Taumoepeau v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taumoepeau v Westpac Banking Corporation [2024] NSWPIC 322
APPLICANT:	Josephine Taumoepeau
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Fiona Seaton
DATE OF DECISION:	19 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained a left knee injury as a result of her employment; whether the proposed left knee arthroscopy surgery is reasonably necessary; Held – the applicant sustained a left knee injury on 26 April 2023 in the course of her employment; the left knee arthroscopic surgery proposed by Dr Thomas is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the medical hospital and related expenses of the left knee arthroscopic surgery at the gazetted rates.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to her left knee in the course of her employment with the respondent on 26 April 2023. 2. The left knee arthroscopic surgery proposed by Dr BijoyThomas is reasonably necessary medical treatment as a result of the applicant’s injury on 26 April 2023 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 3. The respondent is to pay the future medical hospital and related expenses of the left knee arthroscopic surgery proposed by Dr BijoyThomas in accordance with his request dated 13 September 2023 at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Josephine Taumoepeau is a 60-year-old Business Lending Officer employed by the respondent since 1997. On 26 April 2023 there was a fire drill in her office and she was required to walk down stairs from level 33. When she reached about level 20 she felt a click in her left knee and had difficulty moving it. She reported the injury to the fire warden who asked that she continue to walk down to level 12 where she was able to take a lift to the ground level.
On 14 September 2023 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing that the applicant had sustained an injury to her left knee and denying liability for weekly payments of compensation and medical expenses as a result of that injury. The dispute was confirmed in a further s 78 notice dated 20 February 2024.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 8 March 2024, the applicant claims future medical expenses for surgery of arthroscopy of the left knee recommended by Dr Thomas pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation/arbitration for determination of the respondent’s liability for the applicant’s left knee injury or the aggravation of a pre-existing left knee condition pursuant to s 4 of the 1987 Act, and whether the left knee arthroscopic surgery proposed by Dr Thomas is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her left knee on 26 April 2023 pursuant to s 4 of the 1987 Act, and
(b) whether the left knee arthroscopic surgery proposed by Dr Thomas is reasonably necessary as a result of injury on 26 April 2023 pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 30 May 2024. The applicant was present and represented by Mr Vaughn Jurisich of counsel instructed by Mr Lemoto of PK Simpson. Mr John Fennel of counsel appeared for the respondent instructed by Ms Fung of Hall & Wilcox. Ms Sau was also present.
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 respondent’s Application to Admit Late Documents (AALD) dated 24 May 2024 was admitted by consent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply and attached documents, and
(c)    the respondent’s AALD dated 24 May 2024 and attached documents.

Oral evidence

There was no application made to call oral evidence at the hearing.

Applicant’s evidence

The applicant’s evidence is set out in her signed statement dated 4 March 2024.
She has been employed by the respondent as a Business Lending Officer since
27 October 1997.
On 23 April 2023 while walking down stairs during a fire drill she injured her left knee. She felt a click in her left knee and had difficulty moving it. She was having a very hard time walking down the steps.
She reported her injury, she was unable to return to her office and she then lodged a claim form for her left knee injury. Her claim was accepted and she received weekly compensation payments from the date of injury for about two months.
She consulted Dr Shrestha and Dr Titus Thomas, general practitioners, and she was referred to Dr Bijoy Thomas, orthopaedic surgeon, who recommends she have left knee surgery.
The clinical records of Our Medical Home Marsden Park include a reference to the applicant consulting Dr Titus Thomas as a result of experiencing left knee pain on 1 December 2022, prior to the injury, when she was referred for a left knee X-ray. The reason for the visit is noted as “Left Osteoarthritis of knee”.[1]
[1] Page 38 of the ARD.
On 8 May 2023 the clinical records include a consultation with Dr Majlish of the same practice when “PAIN AT LEFT KNEE FOR A WEEK AFTER FIRE DRILL rom painful”[2] was noted.
[2] Page 39 of the ARD.
At the applicant’s next consultation with Dr Shrestha on 10 May 2023, the left knee X-ray was discussed and “most likely soft tissue injury”[3] noted. Mobic was prescribed.
[3] Page 39 of the ARD.
The clinical records then include descriptions of the investigations including the left knee X-ray, referral for an ultrasound and MRI and the referral to Dr Bijoy Thomas, treating specialist, on 28 June 2023.
The left knee ultrasound of 17 June 2023 concludes:
“[f]indings concerning for the presence of a ganglion cyst emanating from the anteromedial aspect of the left knee possibly due to underlying meniscal tear versus other cause. An MRI examination of the left knee is recommended for further assessment of this finding if clinically indicated.”[4]
[4] Page 26 of the ARD.
The MRI of the left knee carried out on 26 July 2023 concludes “1. Medial compartment OA with torn medial meniscus and small parameniscal cyst and reactive bony oedema and partial tearing of the MCL. 2. PF OA”.[5]
[5] Page 33 of the ARD.
Dr Bijoy Thomas, treating specialist, in his report to Dr Shrestha of 13 September 2023 refers to a meniscal tear along with some degenerative changes, saying that conservative management since the injury in April including a cortisone injection has failed to alleviate symptoms, and that the applicant was “getting frequent mechanical symptoms like painful clicking and locking of the knee”.[6] He reports the applicant would benefit from an arthroscopy to deal with the mechanical symptoms.
[6] Page 25 of the ARD.
Dr Bijoy Thomas’ request for approval for the applicant to undergo surgery in the form of arthroscopy and meniscal debridement of the left knee was forwarded to the respondent on the same date.
Dr Bodel, orthopaedic surgeon, qualified by the applicant, in his report of 4 December 2023 provides his opinion that the injury to the left knee was caused by the descending of the set of stairs, and that while the pathology includes degenerative changes “[t]here does appear however to have been a frank injury involving the medial meniscus”.[7]
[7] Page 20 of the ARD.
In Dr Bodel’s opinion, as long as the proposed surgery is done carefully it is appropriate for the management of the tear of the meniscus and is reasonably necessary for the management of the injury that was caused by the accident.[8] He strongly suspects that while surgery may improve function this will inevitably lead to a total knee replacement within the next five to seven years.[9]
[8] Page 21 of the ARD.
[9] Page 24 of the ARD.

Respondent’s evidence

The respondent qualified A/Prof Miniter, orthopaedic surgeon. In his report of
[10] Page 25 of the Reply.
29 August 2023 the doctor describes medial compartment osteoarthritic change, diagnoses degenerative change affecting the left knee for which employment was not the main or substantial contributing factor, and says “I do not believe there is any place for surgical treatment at this stage.”[10]
A/Prof Miniter says the “matter will continue until joint replacement has been completed successfully.”[11]
[11] Page 28 of the Reply.
In his supplementary report of 29 September 2024 A/Prof Miniter is asked to comment on a surveillance report and footage. This doesn’t cause him to change his opinion that the applicant has a genuine issue which is not work related, and he confirms his opinion that “[t]his lady has issues with medial compartment arthritic change”.[12]
[12] Page 30 of the Reply.
The ultrasound of the left knee dated 17 June 2023 and the MRI dated 26 July 2023 described at paragraphs 20 and 21 above are included with the Reply.
The remaining documents attached to the Reply include a report from Procare dated
10 November 2023, correspondence regarding conduct issues, meeting minutes as well as email correspondence regarding leave and lunch breaks which do not appear to be relevant to the issues in dispute in these proceedings.
The respondent’s AALD includes a supplementary report from A/Prof Miniter dated
17 April 2024 and updated clinical records from Our Medical Home Marsden Park to
22 March 2024 which describe ongoing treatment of the left knee. Treatment includes oral analgesia, anti-inflammatory medication, ongoing physiotherapy, cortisone injection, the surgical option and certificates were issued.
In his supplementary report A/Prof Miniter, commenting on Dr Bodel’s report of
4 December 2023, says:
“[t]here is no evidence of a frank injury. The meniscal tear is clearly longstanding and is not the result of descending stairs during a fire drill on 26/4/2023. You will note I have previously provided my methodology in relation to this matter, and I fail to understand the need to change my opinion.”[13]
[13] Page 2 of the AALD.
The doctor agrees there is a meniscal tear but it is not an acute lesion and is part and parcel of the applicant’s severe osteoarthritic disease. His opinion remains that arthroscopic treatment is not appropriate management in this case and the applicant does not require a knee arthroscopy whether it is a work related issue or not. The doctor’s opinion is that the applicant is a poor candidate for any type of surgical treatment.
A/Prof Miniter concludes;
“Allow me to make one further comment, which should be borne in mind when the Personal Injury Commission are considering this matter. Arthroscopic surgery in cases such as this is usually unsuccessful, but it can be a factor leading to further degradation of the knee with precipitous failure of the compartment which is already arthritic. You are well aware of the poor outcomes from surgical treatment in this particular situation, and I would advise all concerned that if arthroscopy fails, the next step is knee replacement surgery.”[14]
[14] Page 3 of the AALD.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
On 26 April 2023, the applicant as a result of a fire drill walked down from level 33 to level 20 and felt a click in her left knee and had difficulty moving it. She reported this to the fire warden who asked her to continue to level 12, another 8 levels, where she could take a lift to the ground floor.
The applicant saw her general practitioner and Dr Bijoy Thomas, treating specialist, and she was then examined by Dr Bodel. She has received conservative treatment and none of it has worked. The doctors have concluded the next treatment she should have is an arthroscopy.
The diagnosis is a meniscal tear of the left knee that shows on the ultrasound of
17 June 2023. The applicant next had an MRI that confirms she suffers with a torn medial meniscus.
The applicant is referred to Dr Bijoy Thomas, treating specialist, who arranges cortisone injections, as she has a lot of mechanical symptoms including painful clicking and locking of the knee.
Dr Thomas provides his opinion that, to help her lifestyle and work capacity she would benefit from an arthroscopy to deal with the mechanical symptoms. She started to have physiotherapy, she has had conservative treatment, however she still has pain.
Dr Bodel, orthopaedic surgeon, gives a detailed description of the history relating to the injury and concludes that future management will depend on the outcome of the arthroscopy, which he recommends.
The doctor’s diagnosis is a tear of the medial meniscus that occurred while the applicant descended the fire stairs during the fire drill, which also caused an aggravation and acceleration, exacerbation and deterioration of the underlying disease. It is the frank injury of the torn medial meniscus that requires treatment.
His opinion is that the proposed surgery may help and that in five to seven years she will require a total knee replacement. In the meantime however, the arthroscopy would certainly assist the applicant in her lifestyle and capacity to work for at least the next five years.
The s 78 dispute notice refers to surveillance film. The applicant was observed on a total of four occasions. On 14 August 2023 there are 20 hours of surveillance showing the applicant doing some shopping for example, and the applicant’s submission is she is walking with some pain.
On 12 October 2023 and 3 and 5 November 2023 the applicant, who is unaware of being observed, is seen going into a chemist and wearing a brace on her knee. The cost of the surveillance was wasted in the applicant’s submission and the cost would have been enough for the proposed surgery.
A/Prof Miniter says there was no evidence of a frank injury and the applicant submits that opinion cannot be accepted. The event that occurred is a frank injury while going down the stairs and she managed to reach level 20.
It is also an error the applicant submits to say there is an aggravation of the compartmental osteoarthritis with a two to four week recovery period and no more.
The applicant’s submission is that A/Prof Miniter comes to this conclusion on an improper basis. The doctor does not refer in his report of 17 April 2024 to the objective tests mentioned above. The doctor appears more concerned with the factual matters in his report of 29 September 2023 which is fully concerned with the surveillance report and footage.
In this case, while acknowledging A/Prof Miniter’s experience as a qualified orthopaedic surgeon, the applicant submits that he has not got it right. He has relied on factual rather than medical matters, and comes to the conclusion that he does not believe the applicant. The applicant submits that this is not the doctor’s task and the warnings given to the applicant by the respondent have nothing to do with this injury.
The applicant complained of some left knee pain to her general practitioner on
1 December 2022 and it is noted as osteoarthritis. That does not mean she does not then have a medial meniscus tear. The same doctor reported on the MRI on 28 June 2023 and says MRI left knee, meniscus under Workcover. Most people have some osteoarthritis at the age of 60 and that does not mean she has not also had a frank injury.
The actual treatment is appropriate and reasonable on the basis of the applicant’s medical evidence and the bulk of doctors would agree with this, the applicant submits. The advice of Dr Bodel, a very respected orthopaedic surgeon, ought to be followed.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. I have set these out in some in detail.
Regarding the mechanism of injury, the respondent notes the applicant’s description of the injury in her statement, and the pre-injury medical history where in paragraph 15 the applicant says she did not suffer any prior injury to her left knee.
The respondent submits this is at odds with the entry in the clinical notes on
1 December 2022 where left knee pain is recorded with no trauma, could not sleep well, on examination no effusion, slight tenderness medically (perhaps meant to read medially) left knee and crepitus plus are noted. The reason for the visit is recorded as left osteoarthritis of knee.
This is significant as it demonstrates that approximately five or six months before the incident about which the applicant complains there were complaints about pain in the left knee, which in the respondent’s submission is consistent with a pre-existing condition.
The clinical notes also record on 6 December 2022 that the applicant contacted her general practitioner as she lost her referral for an X-ray and the notes mirror what was recorded on
1 December 2022.
The respondent submits there is no dispute the applicant has a knee condition and what is really in dispute is the onset of that condition. The respondent’s submission is that this condition predates the incident of 26 April 2023.
It is not until 8 May 2023 that the applicant sees her general practitioner. Pain in the left knee is recorded a week after the fire drill, and a referral made for a left knee X-ray to rule out osteoarthritis. That X-ray report of 9 May 2023 does not tell us a great deal and Dr Shrestha, general practitioner, notes on 10 May 2023 the findings are most likely soft tissue injury.
On 13 June 2023 the clinical records include ongoing left knee pain, worse after kneeling recently, no abnormality detected on the X-ray, good range of motion with a request for an ultrasound and to discuss with a physiotherapist. The respondent submits this is what one would expect when one has a degenerative knee condition.
The ultrasound of 17 June 2023 demonstrates a ganglion in the anteromedial aspect of the left knee possibly due to underlying meniscal tear versus other cause. Unfortunately, we do not have a report from before the incident for comparison.
On 27 June 2023 the applicant discusses the MRI with her general practitioner and on
19 July 2023 Dr Bijoy Thomas, treating specialist, provides his first report. This report, the respondent submits, does not give any insight into the cause of the condition and Dr Thomas reflects the history he is given.
Importantly Dr Thomas notes the applicant cannot exactly recall the nature of the injury even though she was in significant pain. The doctor notes the applicant gives a history of clicking but no locking or giving way of the knee and she has been off work since the injury given her discomfort. He says she has a combination of degenerative changes and possible meniscus pathology in the knee and advises a follow-up after the MRI.
In his next report of 10 August 2023 Dr Thomas again notes a combination of degenerative changes and meniscal pathology and that it is worth trying conservative management first. Treatment progresses from that point onwards.
For completeness the respondent notes Dr Thomas’ report of 13 September 2023 sets out the basis for his opinion that the proposed treatment is reasonably necessary, but he does not explain whether that results from the injury and this is left to other experts.

Dr Thomas’ request for surgery approval is also dated 13 September 2023.
In Dr Bodel’s report of 4 December 2023 he describes the mechanism of injury including that the applicant is going down stairs from level 33 and by level 20 she notices pain in her left knee, so the mechanism described is just the act of travelling down the stairs.
The doctor notes as past medical history that the applicant has been previously quite well and has had no problems with her knees, which the respondent submits is demonstrably wrong noting the clinical records referred to above.
Dr Bodel comments that there were no X-rays or other tests available for review, which is important the respondent submits as the MRI, the X-ray and the ultrasound had all been conducted by the time of this examination and the doctor has apparently not looked at them.
The doctor comments on documentation provided to him including the report of A/Prof Miniter and other reports but in the respondent’s submission there is no substitute for looking at the scans themselves.
The doctor notes for the first time a history of a twisting injury to the left knee, which is not consistent with the applicant’s statement. This is a new development that in the respondent’s submission infects the doctor’s opinion going forward. There is no complaint about twisting in any of the other evidence.
Dr Bodel then refers to two pathologies, the first being a degenerative condition aggravated by the event of 26 April 2023.
The second is the frank injury involving a tearing of the medial meniscus on the date of the injury, which had been asymptomatic prior to his injury. The doctor says the main contributing factor was the twisting injury to the left knee while walking down the stairs which caused the tear of the medial meniscus. Again, that is not consistent with the history that has been obtained and reported on elsewhere.
Finally in answer to question 10 on page 21 of the ARD, Dr Bodel replies that it is appropriate for the applicant to proceed with the surgery as indicated. In the respondent’s submission that opinion is not elaborated upon. It would have been helpful if the doctor identified the bases for his opinion but as he does not do so it is a bare ipse dixit conclusion, which stands in stark contrast to A/Prof Miniter’s opinion.
The respondent does not make much of the surveillance material, accepting it shows the applicant has an issue with her left knee which is not in dispute. The dispute is confined as to whether or not that is work related condition. The most that can be said is the footage referred to in the report by Procare is somewhat inconsistent with the level of incapacity in the submitted certificates of capacity.
There is also not a great deal to be made of the letters and emails from the respondent concerning the applicant’s conduct at work, these being the circumstances in which these proceedings eventually developed. The dispute is confined to whether or not the left knee condition is a work-related condition.
A/Prof Miniter in his report of 29 August 2023 obtained the history that the left knee pain started when the applicant was descending stairs coincident on a fire drill, which again does not quite square with the clinical notes.
The doctor says in any event there are investigations relating to the left knee, he’s seen the standing X-ray and the MRI scan at Western Imaging Group that demonstrated advanced medial compartmental osteoarthritic change and there were no other features of acute injury.
It is significant that the doctor has in fact looked at the scans which puts him in a better position than Dr Bodel to assess what was in fact going on with the left knee at the time and in the respondent’s submission bolsters the opinion he ultimately gives in his three reports.
The doctor reports on the overall examination of the applicant was consistent entirely with medial compartment osteoarthritis of the left knee.
He opines that the available evidence would suggest the applicant has constitutional changes to the knee subsequent upon her weight and age. He did not consider that there was any place for surgical treatment at this stage and the appropriate management was non-operative. He did not consider the condition is related to the workplace and he considers that ultimately a knee replacement is likely.
A/Prof Miniter gives the opinion that the applicant’s employment was not the main or substantial contributing factor to her current presentation. If there had been any aggravation caused by the descent of the stairs in the doctor’s opinion it had long since ceased. In addition, there are no findings on the investigations to suggest acute injury.
The question is whether there was an acute injury of the tearing of the meniscus of the left knee and the doctor’s opinion is clearly there was no such acute, frank or personal injury on the relevant day.
A/Prof Miniter’s report of 17 April 2024 is in response to Dr Bodel’s report and the applicant’s statement. The doctor did not consider there to be evidence of a frank injury. The meniscal tear displayed in the investigations was quite clearly longstanding and is not the result of descending stairs during a fire drill on 26 April 2023. He did not think that any of the material provided caused him to change his opinion. The meniscal tear he considered to be part and parcel of the applicant’s severe osteoarthritic disease, which is consistent with his earlier opinion.
The doctor then quite firmly expresses his opinion that arthroscopic treatment is not appropriate management in the circumstances of the current case. He makes a quite emphatic argument against such surgery on the basis that in cases such as the applicant’s, it is usually unsuccessful and can be a factor leading to further degradation of the knee, with precipitous failure of the compartment which is already arthritic.
He addresses the Commission directly and in the respondent’s submission that shows his genuine concern as a medical practitioner that such treatment has poor outcomes. The doctor invites the Commission being a specialist jurisdiction to take into account its awareness of that kind of outcome.
He expresses concern that if the arthroscopy fails the next step is knee replacement surgery bearing in mind the applicant’s age group.
The alternative treatment available is conservative treatment including strength development and weight loss with surgery, not an appropriate treatment.
The respondent submits that the applicant has not discharged the onus of establishing on the balance of probabilities that she suffered an injury as alleged. The history given to the doctors is not consistent with the clinical records and so to the extent that Dr Bodel expresses the opinion that there was a frank injury, it ought to be set aside.
The respondent’s submission is the evidence supports there having been a natural progression of the pre-existing degenerative process. A/Prof Miniter clearly expresses his opinion based on the examination of the actual investigations conducted in relation to the applicant’s left knee. He took an accurate history, he is consistent across his reports and he does not change the version mid report like Dr Bodel.
The submission made is that the proposed surgery is not reasonably necessary. To the extent it may be concluded that there was a compensable injury, then it is not reasonably necessary treatment given there is alternative conservative treatment available including weight loss and exercise.
The cost of the treatment admittedly is not prohibitive, referring to the test in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab). It is expected the treatment would not be effective and would rather have a more deleterious effect leading to a total knee replacement. A/Prof Miniter’s opinion is that the proposed surgery is not appropriate, putting to one side his opinion that it is not for the purposes of any work related injury.

Applicant’s submissions in reply

A/Prof Miniter’s first report refers to the doctor seeing the standing X-rays and also the MRI scans at Western Imaging Group that demonstrate advanced medial compartment osteoarthritic changes. The doctor says there were no features of acute injury.
The MRI dated 26 July 2023 clearly says there is a torn medial meniscus. The applicant is not aware of another MRI so either there is one that is giving him another description, or he has misquoted this one of 26 July 2023 and that effects his whole attitude in the applicant’s submission. With respect to the doctor he is not correct.
The doctor says in his last report that there is no evidence of a frank injury. Having seen
Dr Bodel’s report he says he does agree that there is a meniscal tear but it is not an acute lesion, it is part and parcel of her severe osteoarthritic disease. It is an acute lesion in the applicant’s submission. A/Prof Miniter did not see the tear until he saw Dr Bodel’s report.
There is a diagnosis of a pre-existing condition but there is no diagnosis of a pre-existing medial meniscus tear of the left knee anywhere in the clinical notes. The clinical notes talk about crepitus back in 2022. Bearing in mind the injury occurs on 26 April 2023, on
8 May 2023 there is an opinion there is pain in the left knee and then on 10 May 2023 the general practitioner says he has done an X-ray of the left knee, followed on 20 June 2023 by an ultrasound which refers to the meniscal tear, and then the MRI confirms the tear. The doctor has taken it systematically and dealt with the injury in the proper way.
On the balance of probabilities, the applicant has discharged her onus completely and the treatment that is put forward on the opinion of Dr Bodel and the treating orthopaedic surgeon Dr Thomas is the appropriate treatment.

Respondent’s further submissions

The respondent noted that the Western Imaging Group MRI report does not refer to there being an acute tear, acute as in a short in period of time as opposed to a degenerative one which is what A/Prof Miniter has identified, which is constitutional and longer term. The doctor does not need to refer to a tear as he refers to osteoarthritic change and he views the tear as being part of the osteoarthritic change.

FINDINGS AND REASONS

Did the applicant sustain a left knee injury on 26 April 2023

The applicant bears the onus of proof to establish on the balance of probabilities that she suffered a left knee injury on 26 April 2023. There must be a feeling of actual persuasion or comfortable satisfaction of the existence of the fact that the injury occurred.[15]
[15] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment. Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) reviewed the authorities and confirmed the definition of personal injury is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, or a sudden identifiable pathological change.[16] Whether the worker has suffered a physiological effect will depend on the nature and severity of symptoms.[17]
[16] Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 at [38].
[17] Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 at [40].
Causation must be determined on the facts in each case and requires a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452[18] (Kooragang). In addition to relying on common sense this is determined through a careful analysis of the evidence including a careful analysis of the expert evidence.[19]
[18] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[19] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
The weight of evidence supports the conclusion that the applicant experienced a sudden identifiable pathological change being a medial meniscus tear of her left knee while descending stairs during the fire drill on 26 April 2023.
The applicant describes a click in her knee and difficulty moving it while descending stairs on that date.[20] Her general practitioner records on 8 May 2023 that she had pain at her left knee for a week after a fire drill with painful range of motion.[21]
[20] Page 1 of the ARD.
[21] Page 39 of the ARD.
The symptoms appear severe. The certificate of capacity of 28 June 2023 certifies the applicant as having no capacity for any work from 28 June 2023 to 26 July 2023 as a result of the left knee injury after using stars during a fire drill on 26 April 2023.[22]
[22] Page 64 of the ARD.
While the applicant had some capacity for work between 1 July 2023 and 26 July 2023, the certificate of 15 August 2023 certifies she had no current capacity for any work between
[23] Page 73 of the ARD.
15 August 2023 and 12 September 2023.[23]
Dr Bijoy Thomas, treating specialist, in his report of 19 July 2023 refers to the applicant feeling pain in her left knee while doing a fire drill coming down from level 33 to level 20 on 26 April 2023.[24]
[24] Page 62 of the ARD.
On 10 August 2023 the doctor again refers to the applicant having sustained an injury to her left knee during a fire drill.[25] In his report of 13 September 2023 he refers to the injury in April of that year when seeking approval from the respondent for surgery the subject of this dispute.[26]
[25] Page 61 of the ARD.
[26] Page 25 of the ARD.
Dr Bodel reported on 4 December 2023 that the “investigations show a tear of the medial meniscus in the left knee and some early degenerative change in the medial compartment of the knee”.[27] He says “[t]here does appear however to have been a frank injury involving the medial meniscus”.[28]
[27] Page 20 of the ARD.
[28] Page 20 of the ARD.
The respondent notes Dr Bodel did not view the actual films and scans however the doctor refers to the ultrasound dated 18 June 2023 and the MRI scan report of 26 July 2023 as part of the documentation provided to him.
It is not clear whether viewing the ultrasound and MRI film would have altered Dr Bodel’s opinion that the applicant tore her left medial meniscus on 26 April 2023.
The tear shown on the MRI is not disputed by A/Prof Miniter in his supplementary report of 17 April 2024, although the doctor disputes that a frank injury occurred on that date discussed further below.
The applicant in her statement says “I did not suffer any prior injury to my left knee or hip”.[29] Dr Bodel says that she has been “previously quite well and has had no problems with her knees.”[30]
[29] Page 2 of the ARD.
[30] Page 17 of the ARD.
As the respondent points out this appears to be at odds with the general practitioner’s record on 1 December 2022.
The record made on 1 December 2022 is of pain in the left knee and the reason for the visit is noted as left osteoarthritis of knee. A referral was made for a left knee X-ray. There is no reference to the applicant requiring pain medication. A medical certificate is given for two days from 30 November 2022 to 1 December 2022.[31] It appears no X-ray was obtained prior to the incident of 26 April 2023.
[31] Page 38 of the ARD.
Dr Thomas in his report of 13 September 2023 describes frequent mechanical symptoms like painful clicking and locking of the knee,[32] symptoms not recorded on 1 December 2022.
[32] Page 25 of the ARD.
The clinical records date from 26 November 2021 and make no other reference to left knee symptoms prior to 26 April 2023.
Dr Bodel’s opinion is that the applicant has medial compartment osteoarthritis in addition to the tear of the medial meniscus.
While the applicant’s problem with her left knee recorded as osteoarthritis on
1 December 2022 is inconsistent with the past medical history noted by the doctor that she has had no problems with her knees, the doctor goes on to find that an injury occurred on
26 April 2023 in addition to the osteoarthritis condition. It is not apparent that this inconsistency impacts the doctor’s conclusion that an injury occurred on 26 April 2023.
Any inconsistency between the clinical notes taken on 1 December 2022 and the applicant stating she had no prior injury to the left knee does not in any event preclude her proving she sustained a left knee injury on 26 April 2023.
The medical evidence of Dr Thomas, Dr Bodel and A/Prof Miniter confirms the applicant has a pre-existing osteoarthritic condition of her left knee.
The applicant is able to rely on an injury having occurred on 26 April 2023 despite also having osteoarthritis in her left knee, the two not being mutually exclusive.[33] The fact that the injury may be connected to the applicant’s underlying disease process does not prevent the conclusion that an injury occurred on 26 April 2023.[34]
[33] Zickar v MGH Plastic Industries Pty Ltd [1966] HCA 31.
[34] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77].
Dr Thomas in his report of 19 July 2023, having described the pain experienced by the applicant while coming down the stairs in the fire drill, says she “cannot exactly recall the nature of it even though she was in significant pain.”[35]
[35] Page 62 of the ARD.
On the basis the doctor is referring to the applicant being unable to exactly recall the nature of the injury on that date and not the nature of the pain, the nature of the injury is a matter for medical evidence.
Dr Thomas describes the applicant feeling significant pain in her left knee while coming down from level 33 to level 20 during a fire drill.[36] Dr Bodel refers to the applicant becoming aware of significant pain in her left knee on 26 April 2023 while descending the fire stairs. Both doctors found a tear of the meniscus following investigations.
[36] Page 62 of the ARD.
The history of the injury provided by the applicant in her statement, to her general practitioner, to Dr Thomas, Dr Bodel and A/Prof Miniter is broadly consistent; while descending stairs during the fire drill she felt a click and then pain in her left knee.
Dr Bodel also refers to “the twisting injury to the left knee while walking down the stairs” as causing the tear of the medial meniscus.[37]
[37] Pages 19 and 20 of the ARD.
This is the only reference to the injury being a twisting injury as the respondent notes. The reference to this assumed fact does not however negate the conclusion that a frank injury occurred on that date.
The fact that an injury occurred is supported by the applicant’s evidence, the contemporaneous clinical record and Dr Thomas, the applicant’s treating specialist.
The respondent argues that no injury occurred on 26 April 2023 and that the evidence supports there having been a natural progression of the pre-existing degenerative process.
In A/Prof Miniter’s report of 29 August 2023 he says that in addition to any aggravation of underlying pre-existing or constitutional condition caused on 26 April 2023 that has long since ceased, there are no findings on the investigations to suggest acute injury.[38]
[38] Page 26 of the Reply.
‘Acute injury’ in the respondent’s submission means an injury that has recently occurred.
A/Prof Miniter refers in his supplementary report of 17 April 2024 to having previously provided his methodology.
I understand that methodology to be set out in the doctor’s report of 29 August 2023. In that report the doctor comments that the standing X-rays and the MRI scan at Western Imaging Group demonstrate advanced medial compartment osteoarthritic change with no features of acute injury.
The doctor says there were no signs of acute meniscal pathology on examination and he comments that the available evidence “would suggest that Mrs Taumoepeau has constitutional degenerative changes of the knee subsequent upon her weight and age”.[39]
[39] Page 25 of the Reply.

This opinion is difficult to reconcile with the findings of the ultrasound and particularly the left knee MRI of 26 July 2023 which reported on medial compartment osteoarthritis with torn meniscus, small parameniscal cyst, reactive bony oedema and partial tearing to the MCL.[40] The doctor does not refer to the medial meniscus tear until his supplementary report of
[40] Page 59 of the ARD.
17 April 2024.
A/Prof Miniter agrees in his supplementary report that there is a meniscal tear. His opinion is that this is not an acute lesion and it is part and parcel of the applicant’s severe osteoarthritic disease.[41] In his opinion the meniscal tear is clearly longstanding and is not the result of descending stairs on 26 April 2023.
[41] Page 2 of the AALD.
There is no evidence however to support the opinion that the meniscal tear shown on the MRI of 26 July 2023 is longstanding and part and parcel of the osteoarthritic condition.
I understand it may be difficult to determine from an MRI when a tear occurred in any event and unfortunately as noted by the respondent there are no earlier left knee investigations for comparison.
The applicant’s evidence is that she felt a click and had difficulty moving her left knee on
26 April 2023, supported by the clinical record of 8 May 2023. Dr Bodel describes the tear of the medial meniscus as occurring while the applicant was descending the fire stairs during the fire drill. There is no evidence of an alternative occasion when a medial meniscus tear may have occurred.
A/Prof Miniter’s reasoning in forming the opinion that the meniscal tear is longstanding and part and parcel of the osteoarthritic condition is not fully explained. It is also inconsistent with the evidence of the severity of the applicant’s symptoms and the ongoing treatment she is receiving following the incident of 26 April 2023.
I prefer the opinions expressed by Dr Thomas and Dr Bodel to that of A/Prof Miniter as in my view the basis of the opinion that the medial meniscus tear is longstanding and is part and parcel of her constitutional degenerative changes is not supported by the balance of the evidence.
While acknowledging the issues discussed above, the weight of evidence is that a physiological change took place on 26 April 2023 and the nature and severity of the symptoms that followed lend support to that conclusion.
On the basis of a commonsense evaluation of the causal chain,[42] I am persuaded on the balance of probabilities that the applicant sustained a left knee injury on 26 April 2023.
[42] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
There is no compensation payable under s 4(a) of the 1987 Act unless employment is a “substantial contributing factor” to the injury in accordance with s 9A of the 1987 Act. The phrase “substantial contributing factor” involves a causal connection between the employment concerned and the injury, a connection which must be “real and of substance”.[43]
[43] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 at [80]-[82].
Section 9A(2) of the 1987 Act includes examples of the matters that may be taken into account such as the time and place of the injury, the probability the injury or a similar injury would have happened anyway if the applicant had not been at work, and her state of health before the injury.
The injury occurred while the applicant was at work on 26 April 2023. There is no evidence that the injury would have happened anyway if the applicant had not been at work. Although she had complained of left knee pain in December 2022 she had returned to work after two days and continued to work for five or six months without further consultations with her general practitioner or treatment until the date of the incident.
Dr Bodel’s opinion is that the events that lead to the injury on 26 April 2023 are a substantial contributing factor to the left knee injury.[44]
[44] Page 23 of the ARD.
A/Prof Miniter’s opinion is that the applicant’s employment was not the main or substantial contributing factor to her current presentation, being the degenerative change affecting her left knee.[45]
[45] Pages 25 and 26 of the Reply.
Having found that the applicant did sustain a left knee injury on 26 April 2023, the evidence supports the conclusion that the applicant’s employment with the respondent was a substantial contributing factor to the left knee injury.

Is the proposed left knee surgery reasonably necessary as a result of injury

Dr Thomas, treating specialist, proposes the applicant undergo arthroscopy and meniscal debridement of the left knee.
If, as a result of an injury received by a worker, it is reasonably necessary that any medical or related or hospital treatment be given, the worker’s employer is liable to pay the cost of that treatment in addition to any other compensation under the Act; s 60(1) of the 1987 Act.
The first consideration in s 60(1) of the 1987 Act is whether the proposed treatment is “as a result of an injury received by a worker”.
Roche DP in Murphy v Allity Management Services Pty Ltd held that an injured worker has to establish, applying the commonsense test in Kooragang, that the treatment is reasonably necessary as a result of the injury, that is, that the injury materially contributed to the need for surgery.[46]
[46] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [58].
Dr Thomas proposes the surgery to deal with the applicant’s mechanical symptoms like painful clicking and locking of the knee. The doctor refers to the conservative treatment since the injury in April that year. He comments that while she has a meniscal tear along with some degenerative changes, the pre-existing degenerative changes will not be affected by the arthroscopy.[47]
[47] Page 25 of the ARD.
In Dr Bodel’s opinion the proposed surgery if done carefully is appropriate for the management of the tear of the meniscus caused by the accident.[48]
[48] Page 21 of the ARD.
A/Prof Miniter’s opinion is that the applicant did not sustain a left knee injury on 26 April 2023 and she does not require a knee arthroscopy whether she has a work related injury or not.[49]
[49] Page 2 of the AALD.
Having found the applicant sustained a left knee injury on 26 April 2023, I find on the basis of the evidence that the injury has materially contributed to the need for the arthroscopic surgery.
The second consideration in s 60(1) of the 1987 Act is whether the proposed treatment is “reasonably necessary”.
The relevant legal principles in considering whether proposed treatment is reasonably necessary were discussed by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2 and by Roche DP in Diab.[50] Relevant matters according to the criteria of reasonableness noted in Rose and set out in Diab 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.
[50] Diab v NRMA Insurance Ltd [2014] NSWWCCPD 72 at [88].
Dr Thomas advised the applicant in August of last year that given she had started getting mechanical symptoms, if these failed to improve an arthroscopy of the knee may be required to deal with mechanical symptoms caused by the meniscus.[51]
[51] Page 61 of the ARD.
In September 2023 the doctor reported that conservative management since April that year including a cortisone injection had failed to alleviate symptoms like painful clicking and locking. He advised the applicant that she would benefit from an arthroscopy to deal with mechanical symptoms and that the pre-existing degenerative changes will not be affected by the arthroscopy.[52]
[52] Page 25 of the ARD.
Dr Bodel agrees with Dr Thomas. He says:
“I am aware in the literature that there are matters which suggest that this should be done with caution in a person of this age and I do agree with that, but the clamant has mechanical symptoms in the knee. The carefully done arthroscopy may help and I think it unlikely that it will make the symptoms progress any quicker. It may put off the inevitable total knee replacement by a further three to five years which would be a good outcome.”[53]
[53] Page 19 of the ARD.
When asked for his opinion on whether the proposed surgery is reasonably necessary Dr Bodel responded:
“[a]s long as done carefully, the surgery as proposed is appropriate for the management of the tear of the meniscus. The recommended treatment is reasonably necessary for the management of the injury which was caused by the accident….and therefore it is appropriate for him to proceed with the surgery as indicated.”[54]
[54] Page 21 of the ARD.
The respondent views Dr Bodel’s opinion that the proposed surgery is reasonably necessary as not having been elaborated on, and in the absence of identifying the bases for his opinion it is a bare ipse dixit conclusion.
Dr Bodel sets out the facts on which he relies including the history provided by the applicant, information from the investigations of her left knee, the opinion of the treating specialist
[55] Australian Security and Investments Commission vRich [2005] NSWCA 152 at [170].
[56] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
[57] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
Dr Thomas and his examination of the applicant. Dr Bodel draws on his entire body of experience fundamental to his professionalism[55] and he is not required to “offer chapter and verse in support of every opinion.”[56] I am satisfied however that the doctor has set out the basis for his opinion that the proposed surgery is reasonably necessary.[57]
A/Prof Miniter strongly views the proposed surgery as not appropriate. He says the applicant “simply has advanced osteoarthritis, and I am surprised that the surgeon has recommended arthroscopic surgery, which in a woman of her age with such severe arthritic changes is most unlikely to result in a positive outcome.”[58]
[58] Page 2 of the AALD.
Arthroscopic surgery in A/Prof Miniter’s view “can very much make matters such as this worse, and if that happens, the next step is a knee replacement. She is a poor candidate for any type of surgical treatment.”[59]
[59] Page 3 of the AALD.
The potential effectiveness of the proposed surgery is limited to alleviating the mechanical symptoms and managing the tear of the meniscus.[60] Dr Bodel‘s view is that “[s]urgery may help improve function, but I strongly suspect that this will inevitably lead to a total knee replacement within the next five to seven years.”[61]
[60] Page 21 of the ARD.
[61] Page 24 of the ARD.
I prefer the opinion of Dr Thomas as the treating specialist who has reviewed the applicant’s condition on several occasions, and whose opinion is supported by Dr Bodel.
A/Prof Miniter referred to the alternative treatment available to the applicant in August of last year as a strengthening programme combined with some water-based therapy if necessary.[62] In April this year the doctor says “she has much room to move in relation to her physical strength and weight loss.”[63]
[62] Page 25 of the Reply.
[63] Page 3 of the AALD.
It is now over a year since the injury occurred. The applicant has had conservative treatment including pain medication, anti-inflammatory medication, physiotherapy, she has worn tape and a brace on her knee and she has had a cortisone injection that Dr Thomas found failed to alleviate her symptoms. Surgery is now recommended by her treating specialist.
The respondent concedes the cost of the proposed surgery is not prohibitive.
On the question of whether the proposed surgery is accepted by the medical profession,
Dr Thomas and Dr Bodel are of the opinion that it is reasonably necessary and A/Prof Miniter expresses a strong contrary view.
It is her treating specialist Dr Thomas who has reviewed and investigated the applicant’s left knee injury and who proposes the arthroscopic surgery.
Dr Bodel says he is aware in the literature there are matters which suggest that this should be done with caution in a person of the applicant’s age, with which he agrees.
The doctor’s opinion however is that the carefully done arthroscopy may help, “and I think it unlikely that it will make the symptoms progress any quicker. It may put off the inevitable total knee replacement by a further three to five years which would be a good outcome.”[64]
[64] Page 19 of the ARD.
Taking into account all of the evidence and having considered the criteria in Rose and Diab I find that the surgery proposed by Dr Thomas is reasonably necessary medical treatment for the applicant’s left knee injury of 26 April 2023 pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant suffered an injury to her left knee in the course of her employment on
26 April 2023.
The surgery proposed by Dr Thomas is reasonably necessary medical treatment within the meaning of s 60 of the 1987 Act.
There will be an award for the applicant pursuant to s 60 of the 1987 Act for payment of the proposed medical, hospital and related treatment expenses at the gazetted rates.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 322

19 June 2024