Setrakian v Michael Hill Jeweller Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Setrakian v Michael Hill Jeweller Pty Ltd [2021] NSWPIC 123
APPLICANT:	Anna Setrakian
RESPONDENT:	Michael Hill Jeweller Pty Ltd
MEMBER:	Ms Jane Peacock
DATE OF DECISION:	18 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Injury to right knee in a fall at work; injury not disputed; injury consisted in the aggravation, acceleration, exacerbation or deterioration of underlying disease to which employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration; total knee replacement surgery was performed; it was not disputed that surgery was reasonably necessary; it was disputed that surgery was reasonably necessary as a result of the injury; evidence weighed in the balance; Held- on the balance of probabilities the surgery resulted from the injury; award for the worker.
DETERMINATIONS MADE:	1. The respondent pay the applicant’s section 60 expenses in respect of the right total knee replacement surgery performed by Professor Muderis on 27 July 2020 on production of accounts and/or receipts. 2. The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application) Ms Anna Setrakian (the applicant) seeks compensation for medical expenses as a result of injury to her right knee on 17 July 2019 in the course of or arising out of her employment as a sales assistant.
The Respondent is Michael Hill Jeweller Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

This is a claim for medical expenses.
There is no dispute that the applicant suffered an injury to her right knee at work on 17 July 2019 when she tripped and fell.
The applicant had a right total knee replacement performed by Professor Muderis on 27 July 2020.
There is no dispute that the right total knee replacement was reasonably necessary.
The dispute is whether the right total knee replacement resulted from the injury on 17 July 2019.
In the event the applicant is successful on the liability question, the respondent agrees that orders would be made in the applicant’s favour as follows:
(a) The respondent pay the applicant’s section 60 expenses in respect of the right total knee replacement surgery performed by Professor Muderis on 27 July 2020 on production of accounts and/or receipts.
(b) The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts.

PROCEDURE BEFORE THE 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.

EVIDENCE

Documentary Evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:

For the applicant:
(a) Application and attached documents.
(b) Late documents filed 22 February 2021 and 22 March 2021.
For the respondent:

(c) Reply and attached documents.

Oral Evidence

The applicant did not seek leave to adduce oral evidence and the respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

There is no dispute that the applicant suffered an injury to her right knee at work when she fell on 17 July 2019.
One year later the applicant had a right total knee replacement performed by Professor Muderis on 27 July 2020.
The applicant seeks compensation under section 60 of the Workers Compensation Act1987 (the 1987 Act) in respect of this surgery.
There is no dispute that the surgery was reasonably necessary. The respondent disputes that the surgery was reasonably necessary as a result of the injury on 17 July 2019.
This case must be determined on the evidence and in accordance with the law.
Section 60 of the 1987 Act provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is well settled that the finding does not have to be that the surgery resulted only from the injury. The surgery can result from more than one factor. The injury must be a material contributing factor to the need for the surgery.
Turning then to an examination of the evidence in this case.
The applicant gave evidence in her statement dated 1 February 2021 as follows:
“8. On 17 July 2019 I was at work at Michael Hill Store in Winston Hills and I was with my manager. I picked up my purse and turned and tripped over a cylinder on the floor. I fell on my right side hitting my bent knee to the ground and immediately felt severe jarring to my lower back and right knee. I also suffered pain in my right shoulder, but this has settled own with physiotherapy and a cortisone injection.
9. I was unable to get up and had to be assisted by my manager who took me to Winston Hills Medical centre. She had to close the store in order to take me to the Medical centre. My husband was called and he attended the Medical centre to pick me up. I do not recall the name of the doctor I saw.
10. the next morning I was in a considerable amount of pain and I went to see my family doctor, Dr Sandra Moe at St John’s Park Medical Centre. Dr Moe referred me to get scans. The scans consisted of MRIS and Xray’s etc..
11. I was then referred to Dr Giblin for my lower back and right knee pain. Dr Giblin had treated ne before for my lower back pain and he performed the fusion surgery in 2014 on my lower back. Dr Giblin recommended cortisone injection for my right knee and two cortisone injections for my lower back.
12. the injections only worked for 3 days and I was in considerable amount of pain. I was recommended hydrotherapy treatment however this was declined by the insurer. They covered the physio for my back and right knee,
13, The pain in my right leg was deteriorating to the point that I was unable to go up or down then stairs and I would be limping when I was walking.
14. I was also referred to see Professor Al Muderis, othopeadic surgeon in March 2020 for the persistent right knee pain.
15. I was off work for two weeks after the incident and returned to light duties thereafter working three to four hours a day for three days per week. I continued to work on light duties until the store closed down in March 2020.
16. I saw Professor Muderis again on 23 June 2020 and he examined my right knee and found that I medial and lateral joint line as well as the patella femoral joints. I was recommended a right knee replacement. This treatment was mot approved by the insurance company. The insurance company had until that point covered the medical expenses for the right knee injury. However following the recommendation of the right total knee replacement, they declined liability.
17. because my knee condition was only getting worse, I covered the surgery expenses at my own cost as well as using my private health insurance. The private health paid the hospital and I covered the surgeons fees.
18. a referral was sent to the insure by Professor Al Muderis however insurer never approved this and my condition couldn’t wait.
19. On 27 July 2020 I underwent right knee replacement surgery and left knee replacement surgery performed by Professor Al Muderis at Norwest Private Hospital.”
The left knee replacement is unrelated to the subject injury.
The applicant provided a further statement dated 16 March 2021 in which she notes that the report of Dr Marhart, the independent medical expert (IME) qualified on behalf of the respondent, incorrectly records that she saw Professor Al Muderis with right knee pain one month before the subject injury. I note that Dr Marchart concedes this error in his further report.
The applicant goes onto give evidence that she does not recall having ongoing right knee pain prior to the fall at work in July 2019. She says she recalls experiencing mild right knee pain some two years ago but the pain was never significant, and it went away. She says she was able to go to work and attend to her day-to-day activities without any significant issues with her right knee. She goes onto give evidence that this changed after the fall as follows:
“After the fall on 17 July 2019, I started to experience pain in my right knee that would always be there and would not go away. The pain was slowly getting worse each day to the point that I started to limp when walking and I was having difficulties going up and down stairs.”
She went onto state:
“the pain was significant in nature to the point that I was prepared to pay for the total knee replacement surgery out of my pocket/health insurance because it was giving me too much grief and I was not able to put up with it any longer.
The pain I started to experience after the fall on 17 July 2019 was interfering with my sleep and everyday life. The right knee never bothered me before the fall on 17 July 2019 but after the fall I stated to experience ongoing pain and discomfort.”
The applicant’s regular GP Dr Moe’s clinical records are in evidence.
Dr Moe provided a series of reports to the insurer. In the report dated 20 November 2019
Dr Moe noted that the applicant continued to experience pain symptoms in both knees. She noted the prognosis was guarded until further follow up with Dr Giblin.
On 27 February 2020 Dr Moe again reported to the insurer answering their questions.
Dr Moe noted the fall on 17 July 2019 causing injury to the right knee and that “the worker continues to report pain symptoms consistent with work related injury”. Dr Moe noted that the work-related injuries have not yet resolved.
On 1 April 2020 Dr Moe again reported to the insurer noting that she last reviewed the applicant on 12 March 2020 and that “she continues to present with pain in her right knee and lumbar spine.”
On 20 January 2021 Dr Moe again reported to the insurer answering a series of questions. Dr Moe notes that the applicant had ongoing right knee pain after the fall which worsened over time and locking up leading to the referral to Professor Muderis in March 2020. Dr Moe noted that there was no pain or no trouble in the knee until the applicant had the accident at work.
Following the fall on 17 July 2019 in view of the applicant’s symptomology, Dr Moe referred the applicant to Dr Giblin, orthopaedic specialist. Dr Giblin had previously performed a spinal fusion on the applicant. On 21 August 2019 Dr Giblin saw the applicant pursuant to this new referral and provided a report dated 21 August 2019 to both the insurer and Dr Moe.
Dr Giblin records a history of the fall that “she fell heavily onto both knees and onto her right side.” He noted she “was having a bit of discomfort in both knees prior to the accident; the left knee hasn’t been excessively exacerbated by this fall but the right knee is a significant issue to her.”
He recommended an MRI of the right knee.
On review on 2 September 2019 with the benefit of the MRI, Dr Giblin noted in respect of the right knee:
“The MRI is the right knee showed medial compartment degenerative changes with a tear of the medial meniscus and lateral patellofemoral compartment arthritis with a synovitis.
Clinical however most of the symptoms seem to lateral and I suspect it may be due to the synovitis and arthritis.”
He recommended a steroid injection.
On 20 October 2019 Dr Giblin provided a report to the insurer in which he notes the persisting problem with the right knee since the fall compared to prior to the fall when the right knee was not problematic as follows:
“In the past I did an L4/5 fusion for her back in 2013. I also did an arthroscopy on her left knee in 2014 and her symptoms had improved sufficiently that she was able to return to work. She didn’t have any significant problems with her back and she had some pain in both knees, more so left than right, but the right was such that she never required any treatment or wasn’t a major issue to her and just seemed to be an annoyance. Since the fall however the right knee has become more of an issue to her.”
Dr Giblin opined that the applicant has had an aggravation of underlying degenerative change of her right knee as a result of the fall on 17 July 2019.
He recommended physiotherapy and hydrotherapy.
On 22 January 2020 Dr Giblin wrote again to the insurer. He had been asked to comment on Dr Mitchell’s report who had provided an injury management report. Dr Giblin noted that he did not agree with Dr Mitchell’s opinion that the applicant’s initial work related symptoms had resolved saying:
“I don’t agree with Dr Mitchell in that regard as she still has persistent symptoms related to the fall.”
On 3 February 2020 Dr Giblin wrote again to the insurer in response to their specific questions. He opined that the applicant has had an aggravation of underlying degenerative change in her right knee as a result of the fall on 17 July 2019. He notes that the symptoms in her right knee have occurred since the fall on 17 July 2019 “hence I feel it is fair to assume that those symptoms relate to the fall.” Dr Giblin notes that “the effects of the work injury haven’t resolved as she still has current symptoms”.
In view of her persisting symptoms in her right knee the GP Dr Moe referred the applicant to Professor Muderis in March 2020.
The applicant saw Professor Muderis on 26 May 2020 pursuant to this referral and then again on 23 June 2020. On 23 June 2002 he reported to Dr Moe as to progress review as follows:
“Anna is following up with pain in both her knees which has significantly worsened since her last consult on 26 may this year. She reports that the pain in both her knees has significantly worsened and is affecting her sleep and day to day activities. The pain is constant and is requiring regular analgesics and affecting her mobility.”
He recorded positive findings on examination. He noted the x-ray’s show severe degenerative arthritis of the left knee and moderate to severe degenerative arthritis of the right knee.
Professor Muderis management plan is articulated as follows:
“We have discussed with Anna that the most durable and predictable solution for her symptoms would be a total knee replacement.
We earlier considered a total knee replacement for the left side however since she is having similar symptoms on the righty side with evidence of moderate to severe arthritis of the right knee in the X-ray as well, it is reasonable to consider a total knee replacement for the right side as well, so we are looking at doing bilateral knee replacements.”
On 23 June 2020 a request for surgery approval was sent to the insurer.
On 29 June 2020 Professor Muderis wrote to the GP Dr Moe:
“He noted that the applicant’s pain had significantly worsened since her last consult on 26 May 2020. He noted the “pain in her right knee is from a fall at work in July last year which was managed conservatively all this while, but the pain is not controlled and is worsening with each passing day”.
Professor Muderis noted the applicant’s sleep and mobility were affected by the “constant pain”.
He stated:
“we earlier considered a total knee replacement of the left side however since she is having similar symptoms on the right side and the pain is not managed with conservative treatment with the background of evidence of moderate to severe arthritis, it is reasonable to consider a total knee replacement for the right side as well so we are looking to do bilateral total knee replacements for Anna”.
On 27 July 2020 the applicant underwent bilateral knee replacement surgery at her own expense with the assistance of her private health fund.
On 14 July 2020 Professor Muderis wrote to the insurer answering a series of specific questions as follows:
“1. What is the diagnosis of Ms Setrakian’s workplace injury?
“Anna has been following up with us for quite some time and she originally presented to us with pain in her right knee some time around May 2020 when it was bothering her a little but not as much. She had originally injured herself in July last year when she was working and she sustained a fall, She was managed conservatively ever since then but now the pain has become significant and it is worsening by each passing day. The pain is not controlled and the pain is affecting her sleep and mobility as well as day to day activities. Since the pain is constant and she is constantly requiring analgesics, this is affecting her walking distance as well. She has chondral damage in her right knee which caused her significant pain and discomfort, and this injury has aggravated her knee arthritis.
2. Is Ms Setrakian’s presentation and symptoms proportionate to the described injury?
Yes, the patient had originally injured her right knee in July lats year and she was trying to manage this conservatively because she was not keen on surgical management right away, which is fair, but unfortunately now the pain has worsened over time and she is unable to manage.
3. Has the employment condition dated 17/07/2019 resolved? If not does the employment related condition remain the substantial contributing factor?
The employment related injury that the patient sustained in July last year has not resolved. Although she was attempting to manage this conservatively as mentioned before, it has not resolved, and she requires surgical intervention to manage this in the form of total knee replacement. We do believe the employment related condition is a substantial contributing factor since it aggravated and exacerbated her arthritis in her knee and deconditioned her knee which is now causing her significant grief in the knee.
4. In your medical opinion and given Ms Setrakian’s pathology, has a pre-existing degenerative condition been aggravated/accelerated? If so, please detail and advise a timeframe for when this is expected to cease.
In my opinion this arthritis which she previously had was very lid and she did not have any pain in her right knee which was significant before the fall. Although after the fall she was trying to manage it conservatively, now it has worsened over time because of the fall and the knee has deconditioned. For this aggravation of the arthritis to cease it will be very difficult without surgical management. The patient will be in constant pain and she will not be able to function and perform her daily activities. We recommend that she undergoes a total knee replacement and with the total knee replacement the pain should resolve, and she would be able to regain her mobility.”
The surgery in the form of right total knee replacement was performed by Professor Muderis on 27 July 2020.

In his report dated 22 December 2020, Professor Muderis wrote to the insurer as follows:
“She had underlying arthritis that may not have become symptomatic until she had the fall at work which was exacerbating and aggravating factor which caused her to be in significant pain.”

His previous report as outlined above indicates that the surgery was being performed because the applicant’s right knee pain had become significant and was unable to continue to be managed by conservative means.

The applicant relies on the reports of Dr Habib, consultant in orthopaedics and trauma, and is the IME qualified on behalf of the applicant. Dr Habib saw the applicant at the request of her lawyers on 3 November 2020 and he provided a report back to them on 6 November 2020. He provided a further report dated 19 March 2021.

Dr Habib takes a history broadly consistent with the other evidence. He conducted a physical examination which post-dated the knee replacement. He reviewed the radiology. He also reviewed the clinical notes of the treating GP and the medical reports of Dr Giblin and Professor Muderis.

Dr Habib notes the applicant had “some persisting right knee osteoarthritis with occasional discomfort only prior to the said fall at work on 17/07/19”.

Dr Habib considered that the fall of 17 July 2019 constituted a “severe aggravation injury’ of the right knee which continued to be painful also resulting in restricted mobility and moderate disabilities.. She had “asymptomatic degenerative changes of the right knee at the time of the said fall on 17/07/19, but the severe direct trauma to the medial tibia femoral and the patella femoral compartments. This having failed to respond to the non-surgical conservative measures came to total knee replacement.”

He opined in respect of causation as follows:

“Her employment at the time of the said incident on 17/07/2019 is the substantial contributor to her current back and right knee. Mrs Setrakian has had long standing left knee issues but it was only after the fall on 17/07/2019 that she developed right knee complaints. I don’t believe the left knee condition bore any relation to the need for right knee surgery.”

It is made clear earlier in his report that he was aware that she had episodic mild discomfort in her right knee prior to the fall on 17 July 2019.
In his further report dated 19 March 2021, he notes that the applicant has early degenerative changes in the right knee and that she had consulted with Professor Muderis back on 5 June 2018 with left and right knee pain, with the left being more significant than the right. He considered that she was asymptomatic in respect of her right knee at the time of the fall on 17 July 2019. He considered that she suffered severe aggravation of the right knee when she fell on 17 July 2019. He opined that:
“the ongoing and ever increasing right knee symptoms and signs of pain, stiffness and activity limitations were caused by the 17/07/19 right knee injury aggravation of the pre-existing asymptomatic changes and acceleration of the osteo-arthritic changes leading to the need for major right knee surgery.”
The respondent counsel made submissions that Dr Moe’s clinical records supported a view that the applicant had significant problems with her right knee prior to the fall on 17 July 2019. I am not persuaded by this submission. It requires that I interpret the clinical notes in a speculative fashion and ignore the totality of the evidence. I have had regard to the totality of the evidence including the clinical notes of Dr Moe, her various reports back to the insurer, the reports of those medical professionals that were treating the applicant, namely
Professor Muderis and Dr Giblin. The applicant’s evidence that she had minimal symptoms in her right knee prior to the injury on 17 July 2019 and symptoms of pain and restriction that increased after the direct fall on her bent right knee on 17 July 2019 I find to be supported when the totality of the evidence is weighed in the balance.
The respondent relies on the opinion of Dr Machart, orthopaedic specialist, who was the IME qualified on behalf of the respondent. Dr Marchart provided two reports dated 17 September 2020 and 9 October 2020.
Dr Machart saw the applicant on 17 September 2020 at the request of the insurer and provided a report back to them on the same date.
He records a history of the fall on 17 July 2019 which injured her right knee, back and right shoulder. He noted that she was taken by the manager to the medical centre. X-rays were conducted the next day. He noted referral to Dr Giblin for the back injury. He noted the right shoulder was treated by injection which gave good relief. In respect of the right knee, he recorded:
“Injection into the right knee was not helpful. She was referred to Dr Al Muderis, orthopaedic surgeon. She was treated operatively. On 27 July 2020 she went through a right knee replacement. She is recovering from replacement and is using a walking stick.”
He then reviewed the various medical reports that are in evidence.
Dr Machart came to the following opinion on diagnosis:
“both knees were symptomatic due to osteoarthritis prior to the injury on 17 July 2019. Dr Al Muderis saw Mrs Setrakian with right knee pain a month before the injury. The severity of the persisting condition appeared to be downplayed by the narrative of recollection by Mrs Setrakian. There was substantial osteoarthritis in both knees. The incident on 17 July 2019 caused no additional structural injury. The narrative ibn the medicals indicated that the symptoms initially settled and the became worse again. Impact of the injury on the right knee was temporary. Progressive osteoarthritis symptomatically started prior to the injury, led to knee replacement. I do not have evidence that injury on 17 July 2019 alternated the natural history of osteoarthritis to a significant degree to cause right knee replacement to be earlier than would have been otherwise.”
When I weigh Dr Machart’s opinion in the balance with the other evidence before me, it is clear that Dr Machart at least in his first report has relied on an erroneous interpretation of the history he gleaned from the medical records. Professor Muderis did not in fact see the applicant with right knee pain a month before the injury. He saw her on 5 June 2018 in respect of both knees. There appears to be no further problems with the right knee recorded in the clinical records until the injury on 17 July 2019. Moreover the question that has to be determined by me is whether the surgery was reasonably necessary as a result of the injury. It is well settled that the injury does not have to be the only factor resulting in surgery although it has to materially contribute to the need for surgery. I have to be satisfied on the balance of probabilities that the surgery was reasonably necessary as a result of the injury.
Dr Machart provided a supplementary report on 20 October 2020 at the request of the insurer.
He states:
“both knees were symptomatic due to osteoarthritis prior to the knee injury on 17 July 2019. Osteoarthritis was evident in both knees. The injury on 17 July 2019 caused no additional structural injury that changed the course of the prognosis for knee osteoarthritis leading to knee replacement.”
Dr Machart reviewed the documentation of the treating medical professionals. He reviewed Professor Muderis’ reports and made the following comment:
“The treating orthopaedics’ surgeons chronology of events was not highly suggestive of substantial trauma to the right knee at the DOI July 2019. He did not comment on the right knee until subsequent consultation and the after substantial increase in symptoms from May onwards. This is 10 months after DOI. It would be difficult to equate the progression of osteoarthtis commencing nearly 12 months later to injury. It would seem that the right knee symptoms were not particularly severe at the time when
Dr Al Muderis saw her first, and then there was deterioration commencing several months later. Given that there was already established osteoarthitis, I would say that it is highly unlikely that the acceleration of the osteoarthritis was caused by the injury. This is product of natural progression of osteoarthritis.”
Dr Machart reviewed the notes of the consultation on 30 October 2019 with Dr Giblin which he records as follows:
“Initially seen 21 August 2019: 17 July 2019. Fell on both knees. Since that time right shoulder pain, right thoracolumbar spine, pain radiation into the lumbar are, pain in the left leg to the knee. Discomfort in both knees prior to the accident. The left not excessively exacerbated by the fall. The right was a significant issue to her”
Dr Machart comments as follows:
“●     I also point out an error in my original IME in the document. DR Al Muderis did not see Mrs Setrakian one month before the injury, He saw her rather one year before the injury and noted arthritis in both knees.
·        Contemporaneous evidence is Dr Giblin documented increasing severity of the right knee pain after the injury, Dr Al Muderis’ documentation was not convincing on this issue, as I outlined.
·        Given that there was osteoarthritis, and given that there was likely progression of osteoarthritis over the years, and given that there was no structural injury caused by the DOI, it is less likely that the need for the knee replacement was caused by the injury as opposed to pre-existing osteoarthritis. There is an element of doubt based on inconsistent medical documentation.
·        Based on the information before me, and review of documentation today, it appears more likely than not that the right total knee replacement was conducted for osteoarthritis rather than the impact of injury.”
Notwithstanding that Dr Marchart notes the contemporaneous reports of Dr Giblin which document the increasing severity of the right knee pain after the injury, he does not take this into adequate account.
Moreover the surgery does not have to be found to result from the underlying osteoarthritis or the injury. The need for surgery can be found to result from both.
It is not disputed that the applicant injured her right knee in the fall at work on 17 July 2019. It is not disputed that the injury consisted in the aggravation, acceleration exacerbation or deterioration of an underlying disease of osteoarthritis to which her employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration. I am satisfied on the balance of probabilities that she experienced symptoms of pain and restriction of movement after the fall. I am satisfied she initially tried to manage these symptoms conservatively but conservative measures failed to alleviate the pain and faced with increasing pain and restriction of movement she came to a right total knee replacement on 22 July 2020. It is not disputed that the surgery was reasonably necessary. It was disputed that it resulted from injury.
When I weigh al of the evidence in the balance, I prefer, for the reasons given throughout, the opinions of the treating doctors Professor Muderis, Dr Giblin and Dr Moe supported by the opinion of the IME Dr Habib to that of Dr Machart. I have weighed all of the evidence in the balance. I am satisfied, when all of the evidence is weighed in the balance, that the applicant had at worst mild discomfort in her right knee in prior to the injury which did not limit her activities. She saw Professor Muderis on 5 June 2018 for both left and right knee pain. She had an injection in her right knee and the clinical records of Dr Moe read in conjunction with her reports and the reports of Professor Muderis are consistent with the right knee pain settling down in 2018. After the injury on 17 July 2019 which was a direct fall on her bent right knee, she had severe pain in her right knee and this increased in severity over time. This is supported by the reports of Dr Moe and Dr Giblin. Conservative treatment was attempted to manage her right knee pain but did not alleviate her symptoms. Her symptoms continued to worsen and she was referred to Professor Muderis. In view of the constant pain in her right knee, not alleviated by conservative management, and impacting her sleep and mobility, a right total knee replacement was recommended and performed on 27 July 2020. I am satisfied when all of the evidence is weighed in the balance, on the balance of probabilities, that the surgery was reasonably necessary as a result of the fall at work onto her right knee on 17 July 2019.
Accordingly there will be an award for the applicant in the terms agreed by the parties as follows:
(a) The respondent pay the applicant’s section 60 expenses in respect of the right total knee replacement surgery performed by Professor Muderis on 27 July 2020 on production of accounts and/or receipts.
(b) The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts.

[2021] NSWPIC 123

18 May 2021