Smith v Allstaff Australia Sydney Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Allstaff Australia Sydney Pty Ltd [2022] NSWPIC 45
APPLICANT:	Adam Smith
RESPONDENT:	Allstaff Australia Sydney Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	4 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed cost of left total hip replacement pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); claimed consequential condition as a result of accepted injury to lumbar spine; respondent did not dispute that surgery was appropriate form of treatment; applicant objected to admission of medical evidence on the basis that it had not been provided to him, pursuant to section 73 of the 1987 Act and clause 41 of Workers Compensation Regulation 2016 (Regulation); consideration of Murphy v Allity Services Pty Ltd, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Chown v Tony Madden Refrigeration Transport Limited, RSL (QLD) War Veterans Homes Ltd v Watkins; Held - compliance with section 73 of the 1987 Act and clause 41 of the Regulation is mandatory; respondent unable to establish compliance with Act and Regulation; medical evidence not admitted; applicant sustained consequential condition of his left hip as a result of injury to his lumbar spine; proposed surgery is reasonably necessary as a result of injury; respondent to pay the cost of surgery, pursuant to section 60(5) of the 1987 Act.
DETERMINATIONS MADE:	1. That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act 1987, the cost of left total hip replacement.

STATEMENT OF REASONS

BACKGROUND

The applicant, Adam Smith (Mr Smith) was employed by the respondent, Allstaff Australia Sydney Pty Ltd (Allstaff) as a picker/packer. Allstaff is a labour hire organisation, and it placed Mr Smith at a Woolworths distribution centre.
Mr Smith has sustained accepted injuries to his back and right leg as a result of the nature and conditions of his employment, deemed to have occurred on 1 March 2018. He also claims to have developed a consequential condition of his left hip.

The applicant claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of proposed left hip replacement surgery.
On 15 June 2020, the respondent’s workers compensation insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). EML disputed liability for CT guided injection of the applicant’s left hip.
The notice stated that the applicant had attended an independent medical examination (IME) by neurosurgeon Dr Peter Bentivoglio on 6 December 2019, and a supplementary report had been requested to determine the claim, and whether the proposed injection was reasonably necessary. “At this stage”, EML asserted that the proposed injection was not reasonably necessary, as required by section 60 of the 1987 Act. EML advised that it would review its decision on receipt of the report from the IME. The report or document stated to be attached to the notice was the treatment request of Dr Anthony Burneikis dated 4 May 2020.
On 26 June 2020, EML issued the applicant with a further notice pursuant to section 78 of the 1998 Act. It disputed that the claimed consequential condition of his left hip resulted from his accepted injury on 1 March 2018. EML disputed that the applicant’s left hip injury arose out of his employment, as required by section 4 of the 1987 Act [sic]; and that his employment was a substantial contributing factor to his left hip condition [sic]. It disputed, relevantly, that medical or related treatment was reasonably necessary as a result of the injury, as required by sections 59 and 60 of the 1987 Act. The reports and documents stated to be attached to the notice were Dr Burneikis’s response to questions dated 4 June 2020 and, once again, his treatment request dated 4 May 2020.
By letter dated 22 July 2021, the applicant’s solicitors requested on his behalf a review of EML’s decision and served a report from Dr Ali Gürsel dated 26 June 2021.
EML’s decision was reviewed by iCare Workers Insurance (iCare), which issued a notice dated 5 August 2021 (the review notice). It advised that the decisions dated 15 June 2020 and 26 June 2020 were maintained. This notice did not refer to any attachments, noting that the information considered was the letter requesting the review and the attachment; and the section 78 notices and attachments, which were not attached. The notice referred to the attachment of reports and documents that had “not previously been shared with” the applicant.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 September 2021. He claimed to have suffered aggravation, acceleration or exacerbation of a disease, deemed to have occurred on 1 March 2018. He claimed that the nature and conditions of his employment required him to undertake duties of a repetitive and strenuous nature, mainly consisting of bending down and lifting boxes filled with fruit and vegetables, generally weighing between 5kg to 16kg each, off pallets.

10.The applicant also claimed that on 1 March 2018, he was required to lift a box of avocados, weighing approximately 15kg, when he twisted around and sustained the immediate onset of sharp pain throughout his back, which radiated down his right leg. He claimed to have subsequently developed a consequential injury to his left hip, as a result of transferring his upper body weight and over relying on his left hip, as he was unable to manoeuvre with his right leg/side due to referred pain down his right leg from his back injury.
11.The Application claimed the sum of $6,225, being the cost of left total hip replacement.
12.The respondent lodged its Reply on 6 October 2021.

ISSUES FOR DETERMINATION

13.The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained a consequential condition of his left hip as a result of the accepted injuries to his back and right leg (causation).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for conciliation/arbitration hearing by telephone on 14 December 2021. Mr McManamey of counsel, instructed by Mr Joy, appeared for the applicant, who was present. Mr Rickard of counsel appeared for the respondent, instructed by Mr Turner. Ms Liu of EML also attended.

15.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.

Admissibility of evidence of Dr Peter Bentivoglio and Dr Anthony Burneikis

16.The applicant withdrew his reliance on the report of Dr Bentivoglio, dated 19 December 2019, which was attached to the Application. While accepting that the respondent had advised in its Reply that it wished to rely on all the documents in the Application, the applicant objected to the tender of the report by the respondent, as being in contravention of clause 41 of Workers Compensation Regulation 2016 (the Regulation) and section 73 of the 1998 Act.
17.The applicant referred to the dispute notices dated 15 June 2020 and 26 June 2020, neither of which identified Dr Bentivoglio’s report as being disclosed as required by clause 41. The initial notice referred to the examination but there is no reference to the content of the report. Clause 41 required that it be provided with the section 78 notice.
18.Dr Bentivoglio’s report did come into the applicant’s hands and was provided to Dr Gehr, whom he qualified. The applicant assumed that it was probably provided to his general practitioner (GP), which was the context in which he first became aware of the report.
19.The applicant submitted that the onus is on the respondent to establish that Dr Bentivoglio’s report was provided to him as required by section 73. He relied on the decisions in Chown v Tony Madden Refrigeration Transport Limited [2005] NSWWCCPD 159 (Chown); and RSL(QLD) War Veterans Homes Ltd v Watkins [2013] NSWWCCPD 44 (Watkins). If the doctor’s first report is inadmissible, then his supplementary report is also admissible, as it relies on his findings on examination in the first report and does not disclose the basis for his opinion.
20.The applicant also objected to part of the attachment to the respondent’s Application to Admit Late Documents. This consists of responses by Dr Burneikis to a questionnaire from EML, dated 12 June 2020. The applicant objected to part of question 4, which reproduced part of Dr Bentivoglio’s report. The applicant submitted that the respondent cannot do indirectly what it cannot do directly, relying on the decision of Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 (Xeras). The applicant did not object to the remainder of Dr Burneikis’s evidence.
21.The respondent was unable to establish that Dr Bentivoglio’s first report was attached to the section 78 notice/s, but submitted it is clear from Dr Gehr’s report that both reports were in the possession of the applicant’s solicitors, were put to him, and he responded. There is therefore no prejudice to the applicant by the admission of the reports.
22.The respondent submitted that the general discretion in section 289A(4) of the 1998 Act overrides section 73 of the Act, notwithstanding its apparent mandatory provisions. It submitted that both Dr Bentivoglio’s reports are admissible, and, therefore, the entirety of Dr Burneikis’s response to EML is also admissible.
23.The parties agreed that, in order to deal with the matter expeditiously, I would determine the applicant’s objection to the evidence in the course of determining the dispute.
24.The respondent conceded that it is unable to establish that Dr Bentivoglio’s report dated 19 December 2019 was attached to either section 78 notice. Neither notice referred to the report, nor was it referred to in the review notice dated 5 August 2021. The respondent is unable to establish when, and in what circumstances, the report came to be in the possession of the applicant’s solicitors and/or the applicant himself. The onus is on the respondent to establish that the report was provided to the applicant in accordance with section 73 of the 1998 Act and clause 41 of the Regulation.
25.I do not accept the respondent’s submission that the discretion provided for in section 289A(4) of the 1998 Act overrides section 73 of the Act.
26.Section 289A of the 1998 Act provides:

A Further restrictions as to when a dispute can be referred to “289Commission

(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if--
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.

(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

27.Section 289A(4) of the 1998 Act refers to previously unnotified matters. It does not refer to evidence that has not been served in accordance with the Act and the Regulation.
28.Section 73 of the 1998 Act is mandatory in its terms. It provides:

73 “Insurer to provide copies of reports to worker

(1)     The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker's legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.
(2)     Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators' reports, rehabilitation providers' reports and reports of assessments under section 40A (Assessment of incapacitated worker's ability to earn) of the 1987 Act.
(3)     If an insurer fails to provide a copy of a report as required by the regulations under this section--
(a) the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and
(b) the report is not admissible in proceedings on such a dispute before the Commission, and
(c) the report may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.”

29.Clause 41 of the Regulation provides:
“(1) This clause applies to the following types of reports that an employer or insurer has in the employer's or insurer's possession--
(a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b) certificates of capacity,
(c) clinical notes,
(d) investigators' reports,
(e) workplace rehabilitation providers' reports,
(f) health service providers' reports,
(g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.

(2) This clause applies to the following decisions of an employer or insurer relating to an injured worker--
(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.

(3)     For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).
(4)     The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
(5)     If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report--
(a) in the case of a medical report, certificate of capacity or clinical notes--to a medical practitioner nominated by the worker for that purpose, or
(b) in any other case--to a law practice representing the worker.

(6) If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may--
(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b) make such other directions as the Authority thinks fit.”

30.If an insurer fails to provide a copy of a report in accordance with the Regulation, it “cannot use” the report to dispute liability to a worker, and the report “is not admissible” in any proceedings about the dispute before the Commission.
31.In the matter of Chown, Presidential Member Dr Fleming held that compliance with section 73 of the 1998 Act and clause 37 of the Regulation (the relevant Regulation was Workers Compensation Regulation 2003 – the 2003 Regulation) was mandatory.
32.Dr Fleming said at [17]:
“There is no doubt that a purposive approach to statutory interpretation is the correct way to consider the relevant provisions. However, in my view section 73 of the 1998 Act and clause 37 of the Regulation are unambiguous in their language and the serious consequence of non-compliance is exactly what those provisions intended. They have a broader, underlying purpose, not referred to by the Arbitrator, but consistent with the objectives of the Workers Compensation Acts, namely to ensure a timely, effective and transparent determination of a workers entitlement to compensation as a result of a work injury. Where a worker is not informed of the basis to deny compensation, the obvious questions of whether to accept or appeal that decision, and how and when to return to prior employment may remain unresolved. The consequence of non-compliance with section 73 and clause 37 is that the reports of Dr Van Der Rijt and Dr Mills are not admissible in the proceedings before the Arbitrator. The Arbitrator has no discretion to avoid the consequences of these provisions”.

33.The insurer had in fact provided Mr Chown with the reports on which it sought to rely, but it had not done so in compliance with clause 37, which required that a copy of the report must be provided within 10 days of its receipt.
34.His Honour Judge Keating also considered the obligations imposed by section 73 of the 1998 Act and clause 37 of the 2003 Regulation in Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60. His Honour said at [41]
“The Regulation expressly applies to reports obtained under section 119 of the 1998 Act, and makes the provision of those reports to injured workers a mandatory requirement on employers or insurers, to provide a copy of any relevant report to which the clause applies…and the obligation extends to the provision of reports relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reason for the decision…” (emphasis in original).

35.In Watkins, Deputy President Roche referred to an application by the respondent to rely on fresh evidence. He observed that, on the face of it, the insurer had failed to comply with clause 46(3) of Workers Compensation Regulation 2010, which was then the relevant regulation. Clause 46(3) was in substantially the same form as the current clause 41. The insurer had failed to attach to its dispute notice, or to serve at any other time, a “relevant report”.

36.Counsel for the appellant employer submitted that the report in question was in the GP’s notes and the respondent worker’s solicitor could have obtained it before the arbitration.
37.Roche DP said that this submission had “ignored cl 46(3) of the Regulation, which is in mandatory terms”. It was not to the point that the GP held a copy of the report, if that was in fact the case, and the respondent could have obtained it from him before the arbitration. “The insurer was required to provide a copy” to her.
38.Both Chown and Watkins are authority that the requirement for an insurer to provide a worker with copies of the evidence on which it seeks to rely in any proceedings before the Commission is mandatory. Neither decision held that section 289A(4) of the 1998 Act overrides section 73 of the Act, and I reject the submission that it does.
39.The respondent was required to provide the applicant with a copy of Dr Bentivoglio’s report dated 19 December 2019. It cannot establish that it did so. It is unclear how the report came to be in the hands of the applicant’s solicitors, but the respondent is not able to satisfy me that it has complied with the mandatory requirements of the legislation. The report is therefore inadmissible.
40.In the circumstances, the respondent is therefore not entitled to rely on the report of Dr Bentivoglio dated 17 August 2020, which relies in part on his earlier report to found its conclusions. The respondent did not submit otherwise. The report is inadmissible.
41.As regards the submission that the report of Dr Burneikis dated 12 June 2020, insofar as it reproduces Dr Bentivoglio’s evidence, is inadmissible, the applicant relies on the decision of the Court of Appeal in Xeras.
42.Xeras was a decision regarding costs in workers compensation proceedings. The relevant legislation contained a prohibition against orders for costs against workers, except in very limited circumstances, which did not apply in that case.
43.Having determined that, on its proper construction, the order made in the Compensation Court was an order for payment of costs by the worker, and accordingly contravened the prohibition, Handley JA held that it was a well-established principle that what cannot be done directly cannot be done indirectly.
44.The respondent did not submit that that part of Dr Burneikis’s report that reproduced part
of Dr Bentivoglio’s report was admissible if Dr Bentivoglio’s report was excluded. As Dr Bentivoglio’s report has not been admitted, it is impermissible for the respondent to rely on that part of the report that forms part of Dr Burneikis’s report. That part of the report is inadmissible.

EVIDENCE

Documentary evidence

45.The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments, excluding Dr Bentivoglio’s report dated 19 December 2019;
(b)    Reply and attachments, excluding Dr Bentivoglio’s report dated 17 August 2020, and
(c)    Application to Admit Late Documents dated 6 December 2021 and attachments, filed by the respondent, excluding that part of paragraph 4 that reproduces part of Dr Bentivoglio’s report dated 19 December 2019.

Oral evidence

46.There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Adam Smith

47.Mr Smith’s statement is dated 7 September 2021.
48.Mr Smith commenced employment with the respondent as a picker/packer in or about 2017. He worked at a Woolworths distribution centre. His duties included packing products; meeting customer orders in a timely manner; monitoring product quality; following safety procedure; maintaining a clean and safe work environment; and general duties incidental to packing products.
49.The applicant was required to perform repetitive and strenuous movements for prolonged periods. His statement refers to the nature of these duties. He developed injuries to his lower back and right leg, deemed to have occurred on 1 March 2018. As a result of walking with an altered gait, he developed a consequential injury to his left hip.
50.Mr Smith worked a minimum of 40 hours per week and often worked overtime. He worked in a fast-paced environment and rarely took breaks. He completed all his duties on his feet, often standing for long periods. The job was very physically demanding, and he always finished a shift feeling sore and physically drained.
51.On or about 1 March 2018, the applicant was lifting boxes of avocados. He was stacking three boxes, with a collective weight of approximately 15kg, on top of each other. As he approached the end of the pallet, he was lifting the boxes from a low bending position and twisting to place them onto the pallet. During one twisting movement, he felt a twinge and the onset of immediate pain in his lower back.
52.The applicant reported the incident to a supervisor and finished his shift. When he walked into his house, the pain in his lower back increased and he felt pain radiating down his right leg.
53.The applicant consulted his GP, Dr Ali Moghaddam, the next day, Dr Moghaddam recommended physiotherapy and he began sessions with Gorokan Physio Solutions. He initially found them helpful and felt comfortable returning to work.
54.In or about mid-April 2018, the applicant returned to work, having been cleared for light duties. Despite this, he was placed into heavy lifting duties and required to complete his pre-injury duties. The constant bending, twisting and lifting heavy objects aggravated his lower back and right leg pain, making his symptoms worse.
55.From May 2018 to February 2019, the applicant tried to manage his pain with medication and stretches, but the condition of his lower back and right leg got progressively worse and more difficult to manage. He was informed by management that he was not able to move to areas involving lighter lifting. He struggled to complete his duties with constant pain and restriction in his lower back and right leg.
56.During this period, the applicant had begun to develop a limp and walked with an altered gait. Due to constant pain in his right leg and numbness in his right foot, he attempted to avoid placing any weight on it. He shifted all his weight onto his left leg and hip. He weighed approximately 110kg and walking or standing placed significant strain on his left hip. He did not notice any significant pain in his left hip, besides some general discomfort and stiffness.
57.In or about March 2019, the applicant’s supervisor advised him that it had been noticed
that he was struggling with work and should see a doctor. The applicant consulted Dr Moghaddam, who advised him that the condition of his lower back had worsened, and he should cease work. He was sacked because he was injured. He was told he was no longer suitable for the role because he was injured, and they did not have light duties to offer as a return to work plan.
58.From September 2019 to January 2020, the applicant tried to manage his symptoms with medication and physiotherapy. This provided only temporary relief from the constant pain and stiffness in his lower back and right leg.
59.During this time the applicant noticed the onset of constant pain and stiffness in his left hip. He had been walking with a significant limp and altered gait, shifting all his weight onto his left leg. When he walked around the house or to the shops, he felt pain and discomfort in his left hip. If he tried to walk after sitting for an extended period, his left hip would feel stiff and restricted in its movement. His lower back was more painful and remained the priority for treatment.
60.During March-April 2020, the applicant began consulting exercise physiologist Joshua Hall, complaining of significant discomfort and pain in his left hip. Mr Hall spent most of the sessions trying to get the cramps out of his left hip and left leg. He stressed the importance of the applicant not shifting his weight onto his left leg and hip when he walked.
61.On or about 4 May 2020, the applicant was referred to Dr Burneikis, who recommended he have an injection into his left hip but said he would be likely to need a left hip replacement in future.
62.For the next few months, the applicant found he was placing a lot of pressure and weight on his left hip, due to his back injury. He felt radiating pain down his right leg and foot, which often caused them to be numb. He often transferred most of his upper body weight to his left side/hip to be able to move as freely as he could. He often walked with a limp.
63.The applicant had two injections to his left hip, which provided only temporary relief.
64.In about September 2020 the applicant began work as a sales representative at a motorcycle dealership. He had to constantly shift between standing and sitting to avoid aggravating the pain and stiffness in his lower back, left hip and right leg. His limp was very prominent, and customers would often comment on it.
65.From November 2020 to May 2021, the applicant continued to have constant pain and restricted movement in his lower back, left hip and right leg. He began consulting pain management physician Dr Hasher Kadavil.
66.On or about 25 June 2021, the applicant was referred to Dr Ali Gürsel, who noted that the source of his left hip pain was his altered gait from his work injury, which had exacerbated his left hip symptoms. Dr Gürsel opined that he required a total hip replacement.
67.The applicant had constant pain and stiffness in his lower back, left hip and right leg. He had numbness and pins and needles throughout his right leg and avoided placing weight on it. He still walked with a limp and altered gait that further aggravated his left hip. Medication and stretches provided only temporary relief.
68.The applicant disagreed with Dr Burneikis’s opinion that his left hip injury was not related to his lower back injury. He believed that, had it not been for his lower back injury, he would not now require a total left hip replacement. In the past, he had never experienced problems or pain in his left hip.

Medical evidence

Wallarah Bay Medical Centre

On 26 May 2011 and 14 February 2012, there are records of attendance for osteoarthritis, but no other detail is provided.
On 9 October 2012, the reason for the applicant’s attendance was recorded as osteomyelitis, with “further admission with osteomyelitis of the left hand – carpal bones” also recorded.
On 16 October 2017, the applicant presented with groin pain after lifting a load at work “last Friday”. There was no radiation of the pain and it eased with rest over the weekend.
On 1 March 2018, there is a record that the applicant hurt his back at work when lifting heavy fruit. He had pain in the middle lower lumbar region. This was likely msk [musculoskeletal] pain.
On 5 March 2018, the applicant’s back had fully recovered and he was given a final workers compensation certificate.
The applicant presented on 9 March 2018 with a flare up of back pain, mainly in the lower middle lumbar region. He continued to present with back pain from March 2018 onwards.
On 21 November 2018, there is a notation that the applicant had an old injury to his back, was on WorkCover and was supposed to have physio, as he had discomfort and pain in the groin. He was “trying to move and lift some stuff at work yesterday and got pain back while he was twisting.” The applicant had pain in the groin and the medial side of the left thigh. There was no radiation or neurovascular deficit and no red flags. The applicant “favoured the affected limb with walking”. Flexion of the hip caused pain in the left groin. There was no trochanteric pain or tenderness. There was pain over the groin and inguinal area.
On 26 November 2018, the pain had settled, and the applicant walked and moved easily. Examination was unremarkable. He was to go back to normal duties with the needed caution.
On 1 February 2019, the applicant presented with pain in the left knee. He had “tried to carry stuff’, twisted, felt pain in his left knee and fell. He had pain and swelling. He had “never had problems with his left knee”. I note here that there was an earlier twisting injury to the left knee in September 2016, when the applicant ran across a road.
On 5 February 2019, the applicant felt much better, his only problem being on stairs. He was to trial normal duties with extra caution.
The applicant presented on 11 March 2019 with a flare up of back pain and discomfort. There was no specific fall, injury or trauma. There was no radiation of the pain. His gait was normal, but he walked with caution. There was pain over the lower spine and trochanteric areas.
On 29 March 2019, the applicant had started physio and was “a bit better in the back”, but the physio believed his hip was impacting his recovery. They discussed the results of his X-ray. Given the extent of his hip problem and the trouble he had walking and limping, he might benefit from seeing a specialist. He was referred to Dr Burneikis.
On 6 May 2019, it was recorded that the applicant’s pain was transferring to his right side. He had numbness and pins and needles in his right leg.
On 4 June 2019, the diagnosis of lumbar disc disease with right sciatica was recorded.
On 6 July 2019, the notes record that the applicant didn’t get approval to see the orthopaedic specialist. He was not responding to physio and had severe pain in the back, numbness in the right leg “and lateral side of the pain” [sic]. He had burning pain, worse at night.
On 22 August 2019, the applicant “feels even got worse”. He was getting pins and needles and numbness in the calves. He had an appointment the next week with Dr Marc Coughlan.
On 29 November 2019, the applicant was still in pain and limping from the hip. The pain was affecting his function and life, “hard to walk or doing [sic] anything”.
On 24 December 2019, the notes record that the applicant had similar numbness in the right foot and trouble walking.
On 5 February 2020, the notes record that the results of the investigations were discussed. The applicant had “severe OA in the hip”, which was most likely the cause of the pain and discomfort. “Not sure how the insurance is going to proceed, might need to see the orthopaedic surgeon again”.
On 3 March 2020, the applicant attended with the rehabilitation provider, “discussed the recent results, letters from the independent doctor assessing him and bone scan, unlikely to have the pain coming only from the back and possibly big component of it is coming from the hips [sic] as well…”
On 15 June 2020, the notes record that insurance had rejected the injection, believing “not coming from a work injury”, but “big possibility that it is related to the work injury in the way for compensation of his pain”. There was improvement in the applicant’s function and movements overall.
On 30 June 2020, there is a record that the injection of the hip had been rejected as Dr Burneikis had advised them it was “not related to work that much”. The applicant still had trouble with his back and pins and needles in the right lower limb, improved with exercise physio but not completely gone.
On 15 July 2020, it was noted that the applicant had had the injection, felt better in his hip, and had some more movements. He still had numbness and was waiting for approval for the rest of the treatment plan.
On 14 August 2020, the applicant was limping and had pain and discomfort after work, “in spasm and trouble with walking”. He liked his job and was keen to continue. It was “a bit hard to keep up the pace”. He did physio after work.
The applicant was walking better on 7 September 2020 and not in as much pain. He felt he was coping better with his exercises. He was happy to increase his hours as a trial.
On 1 October 2020, the applicant felt a bit better and was happy to increase his hours to eight per day, although he was worried about how he might cope. He noticed he walked better and did not struggle “that much”.
On 21 October 2020, it was noted that the applicant wasn’t confident to add another day to his work, preferring to stay on the same days. He was coping well with work and treatment and the physio was happy with his progress.
It was noted on 29 October 2020 that the applicant had tried an extra day at work and was “a bit struggling”.
The applicant attended on 12 November 2020 for his workers compensation certificate. He had “ups and downs with the pain”. It was overall manageable. He was aiming to increase his capacity to four days per week “and see how he goes”.
On 10 December 2020, it was noted that the applicant “had pains but bearable”. He was happy and ready to add another day’s work in the next fortnight, which would be his normal duties.
On 7 January 2021, the applicant was working 4.5 days per week, “similar with pain with the usual ups and downs”. It was manageable and he was able to cope with it and do his job, despite getting quite sore at the end of the day.
It was noted on 24 February 2021 that the applicant struggled with walking. He still went to work and tried his best to do the hours, but it had been a struggle “and even colleagues have noticed he has trouble with walking and standing after certain time”. He struggled with his hip again, “while it was fine since the injection, apart from some pain and a bit of waddling gait”.
On 17 March 2021, the applicant had felt a bit better since the injection. There was marked deterioration of arthritis in his hip. He had been told it wasn’t work related, “but given the results and findings, rapid decline can be related to the work injury and the treatment he goes [sic] for it, needs to talk to Dr Burneikis about it”.
On 28 April 2021, the applicant was much the same. His hip was giving him trouble and didn’t respond as much to the injection. He was able to cope at work but could have bad days at the end of the day.
On 26 May 2021, it was noted that the applicant had involved a lawyer. He was “not after benefit, just wants to get the right treatment”. He was deteriorating faster and felt it a struggle to work and function at home. He had struggled even standing from the toilet and had radicular pain down both limbs. He was keen to keep his job.
On 11 August 2021, it was noted that the applicant was struggling with pain and working his current hours and days had been a struggle. He had approval for a back injection and was waiting to hear about the status of his hip surgery.

Dr Anthony Burneikis – orthopaedic surgeon

Dr Burneikis reported to Dr Moghaddam on 4 May 2020.
Dr Burneikis recorded a history of an injury to the applicant’s back in March 2018, after he lifted boxes of avocadoes onto a pallet. He had since had back pain and sciatic pain, particularly affecting his right leg. In the last six months he had been experiencing significant left hip pain, but had had no new trauma or injury, and no history of previous injury or problems with his hip.
The applicant complained principally of left groin pain, but also of pain in the thigh. It was stiff at times, but he was not aware of crepitus. His walking distance was becoming limited. He had significant pain going downstairs, and difficulty getting out of the car and putting on his shoes or socks.
Dr Burneikis noted that X-rays of the hip from a year before showed at least moderate osteoarthritic change, with quite significant joint space narrowing and early sub chondral cyst formation in the weight bearing dome of the acetabulum. A recent bone scan also showed increased uptake in the left hip joint and [it was] clearly asymmetric from the right.

Dr Burneikis opined that the applicant had a degree of hip osteoarthritis to account for the left hip and groin symptoms. He was likely to need to consider joint replacement at some point. At the age of 50, he should delay it as long as possible. Pending workers compensation approval, it was worthwhile trying CT guided steroid injection. The back pain and sciatica remained his biggest problems, according to his report of his symptoms, although at its peak, the hip had been worse intermittently.
On 12 June 2020, Dr Burneikis responded to a series of questions from EML.
Dr Burneikis was asked, given that moderate osteoarthritic changes to the left hip were noted in 2019, to comment on how the applicant’s current left hip pathology was “linked” to the lumbar spine injury sustained on 1 March 2018. He replied that Mr Smith was referred to him for his left hip issues, approved by workers compensation. In his opinion, the applicant’s hip pathology was not related to his back injury.
Asked whether he considered that the applicant’s employment with the respondent was the main contributing factor to any current left hip symptoms, Dr Burneikis responded that Mr Smith had a degenerative condition of his hip that may be exacerbated by prolonged work on his feet. His hip pathology was not due to a single injury.
Dr Burneikis opined that at some point in the future, without the back injury on 10 March 2018, the applicant’s hip would very likely have become symptomatic, due to pre-existing arthritis but necessarily as a result of age or lifestyle.
Based on his examination of the applicant, Dr Burneikis reported that his back pain was worse than his hip pain and was more of a contributor to his antalgic gait than his hip. Neither the loss of range of motion due to hip arthritis nor the abductor strength loss was sufficient to alter his gait. The applicant advised that he had days when he felt his hip pain might be as bad as or worse than his back pain.
The applicant’s back pain was causing him to walk with an altered posture, in combination with his sciatic pain. He told Dr Burneikis that, as a result, he often resorted to using a walking stick.
Dr Burneikis replied on 18 August 2020 to a fax dated 17 August 2020 from EML. He said he did not provide comment on other medical opinions, had provided his report and further opinion about Mr Smith, and had no further information.

Dr Hasher Kadavil – specialist pain management physician

Dr Kadavil reported to Dr Moghaddam on 30 June 2021.
Dr Kadavil recorded that the applicant had pain in multiple parts of his lower back. He had nociceptive pain in his lower lumbar area. He also had neuropathic symptoms and pain, more in his right lower limb than his left. Increased physical activity worsened the pain. Over time, because of postural changes due to lower back and right lower limb neuropathic pain, he had to put more pressure on his left hip, which had started to hurt.
Dr Kadavil diagnosed chronic back and leg pain with nociceptive pain in the lower lumbar area and left hip and neuropathic bilateral lower limb pain, more severe on the right. The applicant’s hip pain was because of increased pressure on the joint, due to his low back and right lower limb neuropathic pain.

Dr Ali Gürsel – orthopaedic surgeon

Dr Gürsel reported to Dr Moghaddam on 25 June 2021.
Dr Gürsel recorded that the applicant had had problems with his left hip since a work injury to his back in March 2018. He had significant back issues, with documented disc pathology, requiring modification of his work, physiotherapy and injections.
For the past two years, the applicant had had increasing left groin pain. His gait had been altered since the March injury, during which period he had exacerbated his left hip symptoms.
On examination, the applicant had a high body mass index, walked with a limp, was Trendelenburg positive, and had asymmetrical range of motion of his hips, with reproduction of pain with flexion and rotation, which was markedly limited. His X-rays showed advanced left hip arthritis.
Dr Gürsel opined that the applicant was in a difficult position. He had advanced arthritis affecting his quality of life, which had not been helped with an intra-articular injection. He required a total hip replacement. The need for the knee [sic] replacement had been brought on by his back injury and his altered gait disturbance overloading his hip. To give him the best chance of being able to return to full capacity duties, the insurer needed to consider approving his hip replacement, to expedite his care and minimise his ongoing and potentially complicating issues. Having a stiff hip made his spine worse, of which he was aware.
Dr Gürsel reported to the applicant’s solicitors on 7 September 2021.
Dr Gürsel had recorded a history that the applicant had no problems with his left hip until March 2018. There was a significant episode when he felt severe searing pain from his lower lumbar region, radiating down his right leg. The working diagnosis was related to disc pathology, which was managed by Dr Coughlan.
Since the injury, the applicant reported significant alteration of his function, with increasing pain, stiffness and a noticeable limp for many months. He had increasing left groin pain because of altered biomechanics, despite physiotherapy, injections, activity modification and changing his occupation. He had increasing problems with various activities, all related to his left hip symptoms. They were increasing, while his lower lumbar and radiculopathy symptoms remained constant.
Dr Gürsel’s clinical examination was consistent with the history and investigations, showing the applicant had developed advanced arthritis of his left hip. Having exhausted non-surgical management, he was at a stage where his only option would be total hip arthroplasty. The benefits would include, secondarily, taking some pressure off his lumbar spine pathology, which was ongoing and not totally resolved.
Dr Gürsel opined that left total hip replacement was “very necessary”. The applicant had no left hip symptoms before the work injury and the subsequent alteration of the spinopelvic biomechanics over a three year period before this consultation.
Dr Gürsel agreed with Dr Gehr that it was likely the applicant may have required a total hip replacement in the future, but it had been brought forward by the injury to his back. It is likely that he may have required the surgery in 5 to 10 years, having had no left hip symptoms before the incident.
Dr Gürsel disagreed with Dr Burneikis’s assessment, having “previously outlined” that the applicant’s back and nerve injury had accelerated and precipitated his left hip problems.
Acknowledging that he had seen the applicant only once, Dr Gürsel opined that he was at the stage where he required assistance to improve his pain profile, function, and quality of life. The most predictable way to achieve this was total hip arthroplasty. The secondary benefit was that it was likely to take some pressure off his lumbar spine pathology.

Dr E Gehr – orthopaedic surgeon

Dr Gehr reported to the applicant’s solicitors on 16 August 2021. He had examined the applicant via WhatsApp, due to the Covid pandemic.
Dr Gehr referred to the medical evidence provided to him, including Dr Bentivoglio’s reports. I have not had regard to his comments about those reports, given that they have not been admitted into evidence. Dr Gehr also had available the applicant’s investigations. He noted that before 1 March 2018, the applicant reported no problems with his cervical spine, thoracic spine, lumbar spine, upper extremities or lower extremities.
Dr Gehr recorded a consistent history of the injury on 1 March 2018 and the applicant’s subsequent progress and treatment.
The applicant’s symptoms included pain in the lumbar spine, going down both legs to his feet; and pain over the left groin, associated with clicking. The pain in his back and legs and in his left hip averaged 9/10. He could sit or stand for only 30 minutes at a time and walk for only about five minutes. He had stiffness of the lumbar spine and left hip. He felt his condition was definitely deteriorating.
Dr Gehr recorded that the applicant developed pain over the left groin eight or nine months after the injury. He had been found to have advanced osteoarthritis of the left hip, with a recommendation for left hip replacement. He agreed with the diagnosis of the left hip, noting persisting pain and loss of range of motion. The second diagnosis was lumbar spine discogenic injuries at two levels, with right radiculopathy.
Dr Gehr opined that the proposed left hip replacement was reasonable and necessary. The applicant had symptoms and signs consistent with osteoarthritis of the hip and imaging results to support it. He had failed non-operative management and left total hip replacement was clinically indicated.
Dr Gehr also opined that the applicant had exhausted all reasonable conservative treatments in regard to his left hip. He supported the proposed treatment.
Dr Gehr was not of the opinion that the applicant had sustained an aggravation, acceleration, exacerbation or deterioration of a degenerative disease in his left hip, so the issue of main contributing factor was not applicable.
In Dr Gehr’s opinion, the applicant had sustained a consequential injury [sic] to his left hip as a result of his lumbar spine problem. He reported that the medical literature supports that [in] 20% to 40% of cases an injury to a consequential joint is a result of an injury. For the lumbar spine, that would be either hip. It is because of a combination of altered gait and increased load on the nearby joint. Had it not been for the accident, the applicant may well not have developed a problem with his left hip, regardless of image findings, or he may not have required a left hip replacement for another 5 to 10 years.
Dr Gehr disagreed with Dr Burneikis’s opinion that the applicant’s hip pathology was not related to the injury. He reiterated his opinion that as a result of the accident, the applicant required a left hip replacement.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant submitted that the ultimate issue is whether the pain and restriction in his left hip is consequential on the accepted injury to his back. He relied on the decision in Murphy vAllity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), submitting that the test is whether the injury materially contributed to the condition of his left hip. There is no requirement to find that the injury caused pathology in his hip.
The applicant referred to his own evidence regarding his altered gait, low back pain radiating to his right leg, limping with his weight on his left leg and hip, constant back pain and stiffness, the prioritisation of treatment for his back, and the onset of his left hip condition. He submitted that his GP had identified the connection with his work, although it is not well spelt out.
The applicant submitted that Dr Gürsel had spelt out the connection between the need for surgery and his altered gait. Dr Kadavil also referred to pain in multiple parts of his lower back, postural changes and altered gait.
The applicant referred to the extensive material provided to Dr Gehr and his findings on examination. He has provided an opinion on causation. The applicant referred to that part of his report that appears at paragraph 141 above. He submitted that it is a well-reasoned opinion regarding the causal connection. It “ticks all the boxes” to satisfy the requirements of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. He submitted that Dr Gehr’s opinion regarding the acceleration of the need for surgery is important when the opinion of Dr Burneikis is considered.
The applicant submitted that there is a consistent history about the issues with his hip, which he does not perceive was challenged. There is clear and reasoned opinion from Drs Gehr, Gürsel and Kadavil.
As regards Dr Burneikis’s report dated 12 June 2020, the applicant submitted that it is not a full report, but he answered specific questions. He has responded that the applicant’s hip pathology is not related to his back injury but has not addressed such questions as his symptoms and lack of movement. It is not helpful. Whether employment is the main contributing factor is not the question. Whether it was a material contributing factor is the question. Dr Burneikis has accepted that the condition of the applicant’s hip may be exacerbated by being on his feet. He asked, therefore, why is it not exacerbated by limping and his extra weight?
The applicant submitted that, by implication, Dr Burneikis probably supports his case. He opined that at some point in the future, his hip would likely have become symptomatic. He did not say that his hip symptoms now are all due to osteoarthritis. The applicant submitted that something must have brought them forward, and the only contender is his altered gait. His antalgic gait is a consequence of his back injury.
The applicant submitted that I would have very little difficulty in accepting that his back injury caused his altered gait, which led to symptoms in his left hip, which led to the need for surgery. It is not necessary that he show there has been an acceleration of the underlying pathology, but the symptoms are enough. Surgery is only undertaken when there is a clinical need, not because scans show pathology. There has been a significant contribution to the need for surgery.
The applicant made submissions about Dr Bentivoglio’s evidence which, in view of my determination as to the admissibility of his reports, it is unnecessary to repeat or consider.
In reply to the respondent, the applicant submitted that Dr Gehr and Dr Gürsel recorded a history of an antalgic gait, and each was fully aware that his hip pain came on later. Even if his antalgic gait was not present for the whole time, it is clear that his hip problems came on in late 2019.
The applicant submitted that Dr Burneikis did not ask questions about causation, or how he had been walking. He did note sciatic pain, which usually results in an altered gait. There was a lack of enquiry about the mechanism of injury. The applicant submitted that I would discount the opinion of Dr Burneikis to the extent that it is contrary to those of Drs Gehr and Gürsel.

Respondent

The respondent submitted that the essential issue is whether there is a causal link between the applicant’s altered gait caused by his undoubted back injury, and the need for hip surgery.
The respondent submitted that Dr Gürsel based his opinion on the applicant having an altered gait since March 2018. Dr Gehr relied on Dr Gürsel’s history but obtained no independent history. His opinion is based on a continuum of symptoms over a period of years. The respondent submitted that it is not quite that simple.
The respondent referred to the history recorded by Dr Burneikis in his report dated 4 May 2020 that the applicant had had significant hip pain for the last six months, that is, from the end of 2019. There was no history of an antalgic gait caused by his back injury, leading to excess pressure on his left hip. Dr Burneikis made no connection between the back pain and the development of left hip pain.
The respondent referred to the GP’s clinical records in 2019 and submitted that it may be inferred that the applicant was limping not from his back, but from his hip. His GP was accounting for the limp from his hip. It was noted on 3 March 2020 that it was unlikely that the pain was coming only from the applicant’s back, but possibly a big component was coming from his hips.
The respondent submitted that neither the applicant’s GP nor Dr Burneikis had a history of his altered gait and neither made a connection. The GP did not disagree with Dr Burneikis, recording on 30 June 2020 that “it’s [the condition of the applicant’s hip] not related to work that much”. The GP recorded on 17 March 2021 that the applicant needed to talk to Dr Burneikis.
The respondent submitted that Dr Gehr and Dr Gürsel have made a connection based on a history that is not borne out by that of Dr Bentivoglio or the GP’s records. At no stage is there a history of excess weight-bearing or the attribution of the applicant’s hip problem to anything but osteoarthritis. Dr Burneikis’s view remained unaltered, and his report is unambiguous that the applicant’s hip pathology is not related to his back injury.
The respondent finally submitted that I must be satisfied that there is a causal connection between the injury to the applicant’s back and the condition of his hip. There is not sufficient evidence to allow this, as it is based on an incorrect history and not borne out by the clinical records.

SUMMARY

Mr Smith claims to have developed a consequential condition of his left hip as a result of an accepted injury to his back.
The applicant claims the cost of left total hip replacement surgery. The respondent does not dispute that the proposed surgery is appropriate treatment for Mr Smith’s condition.
The applicant need not establish that he has sustained injury to his left hip arising out of or in the course of his employment, or that employment was a substantial contributing factor to any injury – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and the cases discussed therein. The issue is one of causation.
I have had regard to the applicant’s evidence regarding the development of a limp and altered gait. He shifted his 110kg weight onto his left leg and left hip. He underwent treatment, with only temporary relief from pain and stiffness in his lower back and right leg.
The applicant’s evidence, which I accept, is that in about the period from September 2019 to January 2020, he noticed the onset of pain and stiffness in his left hip. His lower back was more painful and was the priority for treatment. He had received two injections into his left hip, with only temporary relief. He had never in the past experienced any problems or pain in his left hip. That is borne out by the records of his GP.
The clinical notes of the Wallarah Bay Medical Centre record that the applicant was favouring his left leg while walking. His gait was normal on 11 March 2019, but he walked with caution. The GP recorded on 29 March 2019, however, that he had trouble walking and was limping, prompting a referral to Dr Burneikis.
The applicant’s GP recorded in November 2019 that he was still in pain and limping from the hip. His investigations showed that he had severe osteoarthritis in his left hip. While his claim for an injection into the hip was rejected, the GP recorded on 15 June 2020 that there was a “big possibility” it was related to the work injury. Dr Burneikis had advised it was not related to work “that much”.
The clinical notes record on 17 March 2021 the GP’s opinion that the rapid decline in the condition of the applicant’s hip and the treatment required could be related to the work injury. He felt the applicant needed to talk to Dr Burneikis about it.
The respondent relies mainly on the evidence of Dr Burneikis in maintaining that the applicant has not sustained a consequential condition of his left hip. I do not believe that his evidence establishes that is the case.
Dr Burneikis opined that Mr Smith had a degree of hip osteoarthritis to account for the left hip and groin symptoms. It is not controversial that the applicant has osteoarthritis of his left hip, demonstrated on X-ray and ultrasound.
In response to questions from EML, Dr Burneikis responded that the applicant’s hip pathology was not related to his back injury. However, he has not addressed any possible contribution from the applicant’s altered gait and limping. He recorded that the applicant had an antalgic gait, which he attributed to his back and sciatic pain. He accepted that the applicant’s back and sciatic pain were responsible for his altered posture.

Dr Burneikis was asked whether the applicant’s employment was the main contributing factor to any current left hip symptoms. He responded that the applicant had a degenerative condition of his hip, which may be exacerbated by prolonged work on his feet; and his hip pathology was not due to a single injury. As the applicant submitted, there appears to be no reason why the condition of his hip would not also be exacerbated by limping and his weight.
The question asked of Dr Burneikis does not assist in determining the claim the applicant makes. He does not claim to have sustained an injury to his left hip, but a consequential condition. He does not need to establish that his employment was the main contributing factor to his hip pathology.
Dr Burneikis opined that “at some point in the future”, even without the injury to his back, the applicant’s hip would very likely have become symptomatic. That can only mean that the symptoms have been brought forward. The only apparent reason for this to occur is the applicant’s altered gait and the fact that he had been shifting his weight to his left leg.
Dr Kadavil also recorded a history that the applicant had put pressure on his left hip, which started to hurt. He opined that the applicant’s hip pain was due to him placing increased pressure on the joint, because he had low back and right leg pain.
Dr Gürsel also accepted that the need for the applicant to undergo surgery had been brought forward by his back injury and altered gait, which had overloaded his hip.
Dr Gehr supported the case the applicant seeks to make. He explained that the consequential injury [sic] to Mr Smith’s left hip is due to a combination of altered gait and increased load on the joint. He went so far as to suggest that, but for his injury, the applicant may not have developed a problem with his left hip at all, or he may have required hip replacement in 5 to 10 years’ time.
The fact that the applicant may eventually have come to surgery in any event does not mean that his claim must fail. As was held in Murphy, a condition may have multiple causes. The applicant need only establish that the injury materially contributed to the need for surgery.
The issue here is one of causation. The test of causation that is usually applied is the “common sense” test referred to in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
In this case, there is evidence of the applicant’s altered gait and shifting of his weight onto his left hip, as a result of the injury to his lumbar spine and radiating pain down his right leg. There is no evidence that he complained of symptoms in, or sought treatment of, his left hip before the injury to his back, although he undoubtedly had radiological evidence of osteoarthritis. He has support from his GP, Dr Kadavil, Dr Gürsel and Dr Gehr, who accept that the symptoms in his left hip are due to his altered gait and increased load on his left hip.
For the reasons given above, I do not accept that the evidence of Dr Burneikis is sufficient to disentitle the applicant to an award in his favour. Even he accepts that the applicant’s hip has become symptomatic earlier than may otherwise have been the case.
In my view, a common-sense evaluation of the causal chain, as referred to in Kooragang, leads to the conclusion that the applicant has sustained a consequential condition of his left hip as a result of an injury to his lumbar spine arising out of or in the course of his employment with the respondent, deemed to have occurred on 1 March 2018. I therefore make that determination.
The respondent does not dispute that the proposed medical treatment, that is left total hip replacement surgery, is an appropriate form of treatment. The evidence supports that the surgery is reasonably necessary and appropriate to treat the applicant’s condition. I further determine that the treatment proposed is reasonably necessary medical treatment.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 45

4 February 2022