Tadrus v Robert Menzies College - [2021] NSWPIC 71

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tadrus v Robert Menzies College [2021] NSWPIC 71
APPLICANT:	Manal Tadrus
RESPONDENT:	Robert Menzies College
PRINCIPAL MEMBER:	Ms Josephine Bamber
DATE OF DECISION:	9 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim under section 60 of the 1987 Act for proposed right knee replacement and associated treatment costs and claim for proposed podiatry services; respondent accepted work related right knee injury and had paid for two prior arthroscopic procedures but disputed these claims; Kooragang Cement Pty Ltd v Bates and Murphy v Allity Management Services Pty Ltd applied; Held- award for the applicant in relation to the claim for right knee replacement as reasonably necessary treatment as a result of the work injury; award for the respondent in relation to the claim for podiatry services.
DETERMINATIONS MADE:	1. The name of the respondent is amended to Robert Menzies College. 2. That the proposed right knee replacement surgery, and associated treatment, is reasonably necessary treatment as a result of the work-related injury on 3 November 2016. 3. The respondent is to pay the costs of the proposed right knee replacement and associated treatment costs at the applicable workers compensation gazetted rates. 4. Award for the respondent in relation to the claim for podiatry services including orthotics.

STATEMENT OF REASONS

BACKGROUND

Manal Tadrus, the applicant, was employed with the respondent, Robert Menzies College, as a chef manager when on 3 November 2016 when she was lifting a tray of meat from an oven, slipped and fell sustaining various injuries, including to her right knee. In these proceedings Mrs Tadrus is seeking compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for proposed right knee replacement surgery and associated treatment.
The respondent’s workers compensation insurer, AAI Limited trading as GIO, issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 1June 2020 in which it advised that it had previously accepted liability for her right knee injury sustained on 3 November 2016. The GIO also stated it had approved the left knee arthroscopy on 11 March 2019 and right knee arthroscopies on 24 August 2018 and 29 November 2019. The GIO referred to a report of Associate Professor Papantoniou dated 9 April 2020 in which the doctor indicated that he believed that the pain in Mrs Tadrus’s lower limbs was radiating from her lumbar spine. The GIO stated it had sought further information from Mrs Tadrus’s treating specialist about the surgery and how it is a direct result of the injury on 3 November 2016 but had not received a response. The GIO advised that it disputed that the proposed right total knee replacement surgery is reasonably necessary treatment pursuant to section 60 of the 1987 Act[1].
[1] Application to Resolve a Dispute (ARD) p 4.
On 30 September 2020 Mrs Tadrus’s solicitors requested a review of the above-mentioned decision, enclosing a report from Dr Drew Dixon dated 14 August 2020 for their consideration[2].
[2] ARD p 9.
On 7 and 12 October 2020 GIO issued further notices disputing liability for the right total knee replacement surgery and ongoing podiatry services[3] referring to the opinion of their Dr John Bentivoglio.
[3] ARD p 10.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/ arbitration hearing before me on 25 February 2021. Mr Phillip Perry, counsel, instructed by Mr Richard Debabneh, solicitor, appeared for Mrs Tadrus, who was present. Mr Tony Baker, counsel, instructed by
Mr Brad Quillan, solicitor, and Mr Shaun Eckert from the insurer GIO appeared for the respondent. The proceedings were conducted on the MODRON audio-visual platform due to the COVID-19 situation.
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;
(b) Application to Admit Late Documents filed by the respondent dated 27 January 2021 attaching its Reply, and

(c) Application to Admit Late Documents (AALD) filed by the applicant dated 15 February 2021 attaching the report of Associate Professor Papantoniou dated 5 October 2018.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

The main evidence relating to the right knee injury and the proposed total right knee replacement surgery is summarised below. In addition, there are several reports from Dr Richa Rastogi dated 26 June 2018, 17 September 2018, 26 February 2019 and 22 May 2020. Dr Rastogi is Mrs Tadrus’s treating psychiatrist who has diagnosed that she has decompensated emotionally since March 2017. Westmead Hospital notes are also available in relation to an admission from 29 May 2019 to 4 June 2019 with bilateral lower limb paraplegia. There is a reference to a previous diagnosis of conversion disorder with multiple episodes of the same previously at Concord Hospital.

Associate Professor Papantoniou

Associate Professor Papantoniou is Mrs Tadrus’s treating orthopaedic and spinal surgeon. He reported to her general practitioner, Dr Tony Girgis, on 5 December 2017[4]. He noted that on 3 November 2016 Mrs Tadrus fell at work injuring both knees and her low back. He records that she kept working and sought treatment from George Hanna, who is a chiropractor. He noted she continued to have a limp and loss of balance which progressively became worse and that she continues to have bilateral knee pain, deep within the knees. He noted she had no history of prior knee trauma and was pain free and working in her normal job before the accident.
[4] ARD p 54.
Associate Professor Papantoniou found on examination of the right knee moderate effusion and she was very tender all over the knee, but worse over the medial and lateral joint lines. He said she had pain on valgus stressing of the knee. She had a positive medial and lateral McMurray’s sign. The doctor referred to the MRI scan of the knee which he stated demonstrates lateral meniscal degeneration and a tear and he said Mrs Tadrus has a lateral patellar tilt. He recommended a right knee arthroscopy, partial lateral meniscectomy and lateral release.
On 27 March 2018 Associate Professor Papantoniou reviewed Mrs Tadrus again. He has a history that her pain was very severe and the week prior her knees gave way and she fell over, fracturing her ribs. The doctor indicated that she had a direct blow to her left knee leading to retropatellar chondral damage. He recommended a left knee arthroscopy and chondroplasty in addition to the right knee surgery he had previously recommended[5].
[5] ARD p 56.
On 3 May 2018 Associate Professor Papantoniou reviewed Mrs Tadrus again noting the continuation of bilateral knee pain with each step[6].
[6] ARD p 57.
On 9 August 2018 Associate Professor Papantoniou referred Mrs Tadrus to the podiatrist stating that Mrs Tadrus was having difficulty bending to perform her own foot care and he said she may also need orthotics and asked for these to be provided as needed[7].
[7] ARD p 58.
In a brief report dated 5 October 2018 dealing with the expected sequelae of the right knee arthroscopy, Associate Professor Papantoniou advised that in the medium to long term Mrs Tadrus will require a total knee replacement[8].
[8] AALD p 1.
On 18 October 2018 Associate Professor Papantoniou reviewed Mrs Tadrus advising Dr Girgis that she had her right knee arthroscopy on 24 August 2018. He noted that she continues to have quite significant pain in the peri-patellar region of the right knee and has developed left knee pain from the limp associated with protecting the right knee. She was also getting electric shock type pains in the lateral proximal right tibia. He also referred to her back pain and radiculopathy and other body pains. He also recommended she consult Dr Terry Kwong, rheumatologist, for her generalised nature of her pains[9].
[9] ARD p 59.
On 18 April 2019 Associate Professor Papantoniou reviewed Mrs Tadrus and the report mainly deals with her lumbar pains for which he recommended L5/S1 nucleoplasty. For the ongoing right knee pain, the doctor recommended a right knee arthroscopy[10].
[10] ARD p 60.
On 21 May 2019 Associate Professor Papantoniou reviewed Mrs Tadrus and reported to Dr Girgis and his report details her symptoms in multiple parts of her body. In terms of the right knee, he again recommended an arthroscopy. The doctor referred Mrs Tadrus to Professor Con Yiannikas, neurologist, for nerve conduction studies of the upper and lower limbs[11].
[11] ARD p 62.
On 14 June 2019 Associate Professor Papantoniou reviewed Mrs Tadrus and reported that she continued to have right knee and lower back pain. The knees continued to give way and he noted she had attended Westmead Hospital for nine days where she received physiotherapy and psychiatric treatment. However, Associate Professor Papantoniou noted that the MRI scan had demonstrated an L5/S1 disc bulge and annular tear with impingement on the dura and in the left knee an MRI scan had identified a ruptured Baker’s Cyst and cleavage tear of the lateral meniscus and moderate effusion. Her high pelvis meant that she was not suitable for the nucleoplasty that the doctor had previously recommended for the L5/S1. In terms of the right knee, the doctor still recommended the arthroscopy and chondroplasty[12].
[12] ARD p 64.
On 8 August 2019 Associate Professor Papantoniou reviewed Mrs Tadrus and reported to Dr Girgis. He advises that she had the left knee arthroscopy and chondroplasty on 11 March 2019[13] and he details her ongoing symptoms. He notes she continues to have pain in her right knee and the abnormal gait was causing back pain. The doctor noted the right knee arthroscopy was approved by the insurer[14].

[13] Operation report left knee 11 March 2019, ARD p 82.
[14] ARD p 66.
On 10 September 2019 Associate Professor Papantoniou reviewed Mrs Tadrus with the report mainly dealing with her back and as her feet were going blue, he referred her to Dr Lemech to check vascular issues[15].
[15] ARD p 68.
On 28 November 2019 Associate Professor Papantoniou reviewed Mrs Tadrus and reported that she still had right knee pain and he recommended right knee arthroscopy, chondroplasty and microfracture technique. These procedures were to be performed the next day[16].
[16] ARD p 69.
On 10 December 2019 Associate Professor Papantoniou confirmed the right knee surgery took place on 29 November 2019. In this report the doctor recorded that over the last two days her right knee had given way three times, and she fell, and her medial joint pain continues[17].
[17] ARD p 70.
On 23 December 2019 Associate Professor Papantoniou re-examined Mrs Tadrus and on examination noted a valgus alignment of the right knee, which the doctor said might be the cause of some of her pain. He sent Mrs Tadrus for EOS standing to plain x-ray of both knees with angular measurement[18].
[18] ARD p 71.
On 25 February 2020 Associate Professor Papantoniou examined Mrs Tadrus who reported ongoing right knee pain. The doctor stated that the EOS demonstrated a 10° valgus alignment of the right knee. He recommended a total right knee replacement. The doctor also refers to the low back issues, including that Mrs Tadrus had a piece of glass removed from her right foot by the podiatrist that she could not feel, and the doctor said this was consistent with the S1 distribution[19].
[19] ARD p 73.
On 9 April 2020 Associate Professor Papantoniou had a telehealth consultation with Mrs Tadrus. The report mainly deals with her back and the doctor notes that the MRI scan of 5 March 2020 shows an L5/S1 broad based disc bulge with an annular tear and the disc is touching the L5 nerve root. At L4/5 there was a minor disc bulge. The doctor thought the pain in her lower limbs was radiating from her lumbar spine. The doctor states that he still believes that Mrs Tadrus is best served with a left knee arthroscopy and a right total knee replacement. He adds if the lower limb pain turns out to be radicular, she may also require a discectomy[20].
[20] ARD p 76.
On 10 May 2020 Associate Professor Papantoniou provided a report to GIO. He says there are many confounding issues in terms of pain that are still being investigated. He noted she still had right knee pain and had fallen three times shortly after the arthroscopic surgery[21].
[21] ARD p 77.
On 12 May 2020 Associate Professor Papantoniou sent an approval request to GIO for the right total knee replacement[22].
[22] ARD p 81.

Podiatrist

Sarah Youssef podiatrist reported to Dr Tony Girgis on 8 April 2019 noting that Mrs Tadrus was unable to self-manage her foot and nail care due to the inability to flex her knee post-surgery. The treatment was referred to in detail and it was noted that Mrs Tadrus was to be issued with modified bilateral customised orthoses to offload the knee bilaterally. Monthly appointments were recommended to maintain her foot and nail care[23].

[23] ARD p 49.
Fady Ebeid, podiatrist at SG Podiatry, conducted a biomechanical assessment of Mrs Tadrus. It is stated that in November 2019 Mrs Tadrus approached that clinic for a second opinion and they supplied a new pair of orthoses which improved her ability to walk for 20 minutes before pain starts. Examination details are recorded, including that Mrs Tadrus has a pes cavus foot type and significant pronation at the ankles and slight pronation through the arch. In addition to the orthoses, supportive footwear was recommended. Costing of $450 was given for the orthotics, $70 for a follow up consultation and $110 for a long consultation[24].
[24] ARD p 85.

George Hanna

George Hanna is a chiropractor who has treated Mrs Tadrus from 13 July 2017 to late December 2019. In report dated 29 June 2020 he says Mrs Tadrus has received “regular therapy” at his practice in this period. However, he does not specify what that therapy was or how it involved the right knee. While he supports the total knee replacement, I consider caution must be exercised in placing weight on his opinion given he is a chiropractor and not an orthopaedic specialist[25].
[25] ARD p 88.

Dr Ahmad

Dr Omar Ahmad, neurologist, reported to Dr Girgis on 8 April 2020. He diagnoses that Mrs Tadrus was suffering from probable functional neurological disorder presenting with bilateral knee pain due for total knee replacements and noting the prior arthroscopies. He also found she had global weakness, peripheral sensory loss mainly right leg versus left as well as significant ataxia, chronic pain and depression in 2018. He noted that Mrs Tadrus had episodes of tetra paresis presenting to hospital at Concord and Westmead and being diagnosed as likely having functional episodes.
Dr Ahmad has a history of the workplace accident as well as a comprehensive medical history about other conditions suffered by Mrs Tadrus. Dr Ahmad concluded that she has features of functional neurological disorder following the workplace injury in 2016. He mentioned that Mrs Tadrus should continue with managing her depression as well as having rehab involvement, which he said might be best addressed after her knee surgeries[26].
[26] Reply p 53.

Dr Nazha

Dr Alan Nazha is a pain specialist who reported to Dr Girgis on 6 October 2020. He says he has no expertise in functional or neurological disorders. He recommended she be seen by Royal Prince Alfred Hospital Pain Clinic[27].
[27] ARD p 89.

Dr Dixon

Dr Drew Dixon, orthopaedic surgeon, has provided a medico-legal report for Mrs Tadrus dated 4 August 2020[28] in which he diagnosed an osteochondral injury to the right knee with increasing valgus deformity, requiring arthroscopic surgery and other injuries. He states that Mrs Tadrus is expected to require total knee replacement on the right and says there is possibility of deterioration in her other knee where there will be overuse of the left knee until her right knee has been replaced.
[28] ARD p 18.
Dr Dixon adds:
“She has had an adequate period of conservative management and due to deterioration in her knee with increasing stiffness, and swelling with increasing valgus deformity, a right total knee replacement is indicated. This is appropriate treatment for her post-traumatic knee condition and will provide effective treatment in alleviating the consequences of her knee injury. She has already had all the conservative treatments including arthroscopic surgery and a knee replacement will be a positive benefit and deliver a good outcome for the worker and the knee replacement is considered a conventional method of treatment for her condition.”
In coming to this opinion Dr Dixon considered the various radiological reports and stated that Mrs Tadrus had significant ongoing disability in her knees, particularly on the right, with increasing valgus deformity with anterolateral knee pain with marked antalgic gait with night pain and morning stiffness and a total knee replacement is indicated and it is causally related to her fall at work. Dr Dixon did not physically examine Ms Tadrus due to Covid-19 restrictions, his examination was conducted over Zoom. However, he finds that “initially she demonstrated 10 degree valgus alignment of the right knee and this is steadily getting worse and clinically today was 15 degrees and relief of pain and stiffness in the knee can be achieved by right total knee replacement.[29]”

Dr Bentivoglio
[29] ARD p 20 and 22.

Dr John Bentivoglio, orthopaedic surgeon, provided a report for GIO dated 23 September 2020[30]. Under the heading diagnosis/opinion Dr Bentivoglio stated that Mrs Tadrus had fallen on her knees and normally this would produce patellofemoral symptoms. However, he added that it is possible that she did sustain damage to her right lateral meniscus. He noted that she had undergone two arthroscopic procedures on her right knee with no improvement in her symptoms. Dr Bentivoglio found that Mrs Tadrus had quite marked valgus malalignment in her knee. He says
“It is difficult to determine how this could have developed from her knee injury; however, there is a possibility it was a pre-existing deformity. There is no reason on her most recent MRI scans for her to have such a large valgus malalignment present in her knee.[31]”
[30] Reply p 5.
[31] Reply p 12.
On examination Dr Bentivoglio found:
“She did have evidence of increased valgus present, particularly involving her right knee. It measured that she had 12° valgus malalignment present in the right knee. As she did have a lateral meniscectomy performed, this would account for the slight increased valgus malalignment.”
He diagnosed that Mrs Tadrus had some degree of damage to the lining of her right knee joint together with a lateral meniscal tear in the workplace fall. The doctor found that Mrs Tadrus has quite marked valgus malalignment present in her right knee. He said he was unable to identify the cause of this.
In question 4 Dr Bentivoglio was asked about whether a total right knee replacement surgery was reasonably necessary related to the workplace injury. He replied that because of the significant valgus malalignment she “possibly does require knee joint replacement”, however, the doctor thought it unlikely that the valgus malalignment was caused by the workplace fall. He does not explain why.

In relation to the podiatrist treatment with orthotics, Dr Bentivoglio said this is entirely inappropriate and that it will not improve her symptoms.

Relevant legal principles

The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[32] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[32] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[33], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[33] [2015] NSWWCCPD 49, Murphy.
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by section 60 of the 1987 Act was considered in the case of Diab v NRMA Ltd[34], which in turn deals with Judge Burke’s decision in Rose v Health Commission (NSW)[35]. In Diab Roche DP stated at [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.”
[34] [2014] NSWWCCPD 72.
[35] (1986) 2 NSWCCR 32.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose with approval and stated:

“[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.
[90] 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’”.

In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[36] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[36] [2008] NSWCA 246, Nguyen.

Determination

The respondent submitted that the rationale for conducting a total right knee replacement relates to the presence of valgus deformity in the right knee and there is an issue as to whether that relates to the work-place injury on 3 November 2016. The other main issue agitated by the respondent was the need in Mrs Tadrus’s case to look at the overall medical picture in a holistic way and when that it undertaken it can be seen there are many symptoms consistent with psychological, not physical, causes.
In relation to the psychological condition of Mrs Tadrus the respondent’s counsel referred to the notes of Westmead Hospital from the 2019 admission in detail. He submitted examinations conducted there revealed inconsistencies that were more likely than not due to psychological factors. I accept that submission. I also accept that the evidence from Drs Ahmed, Nazha and Rastogi all support that Mrs Tadrus’s presentation cannot be explained on physical grounds only. However, Associate Professor Papantoniou is an experienced orthopaedic surgeon as demonstrated by his qualifications. He has examined Mrs Tadrus on approximately 20 occasions from the end of 2017 over the following years. He is aware of the complexity of Mrs Tadrus’s case and the multitude of her complaints in other parts of her body and he has found injury related pathology in Mrs Tadrus’s right knee. The respondent submitted that the doctor did not know that Mrs Tadrus had previously been diagnosed as having a conversion disorder. I find that this does not render the doctor’s findings on physical examination unsound as there are objective findings relating to the right knee injury which are not just dependent on Mrs Tadrus’s subjective accounts.
In his first examination Associate Professor Papantoniou found moderate effusion in the right knee. He also found that while she was very tender all over the knee, it was worse over the medial and lateral joint lines. He found she had pain on valgus stressing of the knee. I find this to be a significant finding in light of the later objective finding in 2020 that the EOS x-ray demonstrated a 10° valgus alignment of the right knee.
Also in his first examination of Mrs Tadrus, Associate Professor Papantoniou found a positive medial and lateral McMurray’s sign and he referred to the MRI scan of the knee which he stated demonstrates lateral meniscal degeneration and a tear and he said Mrs Tadrus has a lateral patellar tilt. He recommended a right knee arthroscopy, partial lateral meniscectomy and lateral release.
I consider that Associate Professor Papantoniou is in a better position to determine whether the proposed right knee replacement surgery is reasonably necessary treatment as a result of the workplace injury than Dr Bentivoglio because Associate Professor Papantoniou has examined Mrs Tadrus on so many occasions and has actually seen inside the knee with the two operative procedures he has performed. Dr Bentivoglio did accept that Mrs Tadrus had some degree of damage to the lining of her right knee joint together with a lateral meniscal tear in the workplace fall.
Dr Bentivoglio found there was “significant valgus malalignment” and said because of that she “possibly does require knee joint replacement”, however, the doctor thought it unlikely that the valgus malalignment was caused by the workplace fall. He does not really explain why, although he states “[i]t is difficult to determine how this could have developed from her knee injury; however, there is a possibility it was a pre-existing deformity”.
Given Mrs Tadrus did not have right knee symptoms before the fall, I find it is a reasonable inference to draw that even if she had an underlying valgus deformity in the knee it was aggravated by the fall, as Associate Professor Papantoniou in his first examination found pain on valgus stressing of the knee.
There was also discussion during the submissions about the degree of the valgus malalignment with the respondent submitting that Dr Dixon’s finding of 15° deformity was not reliable given he did not physically examine Mrs Tadrus as he conducted his examination via Zoom. I accept it is difficult to rely on Dr Dixon’s precise measurement because of this factor.
However, Dr Bentivoglio on 23 September 2020 found that Mrs Tadrus “did have evidence of increased valgus present, particularly involving her right knee. It measured that she had 12° valgus malalignment present in the right knee.” He offers an explanation for this because he states, “As she did have a lateral meniscectomy performed, this would account for the slight increased valgus malalignment.” I find that Dr Bentivoglio’s doubts on causation seem to be because he has directed his focus as to whether the fall could have caused the valgus malalignment and not to whether it could have aggravated it.
I am satisfied to the standard set out in Nguyen that since the fall on 3 November 2016 Mrs Tadrus’s injury to her right knee has involved symptoms referable to the valgus malalignment that were not present before the fall, and have become worse following the meniscectomy. As was stated in Kooragang an incident can set in train a series of events and I find that has occurred in Mrs Tadrus’s case. While there is no doubt her overall presentation is clouded by psychological factors, examinations by Associate Professor Papantoniou coupled with the radiological investigations have found objective pathology in Mrs Tadrus’s right knee.
I do not accept the respondent’s counsel’s submissions that one would expect a lessening of the valgus malalignment following the meniscectomy as there is no medical evidence before me to support that submission and Dr Bentivoglio accepts the lateral meniscectomy could have accounted for the increase in the valgus malalignment.
Previously in these reasons I have referred to the principles referred to in Murphy, that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. The question Mrs Tadrus has to satisfy is, has the work-injury materially contributed to the need for proposed right knee replacement surgery?
Even if there was an underlying valgus malalignment, Dr Bentivoglio supports an increase with the meniscectomy. There is no dispute that the meniscectomy that was performed was for any other reason than to treat the injury Mrs Tadrus sustained in her right knee in the work accident on 3 November 2016. Accordingly, I am satisfied that the work-place right knee injury has materially contributed to the need for knee replacement surgery as proposed by Associate Professor Papantoniou.

Applying the factors discussed in Diab, it can be seen that Mrs Tadrus has undergone a raft of treatment including two surgeries and medication. The cost is not excessive and the medical evidence, even from Dr Bentivoglio, supports that this type of surgery is appropriate treatment. Of course, there is a risk of a poor outcome due to Mrs Tadrus’s psychological state, but I find that is not a reason to decline the surgery, rather she will need the appropriate support to assist her. In Diab at [89] Roche DP stated, “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.” In Mrs Tadrus’s case I find there are persuasive objective findings by her doctors of injury to her right knee which should be corrected by the surgery.
Therefore, I find that the proposed right knee replacement surgery is reasonably necessary treatment as a result of the work-related injury on 3 November 2016.
Mrs Tadrus also makes a claim for the cost of orthotics. The claim is based on the report of SG Podiatry dated 23 June 2020. Dr Bentivoglio states this treatment is entirely inappropriate and will not improve her symptoms. Dr Dixon does not deal with this type of treatment. In the SG Podiatry report Mr Ebeid says that their clinic had provided Mrs Tadrus with a new pair of orthoses which had improved her ability to walk up to 20 minutes. However, he notes that she was yet to start any rehabilitation with his clinic. The claim that has been made in these proceedings is for future treatment being the provision of orthotics and consultation costs. This report does not provide any timeline as to when another pair of orthotics may be required. Given I have found in favour of Mrs Tadrus in relation to the knee replacement surgery, I consider any consideration of further podiatry treatment is premature. Also, the podiatrist refers to Mrs Tadrus having a pes cavus foot type and significant pronation at the ankles and slight pronation through the arch. The respondent submits that there was no foot injury and I accept that submission. It is not clear from the podiatrist’s report how the need for orthotics is causally related to the workplace injury. Therefore, for all of these reasons I find an award for the respondent for the podiatry claim.

SUMMARY

I find that the proposed right knee replacement surgery, and associated treatment, is reasonably necessary treatment as a result of the work-related injury on 3 November 2016.

I order that the respondent is to pay the costs of the proposed right knee replacement and associated treatment costs at the applicable workers compensation gazetted rates.

Award for the respondent in relation to the claim for podiatry services including orthotics.

Josephine Bamber
PRINCIPAL MEMBER

9 April 2021