Staples v Campbelltown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Staples v Campbelltown City Council [2023] NSWPIC 423
APPLICANT:	Stewart James Staples
RESPONDENT:	Campbelltown City Council
Member:	Gaius Whiffin
DATE OF DECISION:	21 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for right knee injuries; claim for costs involved in right total knee replacement recommended by Dr Nouh, in accordance with section 60; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to section 4(b)(ii) due to the nature of his employment duties with the respondent; Kelly v Western Institute NSW TAFE Commission, Federal Broom Co Pty Limited v Semlitch, AV v AW, Tizzone v F & K Electrics Pty Limited, Volkswagen Financial Services Australia Pty Limited v Mokohar, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond and, Rural Press Limited v Hancock considered; consideration as to what is the deemed date of any injury found in accordance with section 16; consideration of whether the right total knee replacement recommended by Dr Nouh is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 23 August 2019 and 1 November 2019, as well as any injury found due to the nature of the applicant’s employment duties with the respondent; Murphy v Allity Management Services Pty Limited, Rose v Health Commission (NSW), Diab v NRMA Limited considered; Held – the applicant sustained an injury to his right knee in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with section 4(b)(ii) due to the nature of his employment duties with the respondent; the deemed date of that injury is 14 May 2021 in accordance with section 16 of the Act; the right total knee replacement surgery proposed for the applicant by Dr Nouh is reasonably necessary medical treatment for him, as a result of his injuries on 23 August 2019, 1 November 2019, and 14 May 2021; award in favour of the applicant; the respondent is to pay for the costs of and incidental to the right total knee replacement surgery proposed for the applicant by Dr Nouh pursuant to section 60.
determinations made:	The Commission determines: 1. The applicant sustained an injury to his right knee in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act), due to the nature of his employment duties with the respondent. 2. The deemed date of that injury is 14 May 2021 in accordance with s 16 of the 1987 Act. 3. The total right knee replacement surgery proposed for the applicant by Dr Nouh (as referred to in the doctor’s report at page 63 of the Application to Resolve a Dispute) is reasonably necessary medical treatment for him, as a result of his injuries on 23 August 2019, 1 November 2019, and 14 May 2021. The Commission orders: 4. The respondent is to pay for the costs of and incidental to the total right knee replacement surgery proposed for the applicant by Dr Nouh (as referred to in the doctor’s report at page 63 of the Application to Resolve a Dispute), pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Stewart James Staples (the applicant) is 61-years-old and worked for Campbelltown City Council (the respondent) from 2012 until mid 2021, initially as a labourer and later as a storeperson.
The applicant sustained injuries to his right knee during the course of his employment with the respondent on 23 August 2019 and on 1 November 2019. The respondent has conceded liability for these injuries in that they arose out of or in the course of the applicant’s employment with it (in accordance with s 4 of the Workers Compensation Act 1987 (1987 Act)), and that his employment was a substantial contributing factor to the injuries occurring (in accordance with s 9A of the 1987 Act). The respondent made necessary weekly benefits compensation payments to the applicant and it met his expenses pursuant to s 60 of the 1987 Act regarding the injuries until 12 April 2021.
The applicant in addition alleges that during the course of his employment with the respondent, he performed physically demanding and repetitive duties, which have led to a third injury to his right knee in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act. A claim form dated 7 March 2022 claimed compensation from the respondent with respect to the alleged injury. The respondent disputes the alleged injury.
The applicant has made a claim pursuant to s 60 of the 1987 Act in relation to the costs of and incidental to total right knee replacement surgery proposed for him by Dr Nouh. In this regard, the doctor requested that the respondent approve those costs on 3 February 2021.
Since then, the respondent has issued notices denying liability pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dated 12 April 2021 and 19 June 2023. It also issued a notice on 29 March 2022, which confirmed the 12 April 2021 notice following a review undertaken pursuant to s 287A of the 1998 Act. The effect of the notices is that:
(a)    the respondent disputes liability for the disease injury claimed by the applicant - see paragraph 3 above;
(b)    the respondent disputes that, since at least 12 April 2021, the applicant has been incapacitated as a result of his accepted injuries on 23 August 2019 and 1 November 2019 – he has not had any entitlement to weekly benefits compensation since then, and
(c)    the respondent disputes that, since at least 12 April 2021, the applicant has required any treatment for his accepted injuries on 23 August 2019 and 1 November 2019 – specifically, the respondent disputes that the total right knee replacement surgery proposed for him by Dr Nouh is reasonably necessary treatment for those accepted injuries.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant seeks an order that the respondent pay for the costs of and incidental to the total right knee replacement surgery proposed for him by Dr Nouh, relying upon the injuries which he sustained on 23 August 2019 and 1 November 2019, as well as the disputed disease injury (in relation to which a further dispute has arisen as to what date it would be deemed to have occurred on).

ISSUES FOR DETERMINATION

The parties therefore agree that the issues in dispute are as follows:
(a) did the applicant sustain an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act, due to the nature of his employment duties with the respondent;

(b) if so, what is the deemed date of that injury in accordance with s 16 of the 1987 Act, and
(c) is the total right knee replacement proposed for the applicant by Dr Nouh reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 23 August 2019 and 1 November 2019, as well as (if issue (a) is determined in favour of the applicant) the injury thus found.

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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was listed for conciliation/arbitration before the Commission on 30 June 2023. On that occasion, Mr Ty Hickey of counsel appeared for the applicant, instructed by
Ms Cugalj. The applicant was present. Mr Tony Baker of counsel appeared for the respondent, instructed by Ms Beattie.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The issues to be determined (see paragraph 7 above) were agreed upon by the parties, and no objection to the evidence lodged with the Commission by both parties was taken. Oral submissions were then provided by both parties.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respodent’s Reply (Reply) and attached documents;
(c)    the Application to Admit Late Documents lodged by the respondent and dated
20 June 2023 (respondent’s AALD), and attached documents, and

(d) the Application to Admit Late Documents lodged by the applicant and dated 26 June 2023 (applicant’s AALD), and attached documents.

Oral evidence

No oral evidence was given by the applicant or any other witness at the arbitration hearing.

Applicant’s evidence

The applicant has provided two signed statements.
The first statement was signed on 7 March 2022 and is found at page 1 of the ARD.
The applicant says that he initially worked for the respondent in 2012 through a labour hire company, but then became a permanent employee of the respondent’s on 25 February 2013. Prior to working for the respondent, he had worked for Coles, during which employment he sustained injuries to his left knee. He underwent an arthroscopy in 2005 and a half knee replacement in 2006, following which he had no ongoing symptoms or restrictions. He did not sustain any prior injuries to his right knee before commencing his employment with the respondent.
He initially worked for the respondent as a labourer, performing maintenance on its parks and gardens. He described his duties as “physically demanding and repetitive”. He spent about three quarters of his work days whipper snipping (up to 20km of pathways and fence lines per day) with a heavy whipper snipper. He would otherwise be required to use a blower to clear clippings, as well as to spray weedkiller (carrying a 7kg bottle in his right hand). He says that in 2017, he transferred to a storeperson’s role because performing his labouring duties “everyday left me extremely sore and tired”.
The storeperson’s role involved delivering supplies to various locations run by the respondent. The duties included:
(a)    manually unloading pallets of stock – often onto awkwardly located shelves where lifting above shoulder height would be required;
(b)    loading often heavy supplies onto a delivery van;
(c)    unloading supplies from a delivery van – which often involved pushing a trolley weighing 100kg through doors and gates, into and out of lifts, and along corridors – putting “significant” strain on the applicant’s knees;
(d)    distributing crates of books (weighing 15kg each) among the respondent’s libraries;
(e)    manually operating the doors of the respondent’s compactor system in its storeroom up to 20 times per day – this pushing movement put a lot of strain on the applicant’s knees, and
(f)    lifting and dragging fuel hoses to refuel up to 50 trucks per day.
The applicant says that he began to experience significant pain in his right groin and right hip area around July 2018. He sought medical attention for a suspected hernia, which turned out to be a misdiagnosis. However, as a result of his right hip pain, he lodged a compensation claim with the respondent in October 2019. His opinion was that his right hip pain “was caused from the heavy and manual nature of my work duties over the years including pushing the compactor for many years”.
The applicant then describes his injury on 23 August 2019 when a trolley struck his right knee, also causing it to twist. He saw his general practitioner, had radiological tests, and was referred to a specialist, Dr Nabavi.
He then describes his injury on 1 November 2019 when he slipped and fell heavily on his right knee while pulling a refuelling hose and walking backwards. He says:
“Since the injury on 23 August 2019, I have experienced pain in my right knee. This has intensified with the accident on 1 November 2019”.
He sought the opinion of a second specialist (Dr Nouh) regarding his right knee symptoms, and underwent an arthroscopic procedure on 20 February 2020.
Following the procedure, he says that his symptoms seemed to be resolving until he returned to work on light duties. He then noticed that his right knee pain returned and “the condition of my knee progressively deteriorated over time”. He returned to consult with Dr Nouh, who initially recommended a cortisone injection “which gave me no relief”. Dr Nouh then recommended a total right knee replacement.
He says that his employment with the respondent was terminated “recently” (noting that the statement was signed on 7 March 2022).
In relation to his right knee, he says that his current symptoms include:
(a)    a throbbing pain – which worsens the longer he stands or walks;
(b)    stiffness – which prevents him from squatting, bending, and climbing up and down stairs and ladders;
(c)    swelling – managed with medication, and
(d)    pronounced limping.
He says that he “very much wish to proceed with the right knee surgery recommended by Dr Noah”.
The applicant’s second statement was signed on 10 May 2022 and is found at page 5 of the ARD. The applicant addresses some records in his general practitioner’s clinical notes regarding treatment of his right knee for an injury in 2010, which involved treatment until 2012. He says:
“Given that this injury was over 12 years ago, I do not have any recollection of this injury and, therefore have not mentioned it during this claim. My recollections from 2010 surround my left knee as I underwent surgery”.
The ARD annexes the applicant’s claim form dated 7 March 2022 (at page 24) in relation to his claim (see paragraph 3 above) that the nature of his employment duties with the respondent aggravated, accelerated, exacerbated, or deteriorated a disease injury in his right knee. The claim form refers to the following duties as causative of symptoms in his right knee, as well as in his left knee, right hip, right shoulder, and left shoulder:
“Heavy and repetitive nature and conditions of employment since 2012, including but not limited to use of the large compactus in the stores area, mowing lawns, whipper snipping, spraying weedkiller, loading and unloading pallets of stock, pushing and pulling trolleys loaded with stock”.
In relation to the compactor that the applicant was required to operate (see paragraph 17(e) above), the ARD attaches some photographs of it (at pages 8-9) as well as two internal emails of the respondent’s (at pages 6-7) dated 29 June 2020. The emails refer to a comparison of the force required to operate the compactor both prior to and post works that had recently been carried out upon it. The emails refer to the necessary force “going from 62 kg to 3.56 kg”, and conclude:
“As can be seen from the comparison in the above table, there has been a significant decrease in the manual force required to open and close the compactor bays in the Store. This will significantly reduce the potential likelihood of workers sustaining manual handling related injuries or illness from operating the Store compactor.”
In relation to medical evidence, the applicant relies upon the opinions expressed by a qualified orthopaedic specialist, Dr Bodel. The doctor has provided three reports.
Dr Bodel’s first report is dated 15 January 2020, and found at page 34 of the ARD.
The report contains a history of the applicant’s right knee injuries on 23 August 2019 and 1 November 2019, which the doctor describes as twisting injuries. The doctor does not take a history of any previous right knee symptoms.
On examination, the doctor finds:
(a)    a mild right-sided limp;
(b)    an inability to fully extend the right knee;
(c)    tenderness over the anteromedial aspect of the right knee, and
(d)    restricted range of right knee movement.
The doctor was reviewing the applicant prior to the arthroscopic procedure that the applicant underwent on 20 February 2020. He believes that the need for that procedure arises from the applicant’s work injuries, specifically opining:
"This gentleman has had an injury to the right knee and this initially occurred on 23 August 2019. He has a tear of the posterior horn of the medial meniscus. He had a recurrence of the injury on 01 November 2019 and surgery has been recommended but not yet done…There is a direct causal link between the episode of injury that occurred at work and the injury to the region of the right knee. There has been a tear of the meniscus and there has also been the aggravation, acceleration, exacerbation and deterioration of a disease process being the underlying degenerative change in that knee”.
Importantly, the doctor goes on to accept that a total right knee replacement is inevitable and the applicant “may well” have to consider such a procedure “in the next five to seven years”. He hopes that the planned arthroscopic procedure “can allow for some improvement and delay of the inevitable total knee replacement”, but he also accepts that “an arthroscopy can aggravate the arthritic process and may bring forward the timing of the inevitable total knee replacement”.
Dr Bodel’s next report is dated 11 June 2021 and found at page 40 of the ARD.
The doctor obtains an updated history from the applicant that he underwent the arthroscopic procedure on 20 February 2020, which was initially helpful. He subsequently returned to work with the respondent, but was never cleared to return to “do normal duties”. His right knee had steadily deteriorated to the point that he had been told to consider a knee replacement.
The doctor reviews documentation and agrees with Dr Nouh that a total right knee replacement is reasonably necessary “because of the aggravation, acceleration, exacerbation and deterioration of the arthritic change in the knee”. He notes the arthroscopic procedure report from Dr Nouh confirms significant arthritic change in the knee.
The doctor then provides a detailed analysis of causation (which he describes as complex) in relation to the applicant’s current knee symptoms. The injuries on 23 August 2019 and 1 November 2019 caused meniscal tears in a degenerating meniscus. However, the applicant’s pathology includes post-traumatic osteoarthritis in both knees, and the two injuries “have not caused any specific aggravation, acceleration, exacerbation and deterioration of that disease process but the nature and conditions of work in general has”. The doctor opines:
“That is to say, over the totality of his period of employment with Council from 2013 until the present time, but particularly after moving to the stores work where he was accessing this compactus and driving the truck, has caused aggravation, acceleration, exacerbation and deterioration to all of those injured areas including the right shoulder, the right hip and both knees as a result of the nature and conditions of work in general…I am satisfied that the nature and conditions of work in general, not the specific incidents as described, is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process in all injured areas”.
Despite the above opinion however, the doctor does concede that a role was played by the injuries on 23 August 2019 and 1 November 2019. In discussing Dr Coolican’s opinion, he advises:
“I agree with Dr Coolican that a direct blow is unlikely to aggravate the right knee pathology but the injury also included a twisting element which tore the degenerate meniscus. This gentleman’s knee has been symptomatic ever since that day. I am unable to identify any pathological process therefore that has occurred in this circumstance, which would have allowed the ‘aggravation to have ceased’ [emphasis in original] when the pain persists…There is progressive osteoarthritis which will deteriorate over time. It does deteriorate at a rate of its own but in my view, the nature and conditions is causing the aggravation, acceleration, exacerbation and deterioration of this injury and therefore the need for the treatment”.

The doctor concludes:
“As I have indicated above, the specific events on 23 August 2019 and 01 November 2019 are just a small part of the ‘injury’ [emphasis in original] in this circumstance…In my view, the main contributing factor to the need for the total knee replacement is the nature and conditions of work in general over the totality of his period of employment from 2012 or 2013 until the current time”.
Dr Bodel’s third report is dated 17 November 2022 and found at page 49 of the ARD.
The doctor reviews records sent to him in relation to the applicant from Ingleburn Medical Centre dating back to about 2005. He specifically refers to a right knee x-ray report dated 19 August 2010 which indicated “no patellofemoral or tibiofemoral alignment issues, no joint space narrowing or evidence of osteoarthritis”. He notes reports of intermittent right knee pain from at least 2010, if not from 2006. He also notes that the primary pathology and reports of pain in the records relate to the left knee. In answer to a specific question posed to him by the applicant’s solicitors, he opines:
“This history indicates this claimant does have pre-existing pathology, which he did not volunteer at the time of my assessment. There has been an element, in my view, of aggravation, acceleration, exacerbation and deterioration of that disease process in the region of the right knee caused by the injury at work and the nature of work after that injury…I disagree with Dr Coolican, therefore, that there has been no change in the material nature of that disease process by the nature of his work. In my view, it has clearly accelerated the underlying pathology which had been asymptomatic when he commenced work at that workplace”.
The doctor identifies “doing courier work, getting in and out of cars and trucks, and the walking and squatting has caused the aggravation, acceleration, exacerbation and deterioration to that disease process in the right knee”.
In relation to the proposed total right knee replacement, the doctor opines:
“Dr Coolican quite correctly indicated that there is no absolute indication for the knee replacement at the moment, but when the pain becomes unbearable then it will become necessary”.
The applicant also relies upon a number of reports from his treating specialist, Dr Nouh. Most of these reports are addressed to the applicant’s referring general practitioner or the respondent (at pages 56-64 of the ARD), and they refer to consultations between 21 January 2020 and 16 February 2021. They largely detail the applicant’s treatment progress from the date when the doctor recommended the initial arthroscopic procedure for the applicant to the date when he recommended the total right knee replacement on 9 February 2021. They also refer to attempts to treat the applicant’s right knee symptoms with physiotherapy, medication, and a cortisone injection. A report from the doctor to the respondent dated 16 February 2021 provides the following brief opinion regarding causation:
“Stewart may have had pre-existing degeneration in his knee prior to this injury on 23/08/2019, however, he had no symptoms from it and the workplace injury in August 2019 may have accelerated his symptomatic arthritis in the knee”.
Dr Nouh’s operation report following the applicant’s arthroscopic procedure on 20 February 2020 is found at page 65 of the ARD. The findings were:
“Patchy grade II changes over the trochlear and over the lateral facet of the patella.
Grade III - IV changes over the medial femoral condyle.
Grade I - Il changes over the medial tibial plateau.
A tear of the medial meniscus.
Grade II - III changes laterally.
A partial medial meniscectomy to a stable margin was performed.
Local anaesthetic and Celestone was infiltrated into the knee.
Dressing applied”.
Otherwise, there are two reports from Dr Nouh to the applicant’s solicitors. The first report is dated 5 September 2021 and found at page 31 of the ARD.
The doctor advises that he took a history of the applicant’s injury on 23 August 2019 and further advises that when he saw the applicant on 21 January 2020, he “diagnosed exacerbation of early degeneration in the knee and some mechanical pain caused by a meniscal tear”. When he undertook the arthroscopy on the applicant, he found “significant degeneration in the knee and suggested he may end up needing a knee replacement”. He says that the applicant continued to experience pain and discomfort in his knee, and therefore “the decision was made to consider a knee replacement”.
In relation to causation of the applicant’s knee symptoms, the doctor opines:
“Srewart's [sic] employment is a substantial contributing factor to his injuries suffered as he did not have any symptoms in his knee, despite early arthritis, until he had the injuries at work. The wear and tear in his knee is the result of the nature of his work being very phsyical [sic]. He did describe to me that, at some point during his work, he had to do repetitive pushing of 60 kg compactors over a period of seven years which may have certainly aggravated his symptomatic osteoarthritis. His injuries on 23 Augsut [sic] 2019 did result in a meniscal tear on a background of asymptomatic osteoarthritis and, certainly, these injuries have aggravated and accelerated his pre-existing asymptomatic knee osteoarthritis…I feel Stewart's employment is a contributing factor to the aggravation and acceleration and exacerbation of his osteoarthritis. Being very phsyical [sic] work, that can certainly contribute to his knee deterioration…Stewart's exacerbation of osteoarthritis is due to his injury on 23 August 2019, caused by a direct blow to the knee. Prior to this injury he was functioning quite well and was able to do his work without any symptoms from the knee. I agree that he will eventually need a knee replacement on his right knee to address the osteoarthritis”.
The doctor maintains that total right knee replacement surgery “is a reasonable and necessary treatment expense as a result of his work injuries”. He may have continued to have minimal or no symptoms in his right knee had it not been for the injuries on 23 August 2019 and 1 November 2019. Those injuries have “accelerated his requirement for a knee replacement”.
Dr Nouh’s second report to the applicant’s solicitors is dated 6 June 2023 and found at page 3 of the applicant’s AALD.
The doctor had been sent documentation from the applicant’s solicitors and he confirms that he had reviewed it. The documentation included information regarding right knee complaints made by the applicant in 2010 either to Coles or Ingleburn Medical Centre. The doctor advises:
“I do not think additional history and medical records would alter my opinion that he has got progressively worsening arthritis symptoms in his right knee. Some of this is caused by his very physical job and on the balance of probability, I feel that the heavy nature and conditions of his employment duties with council is the main contributor factor to the aggravation, acceleration, exacerbation or deterioration of Stewart
pre-existing osteoarthritis in his knee”.
In answer to specific questions directed to the doctor by the applicant’s solicitors, he opines:
“At the time of the injury on 23 August 2019, he had no symptoms in his knee, even though he did have some degeneration in the knee joint. His symptoms only became apparent after the injury. He did suffer a direct blow on to the medial aspect of his knee, which could have triggered his arthritis symptoms and caused a medial meniscal tear”.
And:
“Osteoarthritis is very common in the community and is not always work related. However, Stewart has described to me very physical work as a council worker which has also been known to cause aggravation of osteoarthritis symptoms. Without his work I do not feel he would have progressed to develop symptomatic osteoarthritis in his knees at his age and it may have happened at a later age”.
The ARD also contains:
(a)    medical reports from the applicant’s initial treating specialist following his 23 August 2019 injury, Dr Nabavi (at pages 54-55) – the doctor recommends an arthroscopic medial meniscectomy to the applicant on 11 October 2019 to treat a tear of the medial meniscus, noting that the applicant “has had persistent anterior medial knee pain” since 23 August 2019;
(b)    certificates of capacity (at pages 146-185) issued in relation to the applicant between 19 September 2019 and 16 December 2019 (separate certificates are issued specifically in relation to each injury on 23 August 2019 and 1 November 2019, after 6 November 2019) – the certificates refer to various restrictions with regard to lifting, standing, and pushing/pulling, as a result of both injuries, during the periods covered by them;
(c)    referral letters (at pages 71-75) for the applicant to attend specialists (Drs Nabavi and Nouh) – it is relevant to note that in the 26 September 2019 referral to Dr Nabavi, Dr Al-Ani advises in relation to the applicant, “right knee pian [sic] after hit by a trolley while he was at work, no past knee issue”;
(d)    radiological reports (at pages 66, 67, 69, and 70) in relation to the applicant’s right knee covering the period between 4 September 2019 and 18 October 2020 – I have considered these reports and will refer to them further if directed to them in other medical evidence or during the parties’ submissions;
(e)    the applicant’s clinical notes from iMed Plus Ingleburn (at pages 81-84) covering the applicant’s treatment at that practice between 3 September 2019 and 11 December 2019 – I have considered these notes and will refer to them further if directed to them during the parties’ submissions, and
(f)    the applicant’s clinical notes from Ingleburn Medical Centre (at pages 85-145) covering the applicant’s treatment at that practice between 20 October 2005 and 7 May 2021 – the notes include several records of complaints of right knee pain prior to 23 August 2019 – I have considered these notes and will refer to their significance further as directed to them during the parties’ submissions.

Respondent’s evidence

The respondent relies upon two reports from Dr Coolican, the first of which is dated 22 February 2021, and is found on page 12 of the Reply.
The doctor takes a history of the applicant’s injury on 23 August 2019 (including commenting that the applicant “feels he may have twisted his knee to move out of the way”), but does not consider his injury on 1 November 2019. He notes that Dr Nouh performed an arthroscopy upon the applicant’s right knee on 20 February 2020 and refers to that doctor’s correspondence as describing “grade III-IV wear involving the medial femoral condyle”. The doctor does not take any significant history from the applicant regarding the nature of his employment duties with the respondent, except to describe his employment since leaving school as “various roles of a physical nature”. The doctor does note however previous treatment of the applicant’s left knee including a medial unicompartmental arthroplasty and two arthroscopies.
The doctor notes that since the right knee arthroscopy, the applicant had performed “light duties” for the respondent. He was eventually referred back to Dr Nouh who arranged a cortisone injection which did not lead to an improvement in the applicant’s symptoms, and as a result, Dr Nouh has now recommended a total right knee replacement.
The applicant describes to the doctor throbbing pain at the front of his right knee. His knee swells, and he is restricted in his ability to lift. His pain is worse if he walks or stands for more than an hour, and it causes him to limp.
The doctor notes his examination of the applicant’s right knee as follows:
“Examination of the right knee showed full extension and flexed to 140°. There was no effusion and the knee was stable without any valgus or varus pseudolaxity. Both joint lines were tender but there was no joint line pain with McMurray’s test for the medial or the lateral meniscus. There was no pain with varus or valgus loaded motion and the patella was non-irritable”.
The doctor reviews the applicant’s right knee MRI scan from 24 September 2019 and concludes:
“The images show features of early medial compartment wear with some thinning of the articular cartilage and subtle oedema involving the medial femoral condyle. There is a degenerative type horizontal cleavage tear of the medial meniscus and on the axial views some narrowing of the patella articular cartilage with the focal oedema and some lateral trochlear articular cartilage wear. Both cruciates are intact and the lateral compartment is well preserved. There is a small amount of oedema in the soft tissues anterior to the patella and patellar tendon consistent with the described direct blow to the front of the knee. Overall, the appearances are consistent with early medial compartment and patellofemoral wear”.
Other radiology reviewed by the doctor showed “very minor medial compartment wear”.
The doctor diagnoses the applicant with early medial compartment osteoarthritis of the right knee including the medial side of the patella and the medial femoral condyle, together with an incidental degenerative horizontal cleavage tear of the medial meniscus. The doctor opines that the applicant was suffering from osteoarthritis involving his right knee prior to his work injuries, although there “may have been a flare associated with a direct blow to the front of his knee with his work injury”. He had similar osteoarthritis in his left knee that had required surgical treatment in the past, and the right knee osteoarthritis was described in the applicant’s radiology as well as in Dr Nouh’s records. The doctor also advises:
“Mr Staples chief complaint with his right knee is throbbing pain at the front of the knee and anterolaterally aggravated by activity”.
The doctor acknowledges that the right knee osteoarthritis did not affect the applicant’s ability to work prior to 23 August 2019, and the doctor also acknowledges that the injury on that date “caused an aggravation of his pre-existing patellofemoral and medial compartment osteoarthritis and that aggravation continued so that he was advised to undergo an arthroscopic procedure”. The aggravation had however resolved and had not accelerated the osteoarthritis.
The doctor however goes on to opine that the arthroscopic procedure carried out by Dr Nouh was unnecessary, and in relation to the total right knee replacement since suggested by Dr Nouh, Dr Coolican opines:
“Mr Staples requires ongoing non-operative treatment but given the modest changes seen on the imaging studies, it is not appropriate that he would be considered suitable for a total knee replacement…Whilst I agree that Mr Staples will one day require a right total knee replacement, the degree of wear and tear and his symptoms do not merit this surgery at the present time. In addition, the requirement for knee replacement is unrelated to the workplace injury of 23rd August 2019 and is a result of the patient’s tendency to develop osteoarthritis…Mr Staples requires a rehabilitation programme for his right knee which would emphasise strengthening exercises for his quadriceps, the use of a stationary bike and possibly simple analgesia and non-steroidal anti-inflammatory medication”.
The doctor concludes by stating that the applicant’s symptoms will improve if he avoids heavy physical work. The doctor says that considering the osteoarthritic changes in his right knee, the applicant is not fit for duties involving lifting more than 5kg, which would preclude him from his current work as that involves lifting up to 20kg. The doctor also says that “it is more appropriate that he perform sedentary work such as driving but not perform any lifting or carrying”. The doctor emphasises that these restrictions are due to the applicant having osteoarthritis and are not “a result of the work injury”.
The doctor’s second report is dated 2 April 2022 and found at page 99 of the Reply. The report is prepared without a further examination of the applicant and its purpose is to provide information to the respondent, which the doctor notes has been requested as follows:
“You have asked that I review the additional medical and factual information and provide a further opinion on the relationship between Mr Staples' right knee condition and his employment with Campbelltown City Council and in particular whether the nature and conditions of his employment was the main contributing factor to the need for right total knee replacement. You also enquire as to whether Mr Staples' employment accelerated or aggravated the degenerative change on a permanent basis [my emphasis added] bringing forward the need for a right total knee replacement or do I consider this surgery to have been required in any event at this time of Mr Staples' life”.
The doctor reviews the applicant’s statement dated 7 March 2022 but does not consider that it describes “heavy physical work”. The applicant’s increasing inability to tolerate the work is consistent with his gradually evolving osteoarthritis. His request to be transferred to the position of a storeperson in 2017 is evidence that he was “experiencing symptoms of osteoarthritis and hoped to decrease the load on his joints with a change in work practice”. The doctor says that he “was suffering from osteoarthritis at this time without any work injury”.
The doctor then reviews Dr Bodel’s reports and disagrees with that doctor’s opinions as follows:
(a)    the applicant should not have undergone the arthroscopy performed upon him by Dr Nouh;
(b)    the applicant’s symptom relief following the arthroscopy “is much more likely explained by the relative rest after surgery with a recurrence of symptoms when returning to work”;
(c)    the applicant’s horizontal cleavage tear was degenerative rather than traumatic – “consistent with his description of a reduced ability to tolerate standing, walking and carrying loads which is part of the progressive nature of osteoarthritis”;
(d)    there is no evidence of any further tear of the applicant’s right medial meniscus from the injury on 1 November 2019;
(e)    the applicant’s osteoarthritis is “innately constitutional” and has not been aggravated by “the totality of his period of employment” with the respondent, and
(f)    for the applicant to now undergo a total right knee replacement is not appropriate as he has not exhausted non-operative treatment options – Dr Coolican also opines that the radiology that he has reviewed does not suggest such surgery to be currently appropriate.
The doctor concludes:
“In answer to your specific question, I do not agree that Mr Staples' work with Campbelltown City Council has accelerated or aggravated the degenerative change in his right knee on a permanent basis. Mr Staples will require a total knee replacement at some stage in the future but in my opinion the disease process is relatively modest and it is not yet appropriate for total knee replacement. The timing of knee replacement has been unaltered by Mr Staples' work with Campbelltown Council”.
The respondent also relies upon a report from Dr Walker dated 15 August 2022 (at page 92 of the respondent’s AALD). The report is addressed to Ingleburn Medical Centre and follows a referral of the applicant to the doctor as “he now presents with right hip issues”. The doctor had also consulted with the applicant in 2019 and then offered him hip replacement surgery, which he did not undergo.
In the report, the doctor again recommends right hip replacement surgery, but also makes some comments regarding the total right knee replacement surgery recommended by Dr Nouh. The doctor does not believe that knee replacement surgery should be undertaken and explains:
“This gentleman has significant right groin, thigh and knee pain. He had advanced arthritis in 2019 which predates his right knee arthroscopy. I am of the belief and fairly confident that his knee pain relates to his hip arthritis. On top of that he has had weight bearing x-rays today of his knee that show very minor arthritis. Even if his knee pain was coming from the minor degree of knee arthritis he would have been a very poor candidate and would have done poorly from a knee replacement. I have explained this to him today and he should not pursue further knee replacement surgery on the right side in the near future”.

The respondent further relies upon documentation obtained from Coles (at pages 22-98 of the Reply) regarding the applicant’s employment there and the injuries which he sustained during that employment. I have considered this documentation and I will refer to aspects of it in more detail if directed to those aspects during the parties’ submissions. However, I do note the relevance of the following from the documentation:
(a)    there is evidence that the applicant injured his left knee during the course of his employment with Coles on 19 October 2005 and on 27 January 2009 - he underwent three surgical procedures (an arthroscopic chondroplasty and partial medial meniscectomy in 2006, a further arthroscopic chondroplasty and medial meniscectomy in 2009, and a medial compartment hemiarthroplasty in 2011);
(b)    there is evidence that the applicant injured his right knee when he tripped on a mat (Dr Matalani recorded this injury as occurring on 15 March 2010, but Dr Houston (who seems to have been the applicant’s treating general practitioner at the time) stated that the applicant first mentioned the injury to him on 22 July 2010 - the applicant signed a note referring to the injury on 2 September 2010);
(c)    from Dr Houston’s 12 August 2010 note, it does not seem that radiological investigations regarding the right knee injury took place;
(d)    a rehabilitation report commissioned in relation to the applicant’s left knee injuries (incomplete and undated but can be contextually dated in July 2010) referred to the applicant as having a full range of right knee flexion;
(e)    there is no history taken of any right knee symptoms in reports obtained by Coles from Dr Coolican (regarding the applicant’s left knee injuries) dated 17 May 2010 and 9 June 2010 – there is also no history taken of any right knee symptoms in reports from the applicant’s treating specialist regarding his left knee injuries, Dr O’Carrigan;
(f)    even though Dr Matalani took a history of a right knee injury on 15 March 2010, he did not detail any ongoing right knee symptoms in his 18 June 2013 report;
(g)    Dr Smith prepared three reports for Coles in relation to the applicant’s left knee injuries, dated 28 September 2011, 10 October 2012, and 22 July 2013 – the first report noted “some symptoms” in the right knee, the second report did not contain a history of current right knee complaints and found a stable right knee on examination, but the third report recorded that the applicant’s right knee “is becoming more painful now”;
(h)    Dr Smith opined that the applicant had bilateral osteoarthritis of the hips and knees which will continue to deteriorate – he would eventually require total knee replacements on both sides, and would also probably eventually require total hip replacements on both sides;
(i)    in relation to the applicant’s left knee symptoms, Dr Matalani noted the presence of osteoarthritis but opined:
“On the balance of probabilities therefore it is likely that the injury on 19 October 2005 accelerated the development of degenerative changes, which could be reasonably be concluded that they were present prior to the January 2009 injury…The 27 January 2009 injury is likely to have aggravated his symptoms and contributed to some degree to the deterioration of his condition…The necessity for surgery was required due to the increase of his symptoms, which brought forward the need for surgery. The need for surgery (due to advanced degenerative changes) would have occurred eventually, even without the aggravation or acceleration caused by the injury in January 2009…In conclusion his employment has been a substantial contributing factor to the development of his current disabilities”;
(j)    in relation to the applicant’s left knee symptoms, Dr Coolican also referred to the applicant’s work injuries in 2005 and 2009 as aggravating his underlying osteoarthritis – interestingly, the doctor also advised as follows:
“In answer to your question 3, concerning the cause of Mr Staples’ left knee osteoarthritis, I would state that the index injury in October 2005 was followed by an arthroscopy and meniscectomy carried out by Dr Sam Sorrenti. Meniscectomy is well known to produce osteoarthritis and accordingly, loss of meniscal function as a result of the injury of the 19 October 2005 is a factor in Mr Staples developing osteoarthritis. There may well be an inherent tendency for him to develop osteoarthritis and if this is the case, it will become evident in the years ahead should he develop osteoarthritis in other weight-bearing joints or in the areas of the body where primary generalized osteoarthritis is seen, such as the fingers and the base of the first metatarsal. However, it is reasonable to presume that a large amount of Mr Staples’ current problems are a result of the meniscectomy that was necessary treatment of a meniscal tear resulting from the injury of October 2005”, and
(k)    Dr Matalani prepared his report after the applicant had commenced his employment with the respondent – he seems to have obtained a history that at that stage, the employment did not involve heavy lifting and he therefore stated that the applicant was able to continue in that employment – he did however opine that the applicant was not fit for work involving repetitive squatting or kneeling, repetitive stairs or ladder climbing, prolonged walking and prolonged standing, as well as heavy lifting activities.
Finally, the respondent relies upon the applicant’s clinical notes from Ingleburn Medical Centre (at pages 12-91 of the respondent’s AALD) covering the applicant’s treatment at that practice between 20 October 2005 and 26 May 2023 – these notes update the notes of the practice contained in the ARD (see paragraph 54 above) – I have considered these notes and will refer to their significance further as directed to them during the parties’ submissions.

Applicant’s submissions

The applicant’s submissions have been recorded and I will not summarise them in detail.
The applicant confirms that he is only alleging an injury pursuant to s 4(b)(ii) of the 1987 Act as a result of the nature of his employment duties with the respondent. He is arguing that his underlying condition was aggravated by those employment duties. He submits that his relevant deemed date of injury in this regard is the last date when he worked for the respondent, being 9 July 2021.
The applicant refers to the authorities of Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly) and Federal Broom Co Pty Limited v Semlitch [1964] HCA 34 (Semlitch), and submits that for a disease to be aggravated, there needs to be an increase in the symptoms of the underlying condition, not necessarily an increase in the long-term pathology of the disease.
The applicant also refers to AV v AW [2020] NSWWCCPD 9 (AV) as outlining the correct test to apply in determining whether employment is the main contributing factor in a disease aggravation. The applicant submits that when that test is applied in weighing up contributing factors, there are no non-work factors contributing to the aggravation of the applicant’s disease other than the disease itself.
The applicant takes the Commission through his statement evidence and emphasises:
(a)    the heavy nature of his employment duties with the respondent – especially involving the operation of its compactor system;
(b)    in his second statement, he concedes some right knee symptoms between 2010 2012 – it is clear however that he was not troubled by these symptoms on an ongoing basis – it is therefore “entirely understandable” that he initially forgot to mention these symptoms to Drs Bodel and Coolican;
(c)    there is no suggestion that there was any resolution in his right knee symptoms after 23 August 2019 – the aggravation of his underlying condition that occurred as a result of that injury as well as the injury on 1 November 2019 and the injury that occurred as a result of the nature of his employment duties, “continued forwards” – in those circumstances, there is a presumption in favour of the continuance of the work-related aggravation of the condition, in accordance with Tizzone v F & K Electrics Pty Limited [2008] NSWWCCPD 14 (Tizzone) and Volkswagen Financial Services Australia Pty Limited v Mokohar [2016] NSWWCCPD 13 (Mokohar), and
(d)    there is no suggestion that there was any other contributing factor to the aggravation of the applicant’s underlying condition, save for his employment.
The applicant then takes the Commission through the treating records from iMed Plus Ingleburn and Ingleburn Medical Centre subsequent to 3 September 2019 (see paragraph 54 above), as well as Dr Nouh’s treatment reports (see paragraph 45 above). He submits that these records show a continuation of right knee symptoms and no progress with their alleviation. There is contemporaneous reporting of the symptoms, and regular reporting of the difficulties and increasing symptoms that the applicant was having with his ongoing work with the respondent, particularly in relation to the operation of the respondent’s compactor system. This ongoing work continued the aggravation of the symptoms.
The applicant specifically refers to Dr Nouh’s reports dated 21 January 2020 (page 56 of the ARD) and 3 February 2021 (page 62 of the ARD) as recording the applicant’s symptoms on those dates from performing his employment duties with the respondent. He also specifically refers to the following clinical records from Ingleburn Medical Centre regarding his complaints as to how his ongoing employment duties were causing him right knee symptoms – entries on 4 February 2020 (page 101 of the ARD), 6 April 2020 (page 99 of the ARD), 20 April 2020 (page 99 of the ARD), 9 June 2020 (page 96 of the ARD), 29 June 2020 (page 95 of the ARD), 21 July 2020 (page 94 of the ARD), 7 September 2020 (page 92 of the ARD), 1 February 2021 (page 89 of the ARD), and 30 March 2021 (page 87 of the ARD).
Many of these entries refer to the applicant’s increased pain when operating the respondent’s compactor system, and the applicant submits that his increased symptoms while operating this system are also referred to in his statement evidence, and are consistent with the respondent’s emails (see paragraph 28 above) referring to the force required to operate the system, both before and after works that the respondent carried out upon the compactor.
The applicant then refers to Dr Walker’s report (see paragraphs 70-71 above) and submits that it is not clear from the brief report as to the degree to which the doctor has considered the “clinical detail” of the applicant’s right knee condition prior to proffering the opinions in the report. The doctor has not treated the applicant’s knee condition, but instead has treated the applicant’s right hip condition. In contrast, the opinions of Dr Nouh should be accepted in relation to the knee condition as he is “uniquely placed” having performed arthroscopic surgery upon the applicant’s knee.
In relation to Dr Bodel’s evidence, the applicant submits that the doctor obtained a history of the nature of his work duties, the injuries that he sustained on 23 August 2019 and 1 November 2019, his treatment for his right knee condition subsequent to 23 August 2019, and his increasing right knee symptoms since 23 August 2019. The history obtained by the doctor is entirely consistent with the applicant’s statement evidence and the clinical records from his treating doctors. The doctor referred (see paragraph 36 above) to the applicant’s increasing right knee deterioration since his arthroscopic procedure on 20 February 2020. The doctor’s opinion should carry significant weight. The opinion was not affected even after the doctor became aware of the applicant’s previous right knee symptoms around 2010 (see paragraph 42 above).
In dealing with Dr Coolican’s evidence, the applicant submits that the Commission should afford the evidence little weight, and specifically notes:
(a)    the doctor believed (see paragraph 60 above) that the tear found upon the applicant’s 24 September 2019 radiology was degenerative – both Drs Bodel and Nouh do not agree in this regard;
(b)    the doctor conceded that (see paragraphs 62 and 65 above) the applicant’s osteoarthritis would be aggravated by “activity” and recommended that he avoid lifting and carrying work (including the 20kg lifting work that he regularly performed for the respondent);
(c)    the doctor noted (see paragraph 63 above) that the applicant’s osteoarthritis did not interfere with his work ability until 23 August 2019;
(d)    the doctor conceded (see paragraph 63 above) that the applicant’s osteoarthritis was aggravated at least by his 23 August 2019 injury, but failed to explain why the aggravation has resolved in the doctor’s opinion, especially when the applicant’s right knee symptoms have not resolved – the doctor is accused of providing an ipse dixit opinion in this regard, and
(e)    the doctor believed (see paragraph 64 above) that the applicant required non-operative treatment for his right knee symptoms (such as a rehabilitation program and medication) – in circumstances where the applicant has already undergone those treatment modalities.
Finally, the applicant submits that in accordance with Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), he has only to show that his current need for a total right knee replacement is materially contributed to by his work injuries.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not summarise them in detail.
The respondent initially outlines the applicant’s history of right knee symptoms in 2010. It refers specifically to the following entries in the clinical notes from Ingleburn Medical Centre:
(a)    22 July 2010 (page 75 of the respondent’s AALD) – “sore R knee post twist” – specialist referral and medication ordered;
(b)    19 August 2010 (page 74 of the respondent’s AALD) – “R knee gave way, fell to ground…likely to be degenerative ” – radiology referral and medication ordered;
(c)    23 September 2010 (page 73 of the respondent’s AALD) – “injection approved Oct 21 st” – it is not however clear from the notes whether the injection was in relation to the right knee or the left knee, and
(d)    6 January 2011 (page 71 of the respondent’s AALD) – “synvisc” – it is not however clear from the notes whether this injection was in relation to the right knee or the left knee.
The respondent concedes that the applicant’s right knee does not “seem to play a major role” from that date until his injury on 23 August 2019. The respondent does however refer to the clinical notes in that period (especially from 2018) as showing complaints of osteoarthritic pain in other areas of the applicant’s body, including his back and shoulders, as well as especially his right hip from 2018. According to the respondent, these complaints show that there is “pretty clearly something in that background”.
The respondent then deals with some of the contemporaneous reporting of the applicant’s injuries on 23 August 2019 and 1 November 2019. It makes the following points:
(a)    there is no history in the clinical notes of the right knee twisting in either of those injuries;
(b)    there was a gap between the date of the 23 August 2019 injury and its first reporting to a doctor on 3 September 2019 (recorded in the clinical notes from iMed Plus Ingleburn at page 84 of the ARD) – that recording also does not suggest a major injury, as while it refers to ongoing pain and references a radiological referral, it also notes no swelling or bruising and only mild tenderness - range of movement is said to be “ok”;
(c)    the applicant’s attendances at iMed Plus Ingleburn on 3 October 2019 and 10 October 2019 (recorded at pages 82-83 of the ARD) then largely deal with complaints of right hip pain, and
(d)    in relation to the 1 November 2019 injury, there seems to have been some confusion as to the nature of the injury – on 5 November 2019 (see page 50 of the respondent’s AALD), Dr Tran from Ingleburn Medical Centre notes that the applicant “is sore in R lat knee area”, but then on 6 November 2019 (see page 50 of the ARD), the doctor notes “bruise on R lat knee is better and swelling has improved, mild tenderness in R lat knee, says he is getting better each day” – also on 5 November 2019, the doctor refers the applicant to radiology to investigate a possible fibula fracture (see radiological report on page 70 of the ARD) – there is also a physiotherapy request (at page 76 of the ARD) dated 21 December 2019 which refers to “slight bruising tib-fib joint after a fall 2 weeks ago”.
In relation to Dr Bodel’s evidence, the respondent submits:
(a)    the doctor’s history of twisting injuries on 23 August 2019 and 1 November 2019 is not “made out on any of the contemporaneous material” – the doctor also concedes (see paragraph 39 above) that a direct blow to the knee is unlikely to aggravate the applicant’s osteoarthritis;
(b)    the doctor agrees with Dr Coolican in his second report as to – “Dr Coolican is of the view that the hip is worse than the knee and that in part, the knee pain may be referred pain, and I agree with that”;
(c)    the doctor acknowledges (see paragraph 39 above) that the applicant has an osteoarthritic condition that will deteriorate over time at a rate of its own, and should therefore not have placed any weight on the applicant being asymptomatic when he commenced his employment with the respondent (see paragraph 42 above) in determining whether his employment duties with the respondent aggravated the osteoarthritic condition, and
(d)    in the doctor’s third report, he seems to be reducing the period of the applicant’s employment with the respondent that aggravated the applicant’s osteoarthritic condition to the period after the injuries on 23 August 2019 and 1 November 2019 (see paragraph 42 above) – the respondent submits that the applicant’s duties subsequent to 23 August 2019 were lighter duties.
In regard to the duties performed by the applicant subsequent to 23 August 2019, the respondent submits that the applicant’s complaints to Ingleburn Medical Centre (see paragraph 80 above) about him operating the respondent’s compactor system after 29 June 2020 cannot be substantiated as emails of that date (see paragraph 28 above) confirmed that work had recently been performed upon the compactor in order to reduce the force required to operate it. Further, the respondent submits that the notes from Ingleburn Medical Centre substantiate that it was in regular contact with that medical centre in order to ensure that the duties performed by the applicant would not aggravate his condition.
In regard to the duties performed by the applicant while employed by the respondent, it draws the Commission’s attention to the history obtained from him by Dr Matalani (see paragraph 72(k) above) regarding the work not being particularly heavy. The respondent does however acknowledge the 28 May 2012 record from Ingleburn Medical Centre (at page 62 of the respondent’s AALD) where the applicant advises that (in the context of his left knee injuries) he “had to lie to get a job through workforce as he has probs financially”.
The respondent urges the Commission to accept the evidence of Dr Coolican and takes the Commission through his evidence in detail. It emphasises:
(a)    the doctor had background knowledge of the applicant, having examined him on behalf of Coles in 2010;
(b)    when the doctor examined him on behalf of Coles, the doctor was willing to accept that the applicant sustained a meniscal tear to his left knee in a work incident there as the work incident involved a twisting process (see paragraph 72(j) above) – however the history taken by the doctor of a twisting injury on 23 August 2019 (see paragraph 56 above) should be considered to be an “added component” without contemporaneous evidence;
(c)    the doctor’s clear opinion that a simple blow to the right knee would not cause a meniscal tear;
(d)    the doctor’s reliance upon the applicant’s significant smoking history as relevant in the development of his osteoarthritis;
(e)    the doctor’s concession that both the applicant’s injuries on 23 August 2019 and 1 November 2019 would have led to right knee symptoms - but that those symptoms did not aggravate or accelerate the underlying osteoarthritis;
(f)    the doctor’s view (see paragraph 67 above) that the applicant’s employment duties with the respondent were not that heavy – the respondent does however concede that it has led no evidence regarding the nature of those duties;
(g)    the doctor’s disagreement with the opinions of Dr Bodel (see paragraph 68 above), and
(h)    the doctor’s concession (see paragraph 69 above) that the applicant will eventually need a total right knee replacement, but that it is not yet appropriate to perform the procedure – the respondent submits this opinion to be entirely consistent with opinions expressed by both Dr Bodel (see paragraphs 34 and 44 above) and Dr Walker (see paragraph 71 above).

Applicant’s submissions in reply

These submissions have also been recorded and I will not summarise them in detail.
The applicant submits:
(a)    the opinions given by Dr Nour are entirely consistent with the opinions given by Dr Bodel;
(b)    the submission that the applicant’s right knee symptoms come from his right hip condition ignores the evidence that the right knee symptoms only commenced on 23 August 2019, some 12 months after the right hip condition began to be treated;
(c)    there is significance in the applicant’s lack of complaints in relation to his right knee between 2011 and 23 August 2019;
(d)    the applicant was consistent in his description of twisting injuries on 23 August 2019 on 1 November 2019 to the medico-legal specialists that he consulted with – the clinical notes of his treating general practitioner need to be treated with extreme caution in this regard as they were not intended to be “detailed clinical precise legalistic reviews” – the applicant refers to the authorities of Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 (Davis) and Mason v Demasi [2009] NSWCA 227 (Demasi);
(e)    the applicant’s statement evidence provides a detailed description of his employment duties with the respondent that the respondent has not traversed – any inconsistency recorded by Dr Matalani in 2013 should be read in this context, and
(f)    there is no need for the applicant to prove an “absolute indication” of the need for surgery, in order to show that the total right knee replacement is reasonably necessary treatment in accordance with s 60 of the 1987 Act.

FINDINGS AND REASONS

Did the applicant sustain an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act, due to the nature of his employment duties with the respondent

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a)     personal injury arising out of or in the course of employment,
(b)     includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is accepted that the applicant has an osteoarthritic condition in his right knee (see paragraph 75 above). It is therefore for him to establish that his employment duties with the respondent aggravated that condition, and that the employment duties were the main contributing factor to the aggravation in this regard. The employment duties do not have to be the main contributing factor to the contraction or development of the osteoarthritis itself.
The definition of “main contributing factor” is discussed at length by Snell DP in AV, where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I generally accept the evidence given in the applicant’s statements. I do not find the credit of the applicant or the weight to be given to his statement evidence to be affected by his failure to mention in his first statement his right knee symptoms in 2010. I accept his explanation in his second statement (see paragraph 26 above) that he did not recollect those symptoms as his recollections from the time involved his symptoms in his left knee (in relation to which he had been operated upon three times).
In my opinion, the complaints of right knee symptoms in 2010 identified by the respondent from the applicant’s clinical notes at Ingleburn Medical Centre (see paragraph 87 above) are minor considering that only two entries in the notes specifically mention the right knee. The respondent concedes (see paragraph 88 above) that following those entries, there do not seem to be any recorded entries of right knee symptoms until after 23 August 2019.
The documentation obtained from Coles (see paragraph 72 above) refers to a right knee injury in 2010, but Dr Matalani does not record any ongoing symptoms from that injury in his 18 June 2013 report, and there is otherwise no mention of the injury or its treatment in reports from Drs Coolican or O’Carrigan. A full range of right knee flexion is also found in a July 2010 rehabilitation report. Dr Smith does record symptoms in the applicant’s right knee in reports dated 28 September 2011 and 22 July 2013, but that recording seems to be inconsistent with the remainder of the documentation obtained from Coles (as well as the lack of entries in the clinical notes from Ingleburn Medical Centre regarding right knee symptoms after 2010). This all suggests that whatever right knee symptoms the applicant had in 2010 (or indeed at any time prior to 23 August 2019) were insignificant to him.
In those circumstances, I accept the submission of the applicant (see paragraph 78 above) that it is understandable for him not to recollect his right knee symptoms around 2010 as he was not troubled by those symptoms on any ongoing basis.
The applicant’s statement evidence regarding the nature of his employment duties with the respondent (see paragraphs 16 and 17 above) is unchallenged by any evidence led by the respondent. I accept that these employment duties, as described by him and performed by him for over seven years, necessarily placed stress upon his right knee. He describes duties involving lifting and carrying heavy objects, getting into awkward positions, as well as pushing and pulling heavy objects. He especially mentions stresses associated with the operation of the respondent’s compactor system, and his evidence in this regard is corroborated by an email from the respondent (see paragraph 28 above) referring to the force necessary to operate the system as being 62kg before works were performed upon the compactor in June 2020.
The description of the applicant’s employment duties in his claim form (see paragraph 27 above) is entirely consistent with the description of the duties in his statement evidence. He describes the duties as heavy, repetitive, and physically demanding.
There is evidence in Dr Matalani’s 18 June 2013 report (see paragraph 72 above) that the applicant described his duties with the respondent (which he had recently obtained employment with) as not involving heavy lifting. However, not only was this description given very early during the applicant’s employment with the respondent, but it was also given at a time when the applicant was concerned about job security following his left knee injuries (see paragraph 92 above). In this context, I do not find that the description given to Dr Matalani affects my acceptance of the physical and heavy nature of his employment duties, as described by the applicant in his statement evidence.
Having accepted the applicant’s statement evidence, I accept that:
(a)    he does not identify any other significant personal activities that he was involved in that placed stress upon his right knee – and nor does the medical evidence;
(b)    he twisted his right knee in his accident on 23 August 2019 – he confirms as such in his statement evidence (see paragraph 19 above) and he was consistent in this regard in the histories that he provided to Drs Bodel (see paragraph 31 above) and Coolican (see paragraph 56 above) – the respondent complains that the twisting nature of the injury was not otherwise referred to in contemporaneous evidence such as the treating records from Ingleburn Medical Centre and from Dr Nouh, but it is worth noting in this regard that Dr Bodel obtained his history as early as in his first report dated 15 January 2020 (less than five months after 23 August 2019) – I also accept in this context that consistent with Demasi, I need to exercise caution when relying upon clinical records as busy doctors sometimes misunderstand or misrecord histories when their major concern is with treatment, and
(c)    during his return to work following his arthroscopic surgery with Dr Nouh, his right knee pain returned (when it seemed to be resolving prior to his return to work) and deteriorated (see paragraph 22 above) – I also note in this regard that he made many complaints to his treating doctors of these increasing symptoms relating to his work activities (see paragraphs 79-81 above) – the respondent points out that it fixed its compactor system in June 2020 (see paragraph 91 above) but this submission ignores both that there were many other work activities that the applicant complained about to his treating doctors, and that he was still required to operate a compactor system requiring the use of 62kg of force up to June 2020.
In relation to the medical evidence before me, I find that Drs Nouh and Bodel have obtained histories from the applicant consistent with his statement evidence, which I have accepted.
I intend to place significant weight upon the opinions provided by Dr Nouh. He is the applicant’s treating specialist, who has seen him on numerous occasions since 21 January 2020. He also operated upon the applicant when he performed an arthroscopic procedure upon him on 20 February 2020. He is therefore in a unique position to provide reliable evidence.
The respondent did not in any detail refer to his evidence in its submissions.
The doctor provides a comprehensive analysis (which one often does not get from a treating specialist) of the causation of the applicant’s condition. He is clear in his view (see paragraph 49 above) as to the relationship between the aggravation of the applicant’s osteoarthritic condition and both the applicant’s 23 August 2019 injury and the “very physical” nature of his work in general.
The doctor maintains his opinion in this regard (see paragraphs 52-53 above) after he reviews details regarding the applicant’s complaints of right knee symptoms in 2010. He accepts that osteoarthritis is not always work-related, but that physical work (such as that performed by the applicant) is known to cause its aggravation. He accepts that the applicant’s osteoarthritis in his right knee would not have become symptomatic “without his work”, and he states that the nature and conditions of the applicant’s employment duties with the respondent was the “main contributor factor” to the aggravation and acceleration of the applicant’s osteoarthritis in his right knee.
It is important to realise that Dr Nouh expresses these opinions in circumstances where he recorded the extent of the applicant’s right knee osteoarthritis (see paragraph 46 above) at the time when he performed an arthroscopic procedure upon the applicant, and also in circumstances where he found (see paragraph 48 above) “significant degeneration in the knee” during the procedure. He is still however clearly supportive of the nature of the applicant’s employment duties aggravating and accelerating the osteoarthritis.
In my opinion, the opinions provided by Dr Bodel should also carry significant weight. They are consistent with the opinions provided by Dr Nouh. Dr Bodel also had the advantage of examining the applicant on two occasions, the first of which occurred even before the applicant’s first examination with Dr Nouh, giving it a significant degree of contemporaneity.
The doctor initially reviews the applicant prior to his arthroscopic procedure on 20 February 2020. He takes a history of the applicant suffering twisting injuries on 23 August 2019 and 1 November 2019, and finds a right knee meniscal tear as a result. He opines that the proposed arthroscopic procedure is necessary as a result of those injuries.
The doctor then reviews the applicant some 16 months after the arthroscopic procedure. Consistent with the applicant’s statement evidence, the doctor takes a history of improvement following the arthroscopic procedure, but then a deterioration after the applicant’s return to work. The doctor provides a detailed analysis of causation in relation to the applicant’s ongoing right knee symptoms (see paragraph 38 above). He is aware of the physical nature of the applicant’s employment duties with the respondent and specifically mentions truck driving duties and the operating of the respondent’s compactor system, as well as walking and squatting. He is satisfied that the “nature and conditions” of the applicant’s employment is now the main contributing factor to the aggravation of his osteoarthritis, rather than the specific injuries on 23 August 2019 and 1 November 2019 – he describes the specific injuries as “just a small part”.
The doctor maintains his opinions in the face of Dr Coolican’s opinions to the contrary (see paragraph 39 above).
He also maintains his opinions (see paragraph 42 above) after he reviews details regarding the applicant’s complaints of right knee symptoms in 2010.
In relation to the respondent’s complaints (see paragraph 90 above) about Dr Bodel’s opinions, I do not find that they affect the weight to be given to the opinions, especially in circumstances where I have found that the applicant suffered a twisting injury on 23 August 2019, and that his employment duties subsequent to 23 August 2019 were physical enough to lead him to continually complain to Ingleburn Medical Centre about them causing ongoing right knee symptoms.
Dr Bodel agrees with Dr Coolican that the applicant’s osteoarthritic condition will deteriorate over time at a rate of its own, and that the applicant may be getting referred knee pain from his hip, but in my opinion, the doctor’s opinions are clear that notwithstanding, the applicant’s employment duties with the respondent were the main contributing factor to the aggravation, acceleration, and deterioration of the condition, at the time when the doctor examined the applicant.
I find the opinions expressed by Dr Coolican to be less reliable than those expressed by Drs Bodel and Nouh for the following reasons:
(a)    the doctor only examined the applicant once in relation to his right knee symptoms;
(b)    during that examination, the doctor did not take a history of the applicant’s 1 November 2019 injury or indeed any significant history regarding the nature of the applicant’s employment duties with the respondent except that the duties included “various roles of a physical nature” (see paragraph 56 above) – the doctor is later inconsistent in his view regarding the physical nature of the applicant’s work with the respondent, describing the work in his second report (see paragraph 67 above) not to be “heavy physical work”;
(c)    during that examination, the doctor did take a history of a twisting injury on 23 August 2019 (see paragraph 56 above) but then seems to have ignored that history when describing the injury as a “direct blow to the front of his knee” (see paragraph 62 above) – the doctor then opines that such a blow would not cause a meniscal tear requiring an arthroscopic procedure;
(d)    the doctor otherwise seems to accept that (see paragraph 72 above) a meniscectomy (which was performed upon the applicant’s right knee in the arthroscopic procedure on 20 February 2020) is well known to be a factor in developing osteoarthritis – the doctor provided this opinion when he examined the applicant’s left knee on behalf of Coles in 2010, and it can be assumed that the opinion would remain relevant if I was to find (in accordance with the opinions of Drs Nouh and Bodel) that the arthroscopic procedure undergone by the applicant on 20 February 2020 was required because he sustained a meniscal tear as a result of a twisting injury on 23 August 2019;
(e)    the doctor accepts (see paragraph 68 above) that the applicant had a recurrence of right knee symptoms when he returned to work following his arthroscopic procedure, as well as (see paragraph 62 above) that activity in general aggravated the applicant’s knee pain, and additionally (see paragraph 65 above) that the applicant should avoid heavy physical work (precluding him from performing the work that he was then performing (in February 2021) as it involved lifting up to 20kg) because of his osteoarthritic condition – in my opinion the doctor’s views in this regard support the proposition that the work that the applicant performed for the respondent subsequent to his arthroscopic procedure was unsuitable and potentially aggravating – I accept the applicant’s submission at paragraph 84(b) in this regard;
(f)    it may be a matter of semantics, but it is interesting to note that in the doctor’s final conclusion (see paragraph 69 above), he states that the applicant’s work with the respondent did not aggravate or accelerate his right knee osteoarthritis on a permanent basis – in his reports, the doctor does not really deal specifically with the issue as to whether the nature of the work caused temporary aggravations;
(g)    the doctor accepts that the applicant’s injury on 23 August 2019 caused a flare or aggravation of his osteoarthritis (see paragraphs 62-63 above) – he then opines that by the date of his examination of the applicant, the aggravation had ceased – in my view however he fails to provide a full explanation for the resolution of the aggravation, and I accept the applicant’s submission at paragraph 84(d) above in this regard, and
(h)    the doctor places significant emphasis on the applicant’s smoking habit as contributing to the development of his osteoarthritis – while this may be the case, it does not assist me to determine whether the osteoarthritis was aggravated or accelerated by the nature of the applicant’s employment duties with the respondent.
In the circumstances, I therefore prefer the opinions expressed by Drs Nouh and Bodel to the opinions expressed by Dr Coolican. In accordance with those opinions, I find that the nature of the applicant’s employment duties with the respondent led to an aggravation, acceleration, exacerbation, and deterioration of his osteoarthritic right knee condition.
In Semlitch, Windeyer J considered the meaning of the words “aggravation, acceleration, exacerbation, or deterioration”, and stated:
“3. The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious”.
“9. The next question then is, was there in December 1960 ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.

The test is whether an aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond [2006] NSWWCCPD 132 (Raymond).
In Rural Press Limited v Hancock [2009] NSWWCCPD 160 (Hancock), Moore ADP stated:
“The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible affect on the worker. It is not necessary for the particular disease to be made worse (Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132)” [at 67].
“It is clear that symptoms or pain brought on by work activity may constitute a relevant aggravation even though no pathological change in the underlying condition has occurred. (Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369). What is necessary is to decide whether the manifestation of symptoms is sufficient to establish ‘injury’, or, in other words, whether the symptoms were made worse by the work duties described. (Mellor v Australian Postal Corporation [2009] FCA 504)” [at 74].
In Kelly, Roche DP cited Semlitch and stated [at 66]:
“It was not necessary for the doctor to explain any baseline. An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626)”.
Applying these authorities, I find that there is sufficient evidence from the applicant’s statement evidence as well as from the clinical notes from Ingleburn Medical Centre to establish that after the applicant returned to work following his arthroscopic procedure on 20 February 2020, the nature of his employment duties rendered his osteoarthritis “more serious in its effects”, made his symptoms worse, and led to “an increase or intensifying of symptoms”.
I therefore also find that the applicant’s specific employment duties following this return to work (as well as the totality of those employment duties from 2012) led to an aggravation, acceleration, exacerbation, and deterioration of his osteoarthritic right knee condition.
In the circumstances, I further find that the opinion expressed by Dr Coolican (see paragraph 120(e) above) regarding the types of activities that would aggravate the applicant’s arthritis assists me in determining that the arthritis was aggravated by his employment duties with the respondent.
In summary therefore, after reviewing and evaluating the evidence presented in its entirety, I am comfortably satisfied that the applicant aggravated his right knee arthritis condition while performing his normal employment duties with the respondent, and that these duties were the main contributing factor in the aggravation of the arthritis. In weighing up the competing causative factors as referred to in AV, it seems to me that (while there may be a number of contributory factors to the development of the applicant’s arthritis) where we are dealing with an aggravation of the arthritis due specifically to the nature of the applicant's employment duties with the respondent, there is only one causative factor - that being those employment duties. The applicant has suffered other aggravations of his arthritis (including as a result of his injuries on 23 August 2019 and 1 November 2019) but they are separate aggravations, and not factors to be taken into account when considering if there were any other factors involved in the specific aggravation of the arthritis that I have found was caused by his employment duties with the respondent. In my opinion, it is only the specific aggravation in this regard that needs to have employment as its main contributing factor.

What is the deemed date of the injury in accordance with s 16 of the 1987 Act

Section 16 of the 1987 Act provides as follows:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury”.
I have been given little assistance by the respondent in its submissions as to what date I should find to be the deemed date of the applicant’s injury as a result of the aggravation, acceleration, exacerbation or deterioration of his osteoarthritis due to the nature and conditions of his employment duties with the respondent. The applicant submits that the date should be 9 July 2021, being the last date when the applicant worked for the respondent (see paragraph 75 above).
In accordance with the section, the deemed date of injury will be the first date of his incapacity as a result of the relevant aggravation of his osteoarthritis.
It seems to me to be clear that while the applicant experienced periods of incapacity following his arthroscopic procedure relating to his employment duties continuing to aggravate his osteoarthritis, he generally continued to work for the respondent performing those aggravating employment duties until the last date when he worked for it. That date should therefore be considered to be the date of his injury. The nature of his employment duties ceased aggravating his osteoarthritic condition on that date, and his incapacity began.
Even if he was not performing aggravating duties immediately prior to the cessation of his employment with the respondent, the deemed date of injury will still be the last date of his employment, as he cannot have been incapacitated if he was working prior to that date.
However, as to identifying when the applicant last worked for the respondent, his statement evidence only refers (see paragraph 23 above) to him being terminated prior to 7 March 2022. I am not sure of the evidence relied upon by him to allege that he last worked on 9 July 2021.
There is within the clinical notes from Ingleburn Medical Centre (at page 31 of the respondent’s AALD) an entry on 18 May 2021, suggesting that the respondent refused to provide the applicant with duties on the previous Friday (which would have been 14 May 2021). The next entry in those clinical notes on 15 June 2021 (at page 30 of the respondent’s AALD) refers to the applicant as not having been working at all. The next entry in the clinical notes on 12 July 2021 (at page 29 of the respondent’s AALD) refers to the applicant as having been advised by the respondent that it would be terminating his employment the following week.
In the circumstances, it seems to me that the evidence from these clinical notes is the only reliable evidence before me as to when the applicant last worked for the respondent, that being 14 May 2021. Doing the best that I can on the evidence before me therefore, I find the applicant’s deemed date of injury to be 14 May 2021.

Is the total right knee replacement proposed for the applicant by Dr Nouh reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 23 August 2019 and 1 November 2019, as well as the injury that I have just found to have a deemed date of 14 May 2021

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, because 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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment.”
The first question to therefore determine is whether the surgery proposed by Dr Nouh is reasonably necessary treatment for the applicant.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.   Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88.    In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.   With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I have already accepted that Dr Nouh is in the best position to advise regarding the applicant’s condition, considering the period of time during which he has treated the applicant and considering that he performed the arthroscopic procedure upon the applicant on 20 February 2020. He has recommended that the applicant undergo a total right knee replacement since 9 February 2021. He says (see paragraph 48 above) that when he undertook the arthroscopic procedure, he foresaw the applicant eventually needing a total knee replacement, and he also says that the knee replacement is now reasonably necessary due to the applicant’s continued pain and discomfort in his right knee.
Dr Bodel also foresaw (even before the applicant underwent his arthroscopic procedure) that the applicant would eventually need a total right knee replacement (see paragraph 34 above). He suspected that the replacement would be needed within five to seven years of January 2020. By June 2021 however, he agreed with Dr Nouh that the replacement was then reasonably necessary because of the deterioration in the applicant’s right knee condition (see paragraphs 36-37 above). There had been aggravation, acceleration, exacerbation and deterioration of the arthritic change in the knee.
The respondent relies upon Dr Bodel’s comment (see paragraph 44 above) which seems to show an inconsistency in the doctor’s opinions in that the doctor there advises that there is no absolute need for the knee replacement at the moment, only when the applicant’s pain becomes unbearable.
I agree that Dr Bodel’s opinions seem to be inconsistent, but I also note the applicant’s description of his current right knee symptoms (see paragraph 25 above) which in my opinion could be interpreted as “unbearable”. Certainly, the applicant wishes to proceed with the total right knee replacement because of these symptoms (see paragraph 26 above).
Dr Coolican believes (see paragraph 64 above) that the applicant will eventually require a total knee replacement but also believes that the replacement is not merited at the present time and that non-operative treatment options should be exhausted first, including medication and exercising. The applicant points out however (see paragraph 22 above) that a cortisone injection gave him no relief, and Dr Nouh’s reports to the applicant’s referring general practitioner refer (see paragraph 45 above) to his attempts to treat the applicant with non-operative treatment options (including the cortisone injection, as well as physiotherapy and medication) prior to him recommending the total right knee replacement. In the circumstances, I accept the applicant’s submission at paragraph 84(e) above that the applicant has already unsuccessfully attempted non-operative treatment, and that as a result, Dr Nouh considers his proposed surgery to be the most appropriate option for the applicant’s treatment.
In relation to Dr Walker’s opinion (see paragraph 71 above), I do not place significant weight upon the opinion. The doctor is the applicant’s treating specialist in relation to his hip condition, and it is not clear as to the information possessed by the doctor in relation to his right knee condition. Certainly, the doctor is in a significantly disadvantaged position compared to Dr Nouh to comment regarding the right knee condition. Further, the doctor’s opinion stands alone, as even Dr Coolican believes that it is inevitable that the applicant will eventually require a total right knee replacement.
Having considered the whole of the evidence presented, I am satisfied that the applicant has discharged the onus of proving on the balance of probabilities that Dr Nouh’s proposed total right knee replacement surgery is reasonably necessary treatment for his right knee symptoms.
In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Dr Nouh is appropriate treatment for the applicant’s right knee symptoms – this is clearly the opinion of both Drs Nouh and Bodel, and Dr Coolican also believes that it will eventually be appropriate treatment at some time in the future;
(b)    there are currently no other reasonable alternative non-operative treatment options for the applicant – I am satisfied that these options have been previously attempted and considered by Dr Nouh, and I do not accept the evidence of Dr Coolican that they should be attempted again;
(c)    the costs involved with the proposed surgery are reasonable – Dr Nouh’s estimated fee is $6,225 (at page 63 of the ARD), and although this fee does not include hospital and other incidental costs, the total costs certainly cannot be seen to be prohibitive – the respondent made no suggestion in this regard;
(d)    the overwhelming evidence from Drs Nouh and Bodel is that the only effective treatment for the applicant’s right knee symptoms is a total right knee replacement, and
(e)    the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective – in this regard, I again rely upon the opinions of Drs Nouh and Bodel, as well as the opinion of Dr Coolican which in my opinion suggests acceptance of the procedure for the applicant at some time in the future.
It is finally necessary to consider whether there is a material contribution between the injuries to the applicant on 23 August 2019 and 1 November 2019, together with the injury that I have found occurred on 14 May 2021, and the total right knee replacement surgery proposed by Dr Nouh.
In Murphy, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
I have already determined to accept the evidence in the applicant’s statements, and to prefer the opinions proffered by Drs Nouh and Bodel to the opinions proffered by Dr Coolican. I have found that the applicant sustained a twisting injury on 23 August 2019, and (in accepting the evidence from Drs Nouh and Bodel) I find that the arthroscopic procedure performed upon the applicant by Dr Nouh on 20 February 2020 was required as a result of that injury. Required to accept this finding, I believe that Dr Coolican would accept (see paragraph 120(d) above) that the procedure itself played a role in the development of the applicant’s osteoarthritis. In those circumstances, his opinion regarding whether the applicant’s employment injuries materially contributed to the applicant’s need for a total right knee replacement (he believes that the surgery will be needed eventually if not at the current time) might change.
In any case, the opinions of Drs Nouh and Bodel are clear. Dr Nouh has treated the applicant for his right knee condition since 21 January 2020 and performed the arthroscopic procedure upon him on 20 February 2020. He has obtained an accurate history of the injuries sustained by the applicant during his employment with the respondent as well as the nature of the employment duties performed by the applicant in that employment. He is in the best position to provide an opinion regarding whether those injuries and the nature of those duties materially contributed to the need for the total right knee replacement, and he is clear in his opinions in this regard (see paragraphs 50 and 53 above) that the work injuries accelerated the applicant’s requirement for the knee replacement, and that without those injuries the applicant would not have progressed to develop the symptomatic osteoarthritis that he has currently developed.

Dr Bodel (see paragraph 40 above) broadly agrees with Dr Nouh’s opinion in this regard, although he places more emphasis upon the nature of the applicant’s employment duties, rather than the injuries on 23 August 2019 and 1 November 2019, as being the main contributor to the need for the applicant to undergo right total knee replacement surgery.
When the injuries that occurred on 23 August 2019, 1 November 2019, and 14 May 2021 (deemed) are considered together, I am comfortably satisfied that there is sufficient evidence for me to find that the combination of them materially contributed to the need for the applicant’s right total knee replacement surgery. There is in fact no evidence of any other contributing factors to the need for the surgery, other than the underlying osteoarthritis, which both Drs Nouh and Bodel agree has been aggravated, accelerated, exacerbated or deteriorated by employment injuries. Dr Coolican mentions the applicant’s smoking habit as being relevant in the development of this osteoarthritis but there is no suggestion that that habit played any material contribution to the aggravation, acceleration, exacerbation or deterioration of the condition between 23 August 2019 and 14 May 2021 which has led to the applicant’s current need for total right knee replacement surgery.

SUMMARY

I therefore find that the applicant sustained an injury to his right knee in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act, due to the nature of his employment duties with the respondent.
I find the deemed date of that injury to be 14 May 2021.
I also find that the total right knee replacement surgery proposed for the applicant by Dr Nouh is reasonably necessary medical treatment for him, as a result of his injuries on 23 August 2019, 1 November 2019, and 14 May 2021.
There will be an award that the respondent pay for the costs of and incidental to that surgery, as referred to by Dr Nouh in his 9 February 2021 report (page 63 of the ARD) pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 423

21 August 2023