Swindale v Bingo Industries Limited
[2021] NSWPIC 303
•23 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Swindale v Bingo Industries Limited [2021] NSWPIC 303 |
| APPLICANT: | Jamie Swindale |
| RESPONDENT: | Bingo Industries Limited |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 23 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of left total knee replacement; no dispute as to injury; no dispute that worker had pre-existing osteoarthritis in the knee; no dispute pre-existing condition was aggravated by a fall at work in August 2019; dispute as to whether treatment reasonably necessary as a result of injury; factors to be considered including worker’s age and obesity; Held – finding that treatment is reasonably necessary as a result of the injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his left knee arising out of or in the course of his employment with the respondent on 1 August 2019. 2. The total left knee replacement surgery proposed by Dr Yasser Khatib is reasonably necessary treatment as a result of the applicant’s injury. 3. The respondent to pay the reasonably necessary costs of and associated with the proposed surgery pursuant to section 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Jamie Swindale (the applicant) was employed as a full-time truck driver by Bingo Industries (the respondent). His duties involved delivering and picking up rubbish skip bins. On 1 August 2019, while working at a construction site, he tripped over some rubble and fell on both knees. His left knee took the brunt of the fall. The respondent accepted liability for the injury to Mr Swindale’s knee.
There is no dispute that Mr Swindale had pre-existing osteoarthritis in both knees. There is no dispute that the fall aggravated the pre-existing condition in his left knee.
Mr Swindale claims compensation pursuant to section 60 of the Workers Compensation Act1987 (the 1987 Act) for the cost of a left total knee replacement recommended by orthopaedic surgeon, Dr Yasser Khatib.
By dispute notices issued between 2 March 2020 and 21 April 2021, the respondent declined liability for continuing weekly payments, and for the cost of the proposed surgery on the ground that it is not reasonably necessary as a result of the workplace injury.
By a dispute notice issued on 26 May 2021, the respondent withdrew the dispute about weekly payments, leaving the claim in relation to the proposed surgery in dispute.
ISSUES FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether the total left knee replacement proposed by Dr Khatib is reasonably necessary as a result of the injury sustained by Mr Swindale on 1 August 2019.
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation/arbitration hearing on 30 July 2021. Mr Swindale was represented by Mr Craig Turner of counsel, instructed by Mr Fady Dous. The respondent was represented by Mr Ross Hanrahan of counsel, instructed by Mr Brad Quillan.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attach documents.
Oral evidence
There was no oral evidence. Mr Hanrahan sought leave at the hearing to put two questions to Mr Swindale, both of which Mr Swindale answered through Mr Tanner. No formal cross-examination was sought.
FINDINGS AND REASONS
Mr Swindale’s evidence
Mr Swindale’s evidence is set out in written statements dated 20 March 2020 and 14 October 2020[1]. He states that he had been employed by the respondent as a truck driver on a full-time basis for approximately five years. Up until the injury on 1 August 2019, he generally worked between 50 to 70 hours a week over a six-day period.
[1] ARD pages 1, 3.
Mr Swindale states that he had to enter and exit the truck using steps, and attend to the preparation and disembarkment of approximately 10 bins per day. Up until approximately 2016, the trucks were manual, requiring repetitive use of his legs and knees, and shoulders and hands. He performed his duties without any pain or restriction.
In 2017, Mr Swindale experienced pain in his left knee as a result of a workplace injury. A scan was performed and he recalls being certified unfit for work for a week or so. Other than consulting his doctor, he did not have any treatment, and he continued with his usual duties.
In 2015, Mr Swindale underwent a pre-employment medical fitness examination which confirmed there was no barrier to him undertaking “the inherent requirements” of the job. A further fitness examination in 2018 identified a restriction in relation to running, and climbing difficulties, following the 2017 injury. Mr Swindale states that his duties did not involve running but did involve repetitive embarking and disembarking of the truck and attending to the placement of the skip bins, and he continued his usual duties.
In July 2019, several weeks before the injury at work, Mr Swindale underwent injections to both knees on the recommendation of a friend in an attempt to reduce the “restriction and pain” he was experiencing. They provided only temporary relief.
Mr Swindale states that, up until the injury on 1 August 2019, he was undertaking his duties with no significant restriction. He had not previously required extended time off work or had to undergo surgery, and surgical intervention had not been suggested.
Mr Swindale reported the incident to his supervisor on the day it occurred. He was advised to attend Mount Druitt Medical and Dental Centre where he saw Dr Savrina Zaman who certified him unfit for work and referred him for a scan, and to an exercise physiologist. Dr Zaman also referred him to orthopaedic surgeon, Dr Yassir Khatib, who recommended physiotherapy and, ultimately, a left total knee replacement.
Mr Swindale sought advice from his family general practitioner, Dr Akram Moussad, who explained he had suffered a tear as a consequence of his injury. At this point, he was beginning to experience difficulty mobilising.
Mr Swindale states that he continues to experience difficulties with mobilising and attending to “basic measures in or around the house”. He relies on medication and hopes this will be alleviated by the surgery.
In response to Mr Hanrahan’s questions at the hearing, Mr Swindale said he now weighs 196 kilograms. He confirmed that he is still using crutches; he has used a wheelchair but not for some time.
Dr Khatib’s reports
On 27 August 2019, Dr Khatib reported to Dr Zaman[2], noting that Mr Swindale “had previous aches and pains in the knee” but he was able to perform all duties at work without any significant impairment. He had not been able to return to work since the injury. Dr Khatib noted that Mr Swindale was morbidly obese. He had managed to get his weight down from 225 kilograms to 160 kilograms with a sleeve gastrectomy in 2014.
[2] ARD page 60.
Dr Khatib said he had reviewed an MRI of the left knee which showed:
“changes of advanced joint osteoarthritis particularly affecting the medial joint compartment with full thickness wear of the chondral cover of the medial femoral condyle and medial tibial plateau as well as bony erosion and subchondral cysts”.[3]
[3] ARD page 60.
Dr Khatib said Mr Swindale’s fall had worsened his pre-existing osteoarthritis which was likely due to his excessive weight coupled with a long history of strenuous manual activities. He said the knee was beyond care with arthroscopy, and further management would focus on knee replacement after which Mr Swindale would have a permanent degree of limitation of function. He might have a degree of difficulty with repetitive kneeling and squatting, and with ascending and descending stairs, but Dr Khatib said he expected Mr Swindale would be able to return to truck driving.
Dr Khatib reviewed Mr Swindale on 3 September 2019 and confirmed his opinion[4]. He said arthroscopic surgery would be of no significant benefit and the damage in the knee was beyond what he could remedy with a high tibial osteotomy or a unicompartmental knee replacement.
[4] ARD page 62.
Dr Moussad’s report
On 5 September 2020, Dr Moussad reported[5] that Mr Swindale sustained left knee injury due to tear of the left medial meniscus in the fall at work on 1 August 2019, and exacerbation and aggravation of left knee osteoarthritis. His prognosis was poor due to ongoing left knee pain and he required surgery as a result of his injury. He had been reviewed by two orthopaedic surgeons who recommended surgery (Dr Khatib and Assoc Professor Papantoniou.)
[5] ARD page 52.
Dr Moussad reported that Mr Swindale had bilateral knee osteoarthritis “but was able to work full time despite same previous pain which he managed since 2017”.
Dr Moussad referred to the left knee injury at work around November 2017, and an MRI on 6 December 2017 which showed osteoarthritis changes and joint effusion. He said Mr Swindale was able to return to pre-injury duties after one week and continued in “a very demanding and repetitive work over a long period of time.”[6] He had limited response to two left knee local steroid injections in July 2020[7] which he underwent to increase mobility and continue with the work he was doing.
[6] ARD page 53.
[7] This appears to be a typographical error and should read 2019. It also appears that he had one injection in each knee (see below).
Dr Moussad reported that, following the workplace injury, Mr Swindale had no capacity for employment due to exacerbation and aggravation of the pre-existing condition in his left knee. An MRI in August 2019 showed a degenerative flap tear involving the medial meniscus. His work was the main contributing factor to the aggravation and deterioration of his condition. He had failed conservative treatment. He was unable to put any weight on the left knee and was walking with crutches. He needed surgery to relieve his pain, improve his mobility, and allow him to return to employment.
Dr Moussad said he disagreed with the report of Dr Wallace (see below). He said Mr Swindale was capable of undertaking his duties until the injury at work. His inability to work “arises from the clear work injury requiring the need for surgery”.[8]
[8] ARD page 55.
Associate Professor Papantoniou’s reports
Assoc Professor Peter Papantoniou, orthopaedic surgeon, saw Mr Swindale on 18 March 2020 and reported to Dr Moussad. He noted Mr Swindale’s working hours before the fall and that he was undertaking his normal job and undertaking all of his normal activities without pain or problems.
Assoc Professor Papantoniou said there was “no question” that Mr Swindale had exacerbated pre-existing pathology in both knees and “no question” that he was at work undertaking his normal duties before the injury. He said he had asked Mr Swindale to continue using crutches. He recommended continuing analgesia. He noted that Mr Swindale was “grossly obese” and said he had encouraged him to continue to try to lose weight but “given this is a long-term issue I am not holding out much hope”.[9]
[9] ARD page 47.
On 31 March 2021, Assoc Professor Papantoniou reported to Dr Moussad confirming his opinion. He noted that Mr Swindale had put on 10 kilograms and now weighed around 195 kilograms. The single most restrictive factor in his losing weight was lack of mobility due to the falls and injuries. He said Mr Swindale was best treated with bilateral total knee replacements, performed in two stages, after which he could have a gastric bypass.
Assoc Professor Papantoniou said Mr Swindale “needs to continue mobilising as much as possible and avoid any impact or twisting activities on either knee”.[10] Mr Swindale was very keen to have the replacement so he “can get back to work, increase his mobility, start to lose weight and improve his functional capacity”.[11]
[10] ARD page 47.
[11] ARD page 47.
Dr Wallace’s report
Dr Raymond Wallace, orthopaedic surgeon, saw Mr Swindale for assessment on 21 November 2019 and reported to the insurer on 2 December 2019. He noted Mr Swindale’s pre-injury duties and the circumstances of the injury to his left knee on 1 August 2019. He noted that Mr Swindale was attending physiotherapy twice a week and using Voltaren and Oxynorm.
Dr Wallace noted that Mr Swindale had been suffering from osteoarthritis in both knees since 1993. He noted the episode of left knee pain in 2017 which was treated conservatively, and that Mr Swindale was diagnosed with an anterior cruciate ligament strain and was off work for a week before returning to pre-injury duties. He noted the drop in Mr Swindale’s weight after the sleeve gastrectomy in 2014. He noted Mr Swindale mobilised with the aid of Canadian crutches.
Dr Wallace noted the MRI on 8 August 2019 showed “evidence of significant pre-existing tricompartmental degenerative osteoarthritis at the joint, particularly involving the medial compartment”.[12] He noted the plain films on 28 August 2019. He noted that Mr Swindale “now complains of a constant aching pain at the patellofemoral reconstruction of the left knee” which was “worse with any activity” and was “relieved by mobilising on crutches or using a brace”.[13]
[12] ARD page 30.
[13] Reply page 3.
Dr Wallace diagnosed soft tissue injury to the left knee, now resolved; aggravation of pre-existing significant degenerative tricompartmental osteoarthritis of the left knee; and non-work-related morbid obesity.
As to causation, Dr Wallace said:
“Mr Swindale’s left knee condition is due to his work incident of 1 August 2019 with a significant proportion being due to pre-existing conditions of morbid obesity and degenerative tricompartmental degenerative osteoarthritis at the left knee.”[14]
[14] Reply page 30.
Dr Wallace said the workplace injury “caused minor aggravation of a pre-existing significant degenerative left knee condition”.[15] Mr Swindale’s employment with the respondent was not a substantial contributing factor, or the main contributing factor, to his current left knee condition.
[15] ARD page 30.
As to treatment, Dr Wallace said Mr Swindale did not require operative intervention as a result of any work-related condition. He might require a total knee replacement in the future for treatment of the pre-existing degenerative osteoarthritis which was unrelated to his employment. The proposed surgery was not reasonably necessary for any work-related condition. Mr Swindale would benefit from twice-weekly visits to physiotherapy over the next month in conjunction with a home exercise program and simple analgesic medication.
Dr Wallace said that it was likely that the work-related aggravation would settle within four months of the incident. He observed that Mr Swindale remained unfit to return to his pre-injury duties, that he was currently fit to return to part time light duties up to 15 hours a week subject to certain restrictions, and that it was “too early to estimate when he may be fit to return to work at his pre-injury duties”.[16]
[16] Reply page 6.
Dr Bodel’s reports
Dr James Bodel, orthopaedic surgeon, saw Mr Swindale for assessment on 16 April 2020. He recorded details of Mr Swindale’s duties and the circumstances of the workplace injury. Dr Bodel diagnosed a twisting injury to the left knee and noted that investigations confirmed “a tear of the posterior horn of the medial meniscus and the aggravation, acceleration, exacerbation and deterioration of the previously relatively asymptomatic medial compartment osteoarthritis in the left knee”.[17]
[17] ARD page 38.
Dr Bodel noted that Mr Swindale had injured his knee in his teenage years playing sport but had not required surgery at the time and had continued to play sport. He noted that Mr Swindale had no complaints about his knee when he passed the pre-employment medical examination, and that he passed a further medical in December 2018. He had no significant problems with the knee until 1 August 2019.
Dr Bodel said he agreed with Dr Khatib that Mr Swindale had moderate to severe arthritic change, particularly in the medial compartment of the knee. He agreed with Dr Khatib’s recommendation against an arthroscopy and that a total knee replacement was needed. He noted that Dr Khatib had not made any recommendations against a knee replacement in a person of Mr Swindale’s size and age (noting his weight had reduced from 250 kilograms to 160 kilograms).
Asked whether Mr Swindale was likely to require “operative procedure” in the future, Dr Bodel said “this is a difficult question”.[18] He said he had a number of concerns about the procedure given Mr Swindale’s young age and obesity. He noted that Mr Swindale had dropped more than one third of his body weight but still weighed 160 kilograms, and said he would be “very reluctant” to undertake the surgery in a person of his age and weight.
[18] ARD page 39.
Having said that, Dr Bodel said there were very few other alternatives. Given Mr Swindale’s age and weight, a high tibial osteotomy to unload the medial compartment of the knee might be a more prudent treatment at this time because it could prolong the time before knee replacement became necessary, his only reservation being that he had not seen the films and did not know the degree of medial compartment osteoarthritis.
However, Dr Bodel said, if it really was an aggravation of significant tricompartmental osteoarthritic change, there really was no alternative to knee replacement. It was inevitable that Mr Swindale would need a knee replacement but it was to be hoped that it could be deferred for another 10 years if at all possible. It would also be better if Mr Swindale weighed closer to 100 kilograms than his current 160 kilograms.
In a supplementary report on 28 April 2020, Dr Bodel noted Dr Khatib’s reports. He noted that Dr Khatib had indicated that “a unicompartmental knee replacement is unlikely to work because the pathology involves all three compartments and not just the medial compartment.” Dr Bodel said:
“Quite correctly he has identified that the only interventional treatment that is a viable option in this circumstance is a total knee replacement.”[19]
[19] ARD page 45.
Dr Bodel said if it were at all possible for Mr Swindale to put off having the knee replacement at his age and current weight, he would recommend he try to do that; he would have to continue to manage the injury with analgesic medication. Dr Bodel then said:
“If the pain is beyond that and really only he can determine that, he should proceed with the total knee replacement on the understanding that it will improve function but there is a strong probability that he will need to have this revised at least once, and probably twice, in his lifetime because of the inevitable failure of the implant over time.”[20]
[20] ARD page 45.
Dr Bodel said Mr Swindale was the only person who could make the decision as to whether he should proceed or not at this time. He said he was satisfied that the procedure is reasonably necessary for management of Mr Swindale’s injury.
In a report on 1 March 2021[21], Dr Bodel confirmed his opinion and said he remained of the view that the surgery was reasonably necessary for the management of Mr Swindale’s injury and, in the short to medium term, he would need a knee replacement. He said “hopefully that can be deferred for at least another 7 to 10 years, although it may be difficult”.[22]
[21] ARD page 30.
[22] ARD page 31.
Clinical records: Healius Mount Druitt Medical Centre
Records from Healius Mount Druitt Medical Centre date from 28 November 2002 to 3 April 2020.
The records show that Mr Swindale saw Dr Zaman on the day of the workplace injury. She noted he had osteoarthritis in both knees since the age of 20 and “MRI left knee 2 years back had ACL was strained mildly and was one week off work and fully recovered after that”. He was observed to have “swelling anterior left knee ++”[23]
[23] ARD page 128.
Mr Swindale saw Dr Zaman several times over the next few weeks complaining of left knee pain. On 6 August 2019, the record shows “Prov diagnosis: medical meniscus strain?”[24] and that approval had been sought for an MRI.
[24] ARD page 127.
On 14 August 2019, Dr Zaman noted “MRI scans discussed” and “advised endone for pain relief as in agonising pain attending physio twice a week”[25].
[25] ARD page 126.
On 15 August 2019 the record shows “MRI scan results noted, flap tear of the medial meniscus”[26] and that Mr Swindale was to see an orthopaedic surgeon on 27 August 2019.
[26] ARD page 125.
The records show further consultations over the period September 2019 to March 2020 and Mr Swindale’s complaints of persisting symptoms in the left knee. On 5 September 2019, Dr Zaman noted that he was awaiting approval for surgery and advised “physio and EP until then”[27]. On 16 March 2020, the notes show “Jamie reports symptoms persist, hydro has temporary benefit”[28]
[27] ARD page 123.
[28] ARD page 113.
Clinical records: Active Family Medical Centre
Records from Active Family Medical Centre date from 22 July 2019 to 29 May 2020.
On 27 July 2019, before the workplace injury, Dr Wang recorded that Mr Swindale had a CT guided steroid injection to both knees and “still has mild pain”[29] on 30 July 2019, Dr Moussad had noted a further “left knee local steroid injection (pain, OA, synovitis)”[30]
[29] ARD page 189.
[30] ARD page 190.
On 10 August 2019, Mr Swindale saw Dr Moussad who noted he had knee pain and was awaiting MRI scan results.
On 14 August 2019, Dr Moussad noted that Mr Swindale had left knee pain, mild swelling, and was not able to put weight on it. He noted that Mr Swindale had “seen another GP for workcover”[31].
[31] ARD page 192.
On 21 August 2019, Dr Wang noted the fall at work and that there was a tear in the left medial meniscus, and pain in both knees since the accident. There are notes of further consultations and complaints of pain, sometimes in both knees, throughout September and October 2019.
On 23 October 2019, Dr Moussad noted that left knee pain was not improving and that Mr Swindale had right knee pain from putting more weight on it. He noted “continue physiotherapy” and “hydrotherapy may help as well”[32].
[32] ARD page 199.
On 17 December 2019, Dr Moussad noted that Mr Swindale had left knee pain and swelling, he was using crutches, and he had no capacity for work.
On 9 January 2020, Dr Moussad recorded that Mr Swindale had knee pain, was using crutches and “wishes he can go back to work”[33]. He made a similar note on 24 January 2020 and on 6 February 2020 when he noted “physio & hydrotherapy” and “analgesia”[34].
[33] ARD page 207.
[34] ARD page 209.
On 21 February 2020, Dr Moussad noted there had been no change. On 5 February 2020 Mr Swindale was not able to put weight on the left knee. Dr Moussad noted “depressed mood”, “anxiety symptoms”, “insomnia” and “counselling”[35] and a referral to Assoc Professor Papantoniou. Notes throughout March to April 2020 document continuing pain, sometimes in both knees, and that Mr Swindale was still using crutches.
[35] ARD page 211.
Certificates of capacity
On 30 November 2017, Dr Moussad certified Mr Swindale as having no current capacity for employment for one week by reason of left knee injury on 28 November 2017.[36] On 7 December 2017, Dr Moussad certified him fit for suitable duties to 22 December 2017. This was evidently the earlier workplace injury referred to by Mr Swindale from which Dr Moussad reported he recovered and resumed normal duties.
[36] ARD page 292.
On 5 August 2019, Dr Zaman issued a certificate which, relevantly, diagnosed “left knee injury” at work on 1 August 2019. She certified Mr Swindale fit for suitable duties to 16 August 2019. On 14 August 2019 she noted an MRI showed medial meniscus injury and certified Mr Swindale fit for suitable duties to 5 September 2019. She continued to certify him fit for suitable duties to 23 October 2019.
On 24 October 2019, Dr Moussad certified Mr Swindale as having no current capacity for any employment to 7 November 2019. Certificates in evidence are in the same terms to 21 February 2020. As noted above, the dispute in relation to weekly payments was withdrawn on 26 May 2021.
The applicant’s submissions
Mr Tanner submits that it is common ground that Mr Swindale had pre-existing osteoarthritis in the knee, and common ground that the condition was aggravated by the workplace injury.
Mr Tanner submits that the context to Mr Swindale’s claim is that he had been working full time and performing all of his duties for five years before the injury on 1 August 2019. Whereas previously he was relatively asymptomatic, he has had no capacity for employment since, and he still uses crutches.
Mr Tanner submits that the evidence shows that conservative treatment has failed to alleviate Mr Swindale’s pain. He had tried physiotherapy and hydrotherapy to limited effect, and he had a limited response to injections. On 5 September 2020, Dr Moussad confirmed that he required analgesia “at all time”[37] and he was still suffering from pain and decreased range of movement, and symptoms of depression. He required surgical treatment to relieve his pain, improve his mobility, and allow him to return to employment.
[37] ARD page 53.
Mr Tanner submits that Dr Khatib, the treating doctor, is clear that arthroscopic surgery would be of no benefit to Mr Swindale, and the damage is beyond what could be remedied with a high tibial osteotomy or unicompartmental knee replacement. Dr Bodel agrees and notes that Mr Swindale has had no benefit from physiotherapy, and only some from hydrotherapy.
Mr Tanner submits that both treating specialists, Dr Khatib and Assoc Professor Papantoniou, are confident that the total knee replacement is appropriate treatment. Mr Tanner submits that, given the liability that attaches to that recommendation, they would not make it unless satisfied the treatment is appropriate.
Mr Tanner submits that the proposed treatment should enable Mr Swindale to return to work as a truck driver. The specialists and Dr Moussad believe it will address his pain and improve his ability to return to work. Dr Khatib acknowledges he would still have difficulty with activities involving kneeling and squatting but says pain relief should be much improved and Mr Swindale should be able to return to truck driving three months after the surgery. Assoc Professor Papantoniou noted that Mr Swindale was “very keen” to have the knee replacements and get back to work.
Mr Tanner submits that, although Dr Bodel has reservations about the proposed surgery in a person of Mr Swindale’s age and weight, he noted that Dr Khatib and Assoc Professor Papantoniou were aware of both. Dr Bodel says if possible to put it off for 7 to 10 years, he would recommend doing so but, in the end, only Mr Swindale can determine that.
Mr Tanner submits that Mr Swindale is best placed to consider whether to proceed with the proposed treatment. Dr Bodel acknowledges it may be difficult for him to defer for so long, and Mr Swindale cannot face another seven years of pain. The clinical records show he was having pain from the date of the injury, that he has had no lasting relief from physiotherapy and hydrotherapy and, by December 2019, was using crutches. The notes reveal a history of unremitting pain and inability to work.
With respect to Dr Wallace, Mr Tanner submits that to suggest the injury was a “minor” aggravation is an attempt to downplay its effects. The evidence is that Mr Swindale performed all his pre-injury duties for long hours for five years and has had no capacity for employment since. A total knee replacement was not contemplated before the injury which rendered it symptomatic and led to the need for surgery.
Further, Mr Tanner submits, Dr Wallace says Mr Swindale would benefit from physiotherapy which he has already tried. Given he is now on crutches and still on medication, Dr Wallace’s optimism is misplaced.
In Mr Tanner’s submission, Dr Wallace’s opinion is unreasonable and unreliable. He diagnosed a soft tissue injury “now resolved”. He said the effects of the injury would likely settle within four months but said Mr Swindale continued to suffer the effects when he saw him on 21 November 2019. Dr Wallace does not say the surgery is not appropriate, he does say it might be needed in future. He does not address Mr Swindale’s pain or the opinions of the treating doctors. He does not say that the surgery will not allow him to return to work.
Mr Tanner refers to Murphy v Allity[38] and submits that Mr Swindale must only show that the injury made a material contribution to the need for surgery. He refers to Diab v NRMA Ltd[39]. Mr Tanner submits there is a clear causal chain, and the preponderance of the medical opinion supports the conclusion that the total knee replacement is reasonably necessary as a result of the injury.
[38] [2015] NSWCCPD 49 (Murphy).
[39] [2014] NSWWCCPD 72 (Diab).
The respondent’s submissions
Mr Hanrahan submits that the treating doctors do not guarantee the pain relief that Mr Swindale seeks or that he will be able to return to work. Further, none of the doctors suggests that his pain will improve.
Mr Hanrahan submits that Mr Swindale has complained of serious pain nearly every time he has seen his treating doctors but there is no evidence from a pain management specialist. No one has considered the value of pain management. Mr Swindale acknowledged that hydrotherapy was useful. Mr Hanrahan submits that, in proposing that the respondent pay for the treatment of the total knee replacement, he is putting the cart before the horse.
With reference to the factors outlined in Diab, Mr Hanrahan submits that Dr Bodel advises the proposed treatment is a difficult procedure. Mr Swindale weighed 160 kilograms when he saw Dr Bodel, at which time Dr Bodel said it was preferable that he lose weight. He now weighs, by his evidence at the hearing, 195 kilograms. His weight is an important factor acknowledged by his own doctors, along with his young age, and both are risk factors against the proposed treatment.
Mr Hanrahan submits that the treating surgeons have an interest in performing surgery.
Mr Hanrahan agrees that the test is as set out in Murphy, being whether the injury made a material contribution to the need for surgery, but submits it is not clear what the contribution is in this case; it needs to be reflected in some tangible evidence that the injury has made a difference.
Mr Hanrahan submits that the MRI on 12 August 2019 refers to a degenerative tear but does not refer to three distinct compartments in the knee. Mr Swindale has provided no material to determine severe tricompartmental damage to the left knee such that it needs total knee replacement.
Further, Mr Hanrahan submits, absent any opinion about pain management, we are left with Mr Swindale’s subjective experience of pain.
Mr Hanrahan submits that all the doctors take a slightly different history of the fall. The evidence suggests that it was relatively minor, consistent with Dr Wallace’s opinion. Dr Wallace suggests the physical consequences were relatively minor and that Mr Swindale would recover within about four months. Dr Wallace says the main contributing factor to the condition in the knee is severe osteoarthritis.
Having regard to Dr Wallace’s opinion, and to Dr Bodel’s appeal to delay the procedure, Mr Hanrahan submits that it is not reasonably necessary at this time. He submits that Dr Bodel’s opinion is qualified and it is no more than a hope that the surgery will improve Mr Swindale’s condition.
Submissions in reply
In reply, Mr Tanner submits that the question of pain management is not relevant, and there is no evidence about it before the Commission. It was open to the respondent to seek the opinion of a pain management specialist. There is no suggestion that Mr Swindale is malingering. Further, the fact that pain is subjective does not disentitle him to relief.
With respect to the submission that there is no tangible evidence that the injury made a difference, Mr Tanner says there is no real dispute. The evidence is that Mr Swindale performed his job for five years, then had the injury, and has not been able to work since. The injury has not resolved. The preponderance of the medical evidence is that, with the proposed treatment, he will be able to return to work and there is no evidence to the contrary.
Mr Swindale’s weight is a factor to be considered but two treating doctors are aware of his weight and still consider the proposed surgery to be reasonably necessary. Dr Bodel says it is preferable that Mr Swindale wait but acknowledges that is ultimately a question for him.
Is the proposed surgery reasonably necessary as a result of the workplace injury?
Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
There is no dispute that Mr Swindale sustained injury to his left knee arising out of or in the course of his employment with the respondent on 1 August 2019. The question for determination is whether the total knee replacement proposed by Dr Khatib is reasonably necessary as a result of that injury.
Mr Swindale bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[40]; Nguyen v Cosmopolitan Homes[41].
[40] [2008] NSWWCCPD 134.
[41] [2008] NSWCA 246.
What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[42] at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[42] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
Considering the factors relevant to reasonably necessary treatment under section 60 of the 1987 Act, Burke CCJ said in Bartolo v Western Sydney Area Health Service[43]:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[43] (1997) 14 NSWCCR 233 (Bartolo).
The principles were summarised by Deputy President Roche in Diab (at [88-89]) as follows:
“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.
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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.
The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy, Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
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).”
Turning to the evidence in this case, there is no dispute that Mr Swindale had pre-existing osteoarthritis in both knees.
Dr Zaman noted on the day of the workplace injury that Mr Swindale had had osteoarthritis in both knees since the age of 20. Dr Wallace took a history that he had had osteoarthritis in both knees since 1993. The MRI in December 2017 showed severe osteoarthritis change involving the medial compartment with degenerative wear of the medial meniscus. Mr Swindale also had a previous injury, in 2017, to his left knee.
Despite this history, the evidence is that Mr Swindale was able to perform his duties up until the time of the workplace injury. Assoc Professor Papantoniou said he had done so “without pain or problems” but Dr Moussad said he had some pain since 2017 but was able to work full-time; Dr Khatib said he had done so “without significant impairment”, and Dr Bodel noted “no significant problems”.
A pre-employment medical fitness examination in 2015 confirmed there was no barrier to Mr Swindale undertaking “the inherent requirements” of the job. A further fitness examination in 2018 identified a restriction in relation to running, and climbing difficulties, following the 2017 injury. There is no evidence that either restriction affected Mr Swindale’s capacity to carry out his duties which, he states, did not involve running but did involve repetitive “embarking and disembarking” of the truck. He continued to work between 50 to 70 hours a week over a six-day period.
In July 2019, just weeks before the workplace injury, Mr Swindale underwent two injections. The evidence about these is not entirely clear. Mr Swindale states that he underwent injections to both knees, and the reports to Dr Moussad by the doctor who performed the injections show injections to the left and right knees on 11 July 2019 and 16 July 2019 respectively.[44] Dr Moussad reported on 5 September 2020 that Mr Swindale had “left knee local steroid injection twice”[45] on those dates but this appears to be incorrect.
[44] ARD pages 282, 283.
[45] ARD page 58.
In any event, Mr Swindale was evidently experiencing symptoms sufficient to prompt him to have the injections, he says in an attempt to reduce the “restriction and pain” he was experiencing. Dr Moussad described their purpose as “to increase mobility to continue with his work which he was doing”. They provided only temporary relief. However, there is no challenge to Mr Swindale’s evidence that he continued to perform his usual duties without significant restriction, he had not required extended time off work and had not been advised of the need for surgical intervention.
It was against this background that the injury on 1 August 2019 occurred.
There is no dispute that the injury aggravated the pre-existing osteoarthritis in Mr Swindale’s left knee. The evidence shows that, from the date of the injury, he regularly saw Dr Zaman and then Dr Moussad, or doctors at the same practice, complaining of persisting, sometimes severe, pain in the left knee.
For a period immediately following the injury, Dr Zaman certified Mr Swindale fit for suitable duties. From 23 October 2019, Dr Moussad certified him as having no current capacity for employment. The respondent now accepts that the weight of the available medical evidence supports Mr Swindale’s claim that he “remains unfit to work” following the aggravation of his left knee osteoarthritis on 1 August 2019.
Dr Khatib saw Mr Swindale shortly after the workplace injury. On 27 August 2019, he reported to Dr Moussad that he had reviewed an MRI of the left knee, and that the workplace injury had worsened the pre-existing osteoarthritis to the point that Mr Swindale was now walking with crutches. Dr Khatib said the degree of degeneration in his knee was beyond care by way of arthroscopy, and further management would focus on knee replacement surgery. On 3 September 2019, Dr Khatib confirmed in his report to Dr Zaman that the only option for the management of his pain was total knee replacement.
Assoc Professor Papantoniou agreed that the injury to both knees at work exacerbated the underlying osteoarthritis to the point where Mr Swindale was in pain all the time and could no longer walk without the use of crutches. He agreed with Dr Khatib that Mr Swindale was best treated with bilateral total knee replacements. (As the right knee is not part of this claim, it is not necessary to consider it here.)
Dr Bodel agreed that the workplace injury aggravated the previously “relatively asymptomatic” degenerative change in Mr Swindale’s left knee. He agreed that the surgery proposed is reasonably necessary for management of the injury, but he gave more qualified support.
In response to the question whether Mr Swindale was “likely to require operative procedure in the future”, Dr Bodel reported on 16 April 2020 that this was “a difficult question”. He outlined his concerns about a total knee replacement in a man of Mr Swindale’s age and continuing obesity. He thought a high tibial osteotomy to unload the medial compartment of the knee might be a more prudent way to treat the knee at this time.
At the time of his first report, Dr Bodel said he had not seen the films and he did not know the degree of the medial compartment osteoarthritis; if it was well localised to the medial compartment only, a high tibial osteotomy was a reasonable option. However, if the injury really was an aggravation of significant tricompartmental osteoarthritic change, then there really was no alternative to the knee replacement. The main reason for the high tibial osteotomy would be to try to prolong the period of time before the need for a knee replacement, which was inevitable, but which Dr Bodel hoped could be deferred for another 10 years “if possible”.
In his report of 28 April 2020, Dr Bodel referred to Dr Khatib’s report of 3 September 2019. He agreed with Dr Khatib that an arthroscopy was of no value and that the degree of pathology in the knee was beyond a high tibial osteotomy. He noted that Dr Khatib had indicated that a unicompartmental knee replacement was unlikely to work because “the pathology involves all three compartments and not just the medial compartment”. Dr Bodel’s suggestion that a high tibial osteotomy would be reasonable treatment if the degenerative change was unicompartmental therefore fell away.
Mr Hanrahan submits that the MRI on 12 August 2019 refers to a degenerative tear but does not refer to three distinct compartments in the knee. Mr Hanrahan submits that Mr Swindale has provided no material to determine severe tricompartmental damage to the left knee such that it needs total knee replacement.
I do not agree with that submission. Dr Wallace noted that the MRI of the left knee on 8 August 2019 showed evidence of “significant pre-existing tricompartmental degenerative osteoarthritis at the joint particularly involving the medial compartment”. He diagnosed “aggravation of pre-existing significant degenerative tricompartmental osteoarthritis left knee” as a result of the workplace injury. While he disagreed that any need for surgery was as a result of that injury, there seems no dispute among the doctors that Mr Swindale has degenerative tricompartmental damage to the left knee. It was for that reason that Dr Bodel agreed with Dr Khatib that the alternative of high tibial osteotomy is not appropriate.
Dr Wallace reported that Mr Swindale’s left knee condition was due to the work injury on 1 August 2019 “with a significant proportion” being due to pre-existing conditions of morbidity city and the degenerative osteoarthritis of the left knee.
Dr Wallace’s opinion that “a significant proportion” of the left knee condition was due to other factors does not take away from fact that the workplace injury aggravated the condition. As a result of the injury, Mr Swin[46]dale went from being able to carry out full-time duties without significant impairment to lacking any capacity for employment.
[46] 35 NSWLR 452 (Kooragang)
Following Murphy, Mr Swindale does not have to establish that the work injury is the only, or even a substantial, cause of the need for the total knee replacement. He has to establish, applying the commonsense approach in Kooragang Cement Pty Ltd v Bates, that the injury materially contributed to the need for the surgery.
Dr Wallace saw Mr Swindale on 21 November 2019, nearly four months after the injury. He considered that the work incident on 1 August 2019 caused a “minor” aggravation of the pre-existing condition and thought it likely that the aggravation would settle “within four months” of the incident.
Dr Wallace does not explain how he reconciles this observation with the history he took that Mr Swindale “now complains of a constant aching pain” in the left knee which was “worse with any activity” and was relieved by mobilising on crutches or using a brace. He does not explain how he reconciles it with his finding that Mr Swindale remained unfit to return to his pre-injury duties, that he was currently fit for “part time light duties up to 15 hours per week with due consideration” to certain restrictions, and that it was “too early to estimate” when he might be fit to return to pre-injury duties. In my view, this apparent contradiction undermines Dr Wallace’s opinion.
It is not entirely clear from Dr Wallace’s report whether he thought surgical intervention was reasonably necessary treatment at that time. He said Mr Swindale might require “operative intervention in the form of left total knee replacement in the future”. He also said the need for surgical intervention “is related to his pre-existing” condition. In any event, his opinion is clear that any need was not related to the work injury.
Mr Swindale’s general practitioner, two treating specialists and Dr Bodel consider that the total knee replacement is reasonably necessary as a result of the injury.
It is true that Dr Bodel’s opinion is qualified by his concern about Mr Swindale’s young age and morbid obesity. By Mr Swindale’s evidence at the hearing, his weight has increased since he saw Dr Bodel. It is reasonable to infer that Dr Bodel might have even more reservations now on this account. However, he noted that Dr Khatib was aware of Mr Swindale’s weight and age and nevertheless considered the treatment reasonably necessary. Assoc Professor Papantoniou also was aware of both and still considered the treatment reasonably necessary. It is reasonable to infer that they took these factors into account in coming to their opinions.
Dr Wallace noted Mr Swindale weighed 170 kilograms but did not comment on this, or his young age, as factors against surgery.
Despite his reservations, Dr Bodel still concluded that the treatment was reasonably necessary. He thought it preferable to defer the surgery for as long as possible but that, in the end, it would be for Mr Swindale to decide whether he could continue to put up with the pain.
Mr Hanrahan submits that the treating doctors do not guarantee the pain relief that Mr Swindale seeks or that he will be able to return to work. However, for treatment to be reasonably necessary, there is no requirement that it guarantee a certain outcome. Its likely effectiveness is one consideration. Mr Swindale’s treating doctors express confidence that the proposed total knee replacement will enable him to return to work, even if with some restrictions. Dr Wallace does not suggest it will not be effective.
Mr Hanrahan also submits that there is no evidence from a pain management specialist and no one has considered the value of pain management.
It is reasonable to infer that, had Mr Swindale’s doctors thought referral to a pain management specialist would be of significant benefit as opposed to the proposed surgery, one of them would have suggested it. I do not accept the suggestion that their opinions are undermined by their own interests in proposing surgery, any more than I accept Mr Tanner’s submission that weight should attach to their opinions because they would not otherwise expose themselves to liability.
As to alternative forms of treatment, Dr Wallace was of the view that Mr Swindale would benefit from twice weekly visits to physiotherapy in conjunction with a home exercise program and use of simple analgesic medication.
Mr Swindale says conservative treatment has not given him long lasting relief. He acknowledges that hydrotherapy had given him relief but it was temporary. Physiotherapy does not seem to have assisted. Having tried those treatments, and having taken quite heavy pain medication for some time. I do not accept the submission that, in proposing that the respondent pay for the treatment of the total knee replacement, Mr Swindale is putting the cart before the horse.
There were no submissions as to the cost of the proposed treatment, either of itself or in relation to any alternative treatment.
Considering the history of Mr Swindale’s left knee condition before and after the fall on 1 August 2019, and considering all of the evidence and applying the commonsense approach in Kooragang, I am satisfied on the balance of probabilities that the injury materially contributed to the need for the left total knee replacement proposed by Dr Khatib.
I am satisfied that the proposed treatment is reasonably necessary as a result of the injury sustained by Mr Swindale on 1 August 2019.
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