page 15.
[6] Reply page 2.
A report that was not listed was dated 17 April 2020, written to the insurer in answer to specific questions (which were not identified). Although this report was not reviewed by him, Dr Bosanquet answered questions about it from the insurer, as will be seen. These answers were relied on by the respondent to deny liability for Mr Senico’s back injury.
In that report, Professor Bruce noted Mr Senico’s complaints about his back. He said that when he last saw Mr Senico, Mr Senico was complaining about significant right sided sciatica, and was seeing a neurosurgeon. Professor Bruce described Mr Senico’s complaints and said:[7]
“So therefore, I do not think he is fit for work at this stage. When his spinal issue is sorted by his neurosurgeon he certainly can do sitting and walking work but still not much heavy lifting.
…The diagnosis is osteoarthritis, some spinal stenosis and it does not relate to the injury he had on 25/06/2018.”

[7] Reply page 1.

Mr Senico then lodged a further report from Professor Bruce dated 1 February 2021 with regard to the onset of the back condition. Professor Bruce said that he had not been treating the lumbar spine problem, but that there was nerve damage in the foot from the primary osteotomy surgery, and that this had been complicated by sciatic pain on the same side. He though the revision osteotomy he performed had healed, but the spine had to be “fixed”. Professor Bruce thought that Mr Senico was being treated by Dr Brian Hsu for his lower back condition. He said:[8]
“3. I don’t know the length of time the patient was on crutches however he was on crutches because of a revision osteotomy and we had to wait for bony union to occur. When he had his sciatica he may have gone back on crutches, I am not sure.
4. The patient has nerve damage from the primary osteotomy. He had developed sciatica since the revision surgery and this complicates the leg pain he gets. The patient’s lumbar spine may have been asymptomatic as he was on crutches for the two operations he had. I am not treating his lumbar spine problem and I am not aware if he had an injury but it may have been exacerbated by crutch walking.”
[8] ARD page 61.
Professor Bruce also said at paragraph 7:
“He may not have developed a lumbar spine issue if he had not had two operations and was therefore on crutches for a long period of time …”

Dr Endrey-Walder

Mr Senico retained the services of Dr P Endrey-Walder, General and Trauma Surgeon, who reported on 10 March 2020. He took a thorough and detailed history of Mr Senico’s injury and treatment to the right knee and onset of lower back pain.
On examination, Dr Endrey-Walder noted:[9]
“From the moment he sat down on the chair he was clearly in pain in his lower back, to an extent that I immediately offered him to stand up and move about whenever he wished. He did get up on a number of occasions, though not necessarily any more comfortable when standing, often leaning on the back of his chair for support….
He pointed squarely at the dimple over the right sacro-iliac joint … as the epicentre of his back pain since early December last year. ”
[9] ARD page 54.
Dr Endrey-Walder noted Mr Senico’s complaints:[10]
“Since I went back to work in the office I have had this pain in my lower back and it goes down to the hamstrings to the knee”.
“I can’t sit much now, I can’t stand long, I can’t sit long.”
[10] ARD page 55.
Dr Endrey- Walder’s opinion was that the nature and conditions of Mr Senico’s daily work had caused the development of osteoarthritic changes in the knee joints, more severe on the right. The failure of the right high tibial osteotomy had led to non-union and symptoms related to the damaged common peroneal nerve. After the intervention of Professor Bruce there had been “an anxious few months” caused by the delay in the healing of the osteotomy, but when it was achieved Mr Senico remained with pain in the knee and especially some paraesthesia down the right leg and foot.
Dr Endrey- Walder said:
“In early December last year [Mr Senico] was allowed to return to some part time sedentary work but without a few days became so troubled by lower back pain that he was unable to continue.
”Since then he has had ongoing right-sided lower back pain and some pain referred into the right hamstring area, the exact nature of which has not so far been fully identified.
“It was not my clinical impression that this man is suffering from right sided sciatica from the lower lumbar spine, but rather that his lower back pain is due to aggravation of the right SIJ (sacroiliac joint) which would probably be related more to his long term abnormal ambulation on the right leg rather than a few days of sitting at work”.

The Rehab Group

In a report from The Rehab Group to the insurer dated 19 December 2019,[11] symptoms were identified in both Mr Senico’s knee and back[12]. Mr Senico was observed to walk with a “limb” (presumably limp) related to the right knee, not fully extending in the stance phase.
Mr Senico also reported secondary back pain.

Clinical notes
[11] ARD page 144.
[12] ARD page 147.

The clinical notes of the physiotherapist, Mr Clarke, were lodged[13]. These notes covered the period from 13 September 2019 to 8 January 2020. Many of those entries referred to the applicant using crutches[14].

Dr Bosanquet
[13] ARD page 502 – 483 (the dates are in reverse order).
[14] At page 483, 493,494, 489, 499, 500, 501 and 502.

As indicated, the respondent relied on the opinion of Dr John Bosanquet, Orthopaedic Surgeon, to deny liability.
Dr Bosanquet first reported on 21 August 2018 to the insurer in response to Mr Senico’s application for funding of the proposed high tibial osteotomy. Dr Bosanquet took a consistent history of the right knee injury, and noted that a recommendation had been made for knee surgery.[15] Dr Bosaquet noted that Mr Senico walked with an antalgic gait on the right side. He noted underlying osteoarthritis in the knees.
[15] ARD page 614.
On 7 May 2020 Dr Bosanquet gave a further report to the insurer and updated the history. He noted that Mr Senico attributed his back pain to being on crutches after the second operation.
Dr Bosanquet said:[16]
“There is constant low back pain. He is able to lift and bend. His pain is not made worse with coughing or sneezing. He attributes his back pain to being on crutches after the second operation. There are no symptoms in the left leg or in his left knee. He was on crutches between the first and second operation then for a further 6 months post-operatively following the second operation.”
[16] Reply page 4.
On being asked to give a diagnosis, Dr Bosaquet said[17]
“Osteoarthritis right knee with aggravation. Treatment has been a high tibial osteotomy requiring revision. There have been complications with a common peroneal nerve neuropraxia. The condition is consistent with his work as a rigger on the Harbour Bridge aggravating underlying degenerative changes”.

[17] Reply page 5.

When asked about the recent complaint of back symptoms, Dr Bosanquet said:[18]
“He has developed back pain following his two surgeries and being on crutches.”
[18] Reply page 7.
In a further report of 18 June 2020 Dr Bosanquet was asked about the report he had given dated “25 June 2020”, (I presume the author meant 7 May 2020).[19] The question posed to
Dr Bosanquet was:
“2. Regarding the current complaints of back pain and requests for treatment related to the back can you please explain what attributes to this injury for QBE to establish liability [sic]. Please note that the MRI of the Lumbar Spine 16/02/2020 notes degrative [sic] changes. Report dated 17/04/2020 from Prof Warwick Bruce states that the back injury is not related to his current claim date of injury 25/06/2018. Can you please provide a response to the following?: [sic].”
[19] Reply page 11.
Dr Bosanquet answered:
“Sukuna Senico's back pain is due to underlying degenerative changes in his lumbar spine. It is my opinion that his back injury is not related to the current claim of 25/06/18. Any back pain he is experiencing is entirely due to the underlying degenerative changes”.

Dr Bosanquet said later in his report:[20]
“As stated, his back pain is due to underlying degenerative changes with a
developmentally relative narrow lumbar spinal canal and disc degeneration at L4/5 and foraminal narrowing. There is hypertrophic facet OA at several levels. His back pain is due to his weight combined with the underlying degenerative changes. It is my opinion, as stated above, that this is unrelated to the work claim for his right knee dated 25/06/18.”

[20] Reply page 12.

A further report dated 11 August 2020, in answer to further unspecified questions,
Dr Bosanquet said:[21]
“In answer to your specific questions:
1. The patient has two issues, when I examined him in May 2019, he had numbness on the dorsum of his toes and foot and some numbness on the plantar surface of the toes and weakness of dorsiflexion of the first toe and minor weakness of dorsiflexion of the foot. This was caused at the time of the closing wedge osteotomy. He now has right sided sciatica and this is due to his lumbar spine and he was to see a neurosurgeon. I have no report from the neurosurgeon.
2. He has significant incapacity arising from pain and paraesthesia in his right leg. Some of the paraesthesia may be due to the sciatica and some due to lateral popliteal nerve damage during the closing wedge osteotomy.”
[21] Reply page 14.
A further report of 23 March 2021 from Dr Bosanquet was admitted over objection at the hearing. Dr Bosanquet had been supplied with Professor Bruce’s report of 1 February 2021. (There is no evidence that Dr Bosanquet ever saw the report of 17 April 2020). Dr Bosanquet was asked a series of questions regarding Dr Bruce’s report.
Dr Bosanquet said that from his reading of that report “Dr Bruce is saying that it is only a possibility that being on crutches caused his back pain.” Dr Bosanquet said that Professor Bruce would therefore not be aware of any degenerative changes in Mr Senico’s lumbar spine.
In considering the back condition further, Dr Bosanquet said:[22]
“It is my opinion that [Mr Senico’s] back injury is not related to the current claim of 25/06/2018. Any back pain he is experiencing is entirely due to the underlying degenerative changes ‘as stated above it is my opinion the complaints of back pain and injury are not as a result of the injury dated 25/06/2018’”.
[22] At page 2.

Dr Bosanquet said that the non-work related issues were Mr Senico’s weight of 110kgs, his underlying degenerative changes and a developmentally narrow lumbar spinal canal and disc degeneration.
In expanding on that opinion Dr Bosaquet said:
“…. While it is possible that crutch walking may have aggravated those underlying degenerative changes, they certainly have not caused them nor caused his ongoing pain. Any aggravation would have been minor and would have resolved reasonably quickly. Any person that experiences back pain from crutch walking would have underlying pathology in the lumbar spine that was being aggravated.”

Submissions
Mr Young

Mr Young submitted that I would not accept the applicant’s case. Dr Endrey-Walder’s opinion that the lower back condition was due to an aggravation of the right sacroiliac joint had no factual basis. There was no evidence of any “long term abnormal ambulation” which had been the assumption relied on.
The transcript will show there was a discussion at that point about what the term ‘abnormal ambulation’ could possibly mean, apart from being a reference to the necessity for Mr Senico to use crutches for at least 13 months.
Mr Young submitted that there was no evidence of long term ambulant problems, but rather simply some evidence of a short term use of crutches. I was referred to Professor Bruce’s report that Mr Senico had only used crutches after his two knee operations. It was submitted that I would accept Dr Bosanquet’s opinion that the sole cause of Mr Senico’s back condition were the degenerative changes identified by him. I would also accept that whilst there might have been an aggravation to that condition caused by the use of crutches, that aggravation had long since ceased.

Mr Wilson

Mr Wilson submitted that the evidence was overwhelming. It was the use of crutches that had caused the altered gait, the crutches being made necessary as a result of the failed surgery on the right knee, and the subsequent revision surgery. It was the altered gait that had been the cause of the lumbar spine condition.

Mr Young in reply

In reply Mr Young referred to Professor Bruce’s opinion in his report of 17 April 2020.
Dr Bruce had said that when he last saw Mr Senico he had significant right sided sciatica “which is completely unrelated to his knee issues”.
Mr Young submitted that the possibility that the use of crutches was causative as described in the evidence, was not sufficient to persuade me that Mr Senico had satisfied his onus on the balance of probabilities. The totality of the evidence failed to demonstrate that
Mr Senico’s back condition had “resulted from” his accepted right knee injury.

DISCUSSION

This claim is for a declaration that the amount of $89.55 should be paid by the respondent for the purposes of a referral of the claimant to a neurosurgeon for treatment and management of Mr Senico’s spinal condition. I note that Professor Bruce was under the impression that
Mr Senico was seeing Dr Hsu, and that Dr Bosanquet assumed that Mr Senico was to see a neurosurgeon, noting that no report from a neurosurgeon had been provided. I infer that
Mr Senico has not seen a neurosurgeon in view of the denial of liability and the consequent referral of the matter to the Commission. The respondent has not argued that such a referral was not reasonably necessary, but rather that there was no causal relationship between
Mr Senico’s accepted right knee injury and the onset his spinal symptoms.
Mr Senico’s statement regarding the development of his back condition was comprehensive, and clearly set out. As I indicated when discussing the evidence, it is clear that Mr Senico had some assistance in its drafting, which is quite understandable considering the complexity of the medical issues that underlie his case.
No attack been made on Mr Senico’s credit, and I accept his evidence, which was confirmed in the histories given to the specialists, that his work as a rigger on the Sydney Harbour Bridge, where he began work in 1995, caused him to develop problems in both knees. He first noticed symptoms around 2010, but the condition of his right knee became so acute that he sought medical treatment in June 2018.
The parties agreed that he was eventually referred to an Orthopaedic Surgeon, who recommended surgery in the form of a high tibial osteotomy. In response to an application for funding, the respondent had Mr Senico examined by Dr Bosanquet. Dr Bosanquet took a history that was consistent with Mr Senico’s account of the development of his knee condition, and found the proposed surgery to be appropriate.
It is common ground that after the surgery on 15 November 2018, the state of Mr Senico’s right leg significantly deteriorated. In the days following the surgery Mr Senico’s knee became swollen and tender and he experienced, for the first time, numbness down his right leg and into his foot. He was unable to walk without crutches. Further investigations established firstly a non-union, and, after a second opinion had been obtained from Professor Bruce, an under-corrected right tibial osteotomy with damage to the popliteal nerve. This damage was causing nerve pain throughout the right foot.
Mr Senico said that he developed an altered gait trying to protect his right knee and lower leg. As indicated, he switched to using one crutch in October 2019, which he said exacerbated his altered gait.
Dr Bosanquet’s report of 21 August 2018 indeed noted Mr Senico’s altered gait prior to the unsuccessful knee surgery, and is further proof of the severity of Mr Senico’s right knee condition, before the unfortunate complications which followed the surgery on 15 November 2018.
Mr Senico’s evidence was that he required the continual use of crutches until November 2019, as he went through a second surgical procedure with Professor Bruce on 22 May 2019, which unsuccessfully attempted to correct the damage. There was thereafter an admission to Concord repatriation General Hospital in July 2019 for treatment of an infection of Mr Senico’s surgical wound. Throughout this period Mr Senico’s nerve pain was more debilitating than his knee pain, as he was suffering from shooting pain, numbness and burning sensations that would wake him at night. Mr Senico said that he was unable to walk at all without the aid of crutches.
I have referred to the contemporaneous records which support Mr Senico as to his constant use of crutches. The clinical notes have many references in that regard, and the rehabilitation report confirmed complaints about constant back pain. I note too that
Dr Bosanquet himself took a history of continual crutch use at the time of the first surgery until six months following the second surgery - a period of approximately 13 months. I am accordingly satisfied that Mr Senico was unable to walk without the assistance of crutches over a period of some 13 months between 15 November 2018 and 11 December 2019, when he attempted to return to work on light duties.
The respondent sought to establish that the onset of Mr Senico’s back condition was not connected to the accepted right knee injury. There are some difficulties with that submission.
Firstly, although Professor Bruce did state on 17 April 2020 that there was no connection, he later clarified that opinion on 1 February 2021. He pointed out that he was only treating the right knee problem, but allowed that Mr Senico’s lumbar spine may have been made symptomatic as he was on crutches, and that “it is possible” that the extended use of crutches and altered gait pattern may have exacerbated his back condition. I therefore do not read him as continuing to support a view that there was no causal connection.
This created a second difficulty. In his report of 18 June 2020 Dr Bosanquet was asked to assume that Professor Bruce’s original opinion of 17 April 2020 was that the back pain was not related. It does not appear that he was supplied with Dr Bruce’s report of 17 April 2020, but he had acknowledged receipt of nine reports from Professor Bruce in his earlier report of 7 May 2020, and would have been aware therefore that Professor Bruce’s involvement was not concerned with the spine.
In his earlier report of 7 May 2020, Dr Bosanquet had referred to the same possible causal factors as did Professor Bruce in his report of 2 February 2020 – namely, the surgeries, the extended use of crutches and the altered gait. Indeed, Dr Bosanquet had said that the back pain developed following those events. Like Professor Bruce, Dr Bosanquet’s involvement at that stage was mainly concerned with the condition of the right knee. Both medical specialists were aware of Mr Senico’s complaints about his back pain, and both had available MRI investigations which showed the presence of some pathology in the lumbar spine.
Unlike his report of 7 May 2020 however, on 18 June 2020 Dr Bosanquet did not mention those causal factors, confining his diagnosis to an opinion that Mr Senico’s back pain was “entirely” due to degenerative changes.
I found Dr Bosanquet’s opinion unhelpful. His opinion that Mr Senico’s back pain was entirely due to degenerative change is not persuasive. Having identified Mr Senico’s surgical history and long-term use of crutches as being the cause of the back pain on 7 May 2020,
Dr Bosanquet’s failure to explain why he had changed his mind on 18 June 2020 leaves me far from satisfied that his opinion has any probative weight. There was an attempt in the subsequent reports of 11 August 2020 and 23 March 2021 to justify his opinion by referring to the investigations and Mr Senico’s weight, but Dr Bosanquet finally had to resile from his opinion by acknowledging that “the crutch walking may have” aggravated the underlying changes. Having made that concession, Dr Bosanquet found that any such aggravation would have resolved “reasonably quickly,” for the reason that back pain caused from crutch walking would aggravate any underlying pathology. I do not accept that latter view. There has been no suggestion that Mr Senico’s back pain has ceased at all since its onset in December 2019, and I have considerable difficulty in accepting Dr Bosanquet’s explanation that where underlying pathology was aggravated by “crutch walking” such aggravation would therefore be minor and resolve reasonably quickly.
I found Dr Endery-Walder’s opinion to be preferable. He took a detailed and thorough history of Mr Senico’s injuries. He did not record any past history apart from an elbow problem of no consequence. Mr Senico also recalled a 1998 knee injury whilst playing soccer, which recovered fully within weeks after fluid had been drained from it.
I was unconvinced by Mr Young’s submission that the phrase “long term abnormal ambulation” could not apply to Mr Senico’s use of crutches, as the evidence showed that he only used crutches after each bout of surgery. That submission, with respect, was unsupported by the facts, as I have already found that there was ample corroboration for
Mr Senico’s evidence that he used crutches continually for 13 months.
There have been several expressions made by various specialists that it was “possible” that the use of crutches and the consequential antalgic gait were causative of Mr Senico’s back pain. It follows from what I have said that the totality of the evidence has been sufficient to demonstrate that on the balance of probabilities Mr Senico’s back pain has resulted from his right knee injury.[23]
[23] See Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [369]–[383] per McColl JA.
Mr Young submitted but faintly, that Mr Senico’s credit had been damaged by his failure to lodge any report from the physiotherapist, Olivia Caspers. It has not been suggested that the sharp pain felt whilst Mr Senico was being massaged by her has any relevance, and that submission must be rejected.

SUMMARY
The Commission determines:

Mr Sukuna Senico suffered a consequential condition to his spine resulting from an injury to his right knee sustained on 25 June 2018.

The Commission declares:

A referral of Mr Senico to a neurosurgeon for treatment and management is reasonably necessary.

The Commission orders:

The respondent will pay the cost of $89.55 for such referral.

John Wynyard
MEMBER

5 May 2021