Sunarya v Hunter Valley Buses
[2024] NSWPIC 66
•15 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sunarya v Hunter Valley Buses [2024] NSWPIC 66 |
| APPLICANT: | Rudy Sunarya |
| RESPONDENT: | Hunter Vallet Buses |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 15 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of surgery in the form of a total right knee replacement as a result of a motor vehicle accident in which the applicant bus driver injured his right knee when his bus was involved in a head on collision with another vehicle; liability for injury to the right knee was conceded by the respondent, which put in issue the type of injury, such as to give rise to the claimed reasonable necessity for the right knee surgery; the respondent submitted that the applicant suffered a bone bruise injury only which should have resolved within a period of months following the accident, and the necessity for surgery was occasioned by a meniscal tear caused by a pre-existing degenerative condition in the knee; the applicant framed his case relying on injury in accordance with section 4(b)(ii) aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing, but asymptomatic, degenerative condition in the knee; the respondent’s medical expert did not address the issue above referred to, but rather focussed on causation of a meniscal tear in the knee, claimed by the respondent to have been caused by the pre-existing condition; that was the reason for the surgery sought by the applicant worker, not the injury suffered in the motor vehicle accident; Held – applicant suffered aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing degenerative condition in the knee, as a result of the motor vehicle accident in which he was involved; finding that the total knee replacement surgery was reasonably necessary as a result of the motor vehicle accident; determination accordingly; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. On 14 December 2022 the applicant sustained injury to his right knee in the form of aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the knee. 2. The applicant’s employment with the respondent was the main contributing factor to such injury. 3. The surgery proposed by Dr Hutabarat in his report dated 12 July 2023, a right total knee replacement, is reasonably necessary as a result of injury on 14 December 2022. 4. The respondent is to pay the applicant’s costs of and incidental to such surgery pursuant to |
STATEMENT OF REASONS
BACKGROUND
Rudy Sunarya (the applicant Mr Sunarya) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of total right knee replacement surgery as a result of injury on 14 December 2022 arising out of or in the course of his employment as a bus driver for Hunter Valley Buses (the respondent).
On 14 December 2022 Mr Sunarya was driving a bus along Main Road Dora Creek towards Morisset at about 50 to 60kmph when a vehicle travelling in the opposite direction drove across the double lines, hit the vehicle in front of the bus, and then drove head on into the bus. Although the applicant was wearing a seat belt, the force of the collision caused the dashboard of the bus to be pushed in which injured the applicant’s knees. Mr Sunarya also suffered injury to his neck and lower back.
The applicant underwent an X-ray to the right knee on 16 December 2022[1] and an MRI scan to the knee on 6 January 2023.[2] He then attended on Dr Hutabarat, orthopaedic surgeon, on 3 February 2023 on referral by his general practitioner, Dr Green.
[1] Application to Resolve a Dispute (ARD) p 20, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] ARD p 22.
Dr Hutabarat arranged for the applicant to undergo an arthroscopy and partial medial meniscectomy on 13 March 2023[3] and then an ultrasound guided corticosteroid injection into the knee on 29 May 2023. Such treatments did not relieve the pain in Mr Sunarya’s knee, he had difficulty walking, and was unable to drive. Dr Hutabarat recommended a total knee replacement and sought approval to this surgery from the respondent’s insurer.
[3] Reply p 2.
On 22 June 2023 Dr Antoun, SIRA Authorized Health Practitioner, supplied to the respondent’s insurer, QBE CTP, a “Medical Matter Opinion” in which he expressed the opinion that Mr Sunarya’s reported pathology in the knee under the Motor Accident Injuries Act 2017 could be considered as a soft tissue injury, with the pathology being confirmed as chronic, degenerative in nature, with no acute or traumatic features, and unrelated to the claimed incident.[4]
[4] Reply p 4.
Liability for the surgery was declined. On 25 August 2023 the respondent’s insurer issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining the request for surgery.
The applicant was independently medically examined by Dr Harrington, orthopaedic surgeon, on 27 September 2023 who reported to the solicitor for the applicant on 29 September 2023.[5] Dr Harrington agreed that Mr Sunarya had exhausted all other treatment options, and that if he was not prepared to put up with his painful knee, he would be a good candidate for a knee replacement with his current pathology and symptoms. He found that the applicant had obviously suffered an aggravation to underlying arthritis in his right knee which was previously asymptomatic, and that such aggravation remained symptomatic “…despite the arthroscopic washout by Dr Hutabarat.”
[5] ARD p 12.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) is the total right knee replacement surgery recommended by Dr Hutabarat in his report dated 12 July 2023 reasonably necessary as a result of injury to the knee on 14 December 2022?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 7 February 2024. Mr Barter of counsel appeared for the applicant briefed by Ms Jackson. The applicant attended. Mr Guest appeared for the respondent. A representative of the respondent and of QBE attended.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) an article headed “Degenerative Meniscal Tears” by Richard Noris, The Knee Resource, and reviewed by Jonas Bloch, Professor, Department of Sports Science and Clinical Biomechanics, University of Southern Denmark.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary, they are as follows.
Applicant
The applicant notes that it is agreed that he suffered an injury to the right knee on
14 December 2022, and it is not in issue that he was asymptomatic prior to the injury. Although the applicant does not specifically refer in his statement that he was asymptomatic prior to the injury, this appears in the recorded histories of the medical specialists who have seen him. There is no evidence to support a contrary position.The medical evidence indicates that Mr Sunarya became symptomatic on
14 December 2022 and has remained as such despite an attempt by Dr Hutabarat to relieve pain by an arthroscopy on 13 March 2023. Neither has conservative treatment thereafter been able to alleviate the symptoms which the applicant has continued to experience until the present time.The applicant relies upon the comprehensive report of Dr Harrington.
Contrary to that report is the report of Dr Antoun, who has not referred to the fact that the degenerative changes in the applicant’s right knee were asymptomatic prior to the date of accident, were rendered symptomatic by the accident, and have remained so ever since.
The applicant submits that Dr Antoun has not considered the law relating to causation as elucidated by the Compensation Court, that is, an injury constituted by an aggravation of a pre-existing condition pursuant to s 4(b)(ii) of the 1987 Act. The applicant submits that the accident in which he was involved is the only factor on which he relies in having the underlying degenerative changes rendered symptomatic, and the need for surgery on the knee. The applicant notes from AV v AW[6] that employment has to be shown to be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying condition. The applicant submits that Dr Antoun has concentrated only on the underlying pathology, which is accepted by the applicant. The need for the total knee replacement is the fact that the underlying pathology has been aggravated, accelerated, exacerbated or deteriorated by the injury.
[6] [2002] NSWWCCPD 9 (AV v AW).
The applicant submits that Dr Hutabarat has been far more precise in his report dated
12 July 2023[7] in that he has attached an arthroscopic photo demonstrating the well circumscribed Grade IV ulcer on the applicant’s medial femoral condyle which is consistent with a dashboard injury, and notes that non-surgical management has failed.[7] ARD p 42.
The applicant submits that the need or a total knee replacement recommended by
Dr Hutabarat is supported by Dr Harrington, and that Dr Antoun has not addressed either the fact that the applicant has exhausted non-surgical management of the knee, and that the need for surgery is the result of the aggravation etc of the underlying condition.
Respondent
The respondent notes that the material handed up at the arbitration hearing, referred to above at [11(c)] and admitted into evidence by consent, suggests that meniscal tears can be caused by two things, that is, either a twisting type event, or they are degenerative. That is what the study essentially says. In order to determine the difference between the two, one looks at the nature of the tear.
The respondent submits that Dr Antoun has looked at all of this material and indicated that the meniscal tear that is shown in the MRI scan of 6 February [sic, January] 2023 is a large horizontal plain tear.
The respondent submits that this is supported by what Dr Harrington says on p 5 of his report dated 29 September 2023 when he says, “I have seen the arthroscopic pictures which confirm bone-on-bone on the medial side and the degenerative tear of the meniscus.”[8]
[8] ARD p 16.
The respondent submits that when one looks at the MRI, the Commission would be comfortable in accepting the evidence of Dr Antoun and Dr Harrington that the pathology identified is the significant medial meniscus tear which is degenerative in nature.
The respondent then submits that the treating specialist, Dr Hutabarat, finds something different. He diagnoses the tear as being a traumatic tear. The respondent submits that the evidence of Dr Harrington is in contrast to the finding of the treating specialist. The respondent submits that the Commission would not accept that the pathology at the meniscus is traumatic, and that this is important because essentially the basis of the arthroscopy was to treat the degenerative tear which pre-existed the incident. The incident was a dashboard injury, a strike on the right knee as a result of this accident.
The respondent submits that if one disregards the evidence of the treating specialist in respect of the pathology, what has caused the pathology, and the need for surgery,
Dr Hutabarat also talks about the other injury arising from the incident, the tibial plateau fracture and bone bruise. This is a typical dash board injury.The respondent submits that the applicant had quite significant osteoarthritic degenerative changes in the knee at the time of the incident, and Dr Hutabarat makes the comment that:
“He has passed the time now where his tibial plateau fracture bone bruise should have settled and I would therefore be hopeful that his residual pain is due to the tear.”
The respondent submits that in respect of the accident it was bruising that occurred, a strike of the knee on the dashboard, and not a twisting. If one puts to one side the evidence of
Dr Hutabarat that the meniscal tear is a traumatic in origin, by February 2023, not that long after the accident, the applicant had recovered from the injury, and the issues in the knee relate to a pre-existing tear.The respondent submits that if one looks at the operation report of 13 March 2023, it calls into question how much reliance that can be put on the report of Dr Hutabarat. The comment in that report is that the findings are post-traumatic osteoarthritis from dashboard type injury. The respondent then, a few months later, tries to “…dress up the pathology in the knee”,[9] when clearly the respondent submits that it is pre-existing significant degenerative osteoarthritis, existing prior to the subject injury.
[9] Transcript (T) p 10.25.
The respondent submit that the total knee replacement is to treat pre-existing pathology that has been brought to light, similar to the situation when one someone obtains some radiological investigation for a bad back, and a separate medical condition requiring treatment is found. The need for surgery relates to the pre-existing condition.
The respondent submits that on a fair reading of the evidence of Dr Hutabarat, the effects of the dashboard injury would have resolved by February 2023.
The respondent notes that Dr Antoun in referring to the report on the MRI scan dated
6 January 2023 prepared by Dr Lyons, and an addendum to that report quoted in Dr Antoun’s report dated 22 June 2023 under “Correspondence by Dr Brett Lyons:”, that
Dr Lyons notes the possibility only of not excluding new meniscal pathology having occurred related to recent injury to a previously injured meniscus.The respondent submits that Dr Harrington has not opined that there is any actual meniscal damage caused by the incident, and refers back to the paper “Degenerative Meniscal Tears” which illustrates that a non-degenerative tear is caused by a twisting type injury.
Applicant in response
The applicant notes that, from the material referred to in [32] above, there is the possibility that there was extra meniscal tear associated with the dashboard injury, but more importantly, there is nothing from the respondent that has addressed the question of the pre-existing condition having been asymptomatic prior to the injury, and then rendered symptomatic from the injury. The applicant submits that it is not necessary to identify any additional pathology. However, there is an additional pathology that has been identified in this particular case, and that is the ulcer on the medial femoral condyle. That appears consistent with the likelihood that the post-traumatic arthritis in the knee is past the time now where the tibial plateau fracture or bone bruise should have settled. The applicant submits that this apparently did not settle. There is therefore actual further pathology identified giving rise to the need for the total knee replacement. This is apparent from the report of
Dr Hutabarat dated 12 July 2023. That appears to be the “driving force behind the need”[10] for the total knee replacement.[10] T p 14.15.
In any event, the applicant submits that having regard to what is said in AV v AW, and Diab v NRMA Insurance Ltd,[11] the Commission would be satisfied that if the underlying condition was rendered symptomatic, that would be sufficient to engage injury as referred to in s 4(b)(ii) of the 1987 Act.
FINDINGS AND REASONS
Medical evidence
[11] [2014] NSWWCCPD 72 (Diab).
MRI right knee
The applicant underwent an MRI scan of his right knee on 6 January 2023 requested by
Dr Green. The report thereon was signed by Dr Lyons. There were no previous scans available for comparison, and the report described a large horizontal plane tear of the medial meniscus involving the body and posterior horn with quite marked disruption of the femoral surface of the anterior body which had avulsed medially. The “COMMENT” at the conclusion of the report is in the following terms:“Quite marked arthropathy in the medial tibiofemoral joint with meniscal avulsion and a large complex meniscal tears. Posterior multiloculated cyst in the lateral compartment possibly para meniscal or capsular. 15 mm zone of full-thickness chondral loss centrally within the patella.”
Dr Antoun in his report dated 22 June 2023 set out Dr Lyons’ report on the MRI scan in full, and noted that he engaged in correspondence with Dr Lyons, asking him to specifically review the images and to advise whether the reported pathology is degenerative pre-existing or correlates to the timed frame. In addendum reporting to Dr Antoun, Dr Lyons said:
“there is quite advanced medial tibiofemoral joint arthropathy which is likely to be related to previous trauma and it is likely that some of the meniscal damage seen is related to previous of chronic trauma however it would not be possible to exclude the possibility of new meniscal pathology having occurred related to recent injury to a previously injured meniscus.”
Dr Antoun
In his report dated 22 June 2023 Dr Antoun expresses the opinion that the mechanism of injury described in the accident of 14 December 2022 is not consistent with the reported meniscal pathology nor should it be considered as a cause. Later in the report he says:
“The reported findings on the MRI scan have confirmed no acute or traumatic features in the right knee only chronic degenerative pathology, that are not related to or directly caused by the claimed event on the 14 December 2022.”
As the applicant points out in submissions, Dr Antoun is here focussing on the cause of the degenerative pathology in the applicant’s right knee. He does not comment upon any aggravation, acceleration, exacerbation or deterioration of the pre-existing, admitted, degenerative condition in the applicant’s right knee.
Dr Hutabarat
Dr Hutabarat initially saw the applicant on 3 February 2023 and reported to Dr Green on that day.[12] He comments on the MRI scan, noting that it demonstrated a bone bruise affecting principally the medial tibial plateau with a macerated looking posterior horn of the left medial meniscus. He says:
“Essentially, Rudy has an injury to his right knee as outlined above with a medial meniscus tear and a medial tibial plateau bone bruise. He is best treated at this point in time with a right knee arthroscopy and partial medial meniscectomy. We will see how he progresses after this.”
[12] ARD p 61.
In his report to the Claims Manager of QBE dated 17 February 2023 Dr Hutabarat says:
“As indicated in my letter dated 03/02/23 the images I have seen are consistent with a dashboard injury to the right knee sustaining a right medial meniscal tear and a right medial tibial plateau fracture and bone bruise.”[13]
[13] ARD p 57.
When asked to comment on alternatives to the surgery proposed by him, Dr Hutabarat says that Mr Sunarya had already tried non-surgical management and had failed that. His meniscus tear remained present and obviously was causing symptoms. Dr Hutabarat went on:
“Prior to the accident he had no pain in his knee. I have explained to that an arthroscopy for the meniscal tear will hopefully relieve him of pain from the meniscal injury. He does have the risk of some post-traumatic arthritis in his knee but he has passed the time now where his tibial plateau fracture/bone bruise should have settled and I would be therefore hopeful that his residual pain is due to the tear.”
The arthroscopy was carried out on 13 March 2023, and the comment in the report thereon is as follows:
“Findings cw post traumatic Osteoarthritis from dashboard type injury. Will need a R TKA.”
Dr Harrington
Dr Harrington comments on the MRI dated 5 [sic, 6] January 2023, noting that it showed a combination of wear and tear in the right knee mainly involving the medial side. He says that the tibiofemoral joint may have been aggravated by the dashboard injury, although not seemingly to be responsible for the current symptoms. Dr Harrington says that the applicant presented with a painful arthritic right knee mainly involving the medial compartment. He says, “It sounds like a substantial aggravation injury when his knees were crushed by the dashboard.”
Discussion
Injury
The respondent submits that the injury suffered by the applicant in the accident of
14 December 2022 when he suffered a “classic dashboard injury” was the tibial plateau fracture/bone bruise, and that injury should have resolved by about February 2023. This is consistent with the opinion of Dr Hutabarat. The respondent further submits that the basis of the arthroscopy was to treat the degenerative tear in the meniscus which pre-existed the accident.It is true that Dr Hutabarat does find that the applicant sustained a right medial meniscus tear, as well as the right medial tibial plateau fracture and bone bruise, in the accident. The respondent says that the applicant was not involved in a twisting action on the day of the accident such as would cause a tear of the meniscus, and that such tear pre-existed the accident. That may well be correct, but it is the aggravation, acceleration, exacerbation or deterioration of the admitted pre-existing degenerative condition in the applicant’s right knee that constitutes the injury. The applicant’s employment must be found to be the main contributing factor to such aggravation etc. Dr Antoun does not address this concept. He says, “The mechanism of the injury is not consistent with the reported meniscal pathology nor should it be considered as a cause.”
When addressing the issue the main contributing factor to the aggravation etc of the pre-existing degenerative condition in the right knee, the applicant submits that there is no cause other than the bus crash on 14 December 2022 that is responsible for the aggravation of the knee condition, and refers to AV v AW.
In AV v AW Deputy President Michael Snell discussed the test of main contributing factor. He said at [66] (omitting reference to authorities):
“I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one ‘substantial contributing factor’. ‘Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.’ (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.”
Applying the “more stringent connection with the employment than the requirement of ‘a substantial contributing factor’”, I accept the applicant’s submission that the bus crash in which the applicant was involved on 14 December 2022 was the main contributing factor to the aggravation etc of the condition in the right knee.
In terms of “aggravation” the correct test is whether the aggravation to which employment was the main contributing factor had some tangible effect on the worker. It is not necessary for there to be actual worsening of the disease itself, but for there to be an increase in the symptoms and restrictions resulting from the disease.
In DP World Sydney Ltd (formerly known as Container Terminals Australia Pty) v Kelly,[14] Deputy President Bill Roche said at [59]:
“On the question of whether Mr Kelly suffered an aggravation of the disease in his cervical spine, it is well established that a disease is aggravated if the condition is made ‘more grave, more grievous or more serious in its effects upon the patient’ (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34;110 CLR 626 at 639). Considering this passage, Burke CCJ observed (at [17]) in Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88:
‘The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.’”
[14] [2011] NSWWCCPD 43.
Although there is no requirement for the applicant to show that there has been a change in the pathology to demonstrate an aggravation etc of the right knee condition, he does point to increased pathology referred to by Dr Hutabarat in his report dated 12 July 2023 in which the doctor refers to an attached arthroscopic photo demonstrating the well circumscribed Grade IV ulcer on the medial femoral condyle which is consistent with a dashboard injury.
As noted in [32] above, Dr Lyons notes the possibility only of not excluding new meniscal pathology having occurred related to recent injury to a previously injured meniscus. My interpretation of this (hearsay) comment of Dr Lyons related by Dr Antoun, is that he does not exclude the possibility of new meniscal pathology occurring as a result of the subject accident.
For the foregoing reasons I find that on 14 December 2022 the applicant sustained injury to his right knee in the form of aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the right knee.
Surgery
Deputy President Roche at [88] in Diab listed matters, according to the criteria of reasonableness, that may be taken into account when considering a claim for the cost of medical expenses pursuant to s 60 of the 1987 Act. They are:
(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.
Both Dr Hutabarat and Dr Harrington find that the surgery recommended by Dr Hutabarat to relieve the pain and symptoms in the applicant’s right knee is reasonably necessary
(Dr Hutabarat) or at least required (Dr Harrington). Mr Sunarya has exhausted alternative conservative treatment. It is not suggested that the surgery is not appropriate, or not accepted by medical experts as being appropriate and likely to be effective. The cost of the treatment is not an issue.I find that the surgery proposed by Dr Hutabarat in his report dated 12 July 2023, a right total knee replacement, is reasonably necessary as a result of injury on 14 December 2022.
SUMMARY
On 14 December 2022 the applicant sustained injury to his right knee in the form of aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the knee.
The applicant’s employment with the respondent was the main contributing factor to such injury.
The surgery proposed by Dr Hutabarat in his report dated 12 July 2023, a right total knee replacement, is reasonably necessary as a result of injury on 14 December 2022.
The respondent is to pay the applicant’s costs of and incidental to such surgery pursuant to
s 60 of the 1987 Act.
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