Taylor v Ongmac Trading Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taylor v Ongmac Trading Pty Limited [2022] NSWPIC 42
APPLICANT:	Heath Taylor
RESPONDENT:	Ongmac Trading Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	3 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for a declaration pursuant to section 60 (5) of the Workers Compensation Act 1987 that a proposed right knee arthroscopy was reasonably necessary; applicant, having undergone a right knee arthroscopy on 2 July 2020, went to a hotel after attending his physiotherapist on 28 July 2020; his foot got caught in a rail, resulting in a twisting injury to his knee which caused a fresh tear to his medial meniscus, to a separate part of the medial meniscus to that which had been operated on earlier; whether the earlier work related knee injury materially contributed to the applicant's current condition; whether the applicant had fully recovered from his earlier arthroscopy; whether the mechanism of injury was such to have caused the fresh tear of itself; Held - contemporaneous material established that the applicant had not fully recovered; respondent's experts’ opinion that the mechanics of the injury sufficient to cause the fresh tear speculative and rejected; evidence of applicant's expert of high incidence of re-tearing following partial meniscectomies accepted by respondent's expert; Kumar v Royal Comfort Bedding Pty Ltd, Secretary, NSW Department of Education v Johnson , Ozcan v MacArthur Disability Services Ltd and Bouchmouni v Bakhos Matta trading as Western Red Services applied; award applicant.
DETERMINATIONS MADE:	1. The respondent will pay the cost of and associated with the proposed right knee arthroscopy proposed by Dr Prodger in his report of 8 September 2020.

STATEMENT OF REASONS

BACKGROUND

Heath Taylor, the applicant, brings an action against Ongmac Trading Pty Limited, the respondent, for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (1987 Act) that the proposed surgery, being a right knee arthroscopy, is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the need for the proposed surgery causally related to the subject injury?

PROCEDURE BEFORE THE COMMISSION

The matter was heard in a teleconference arbitration on 1 December 2021. The applicant was represented by Mr Simon Hunt of counsel instructed by Ms Melanie Lomes from Messrs Somerville Laundry Lomax. The respondent was represented by Mr Dewashish Adhikary of counsel instructed by Ms Shannon Watts from SMK Lawyers. 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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (ALD) from the respondent.

Oral evidence

No application was made in respect of oral evidence.

FINDINGS AND REASONS

It is common ground that in early 2019 the applicant suffered injury to his right knee being a large tear of the posterior horn of the right medial meniscus and associated Baker’s cyst. The dates of the injury have been variously given as 27 March or 10 April 2019. Nothing turns on these discrepancies.
Liability for that injury was accepted by the respondent and Mr Taylor came to arthroscopic surgery on 2 July 2020 under the care of Dr Shane Prodger, orthopaedic surgeon.
Mr Taylor returned on light duties on 24 July 2020 and on 28 July 2020 attended his physiotherapist in Lismore. Following his physiotherapy session, Mr Taylor went to the Station Hotel in South Lismore. In his statement dated 13 October 2021 Mr Taylor said[1]:
“I bought a beer and put it on the window sill opposite the main bar so I could go outside. As I went to walk outside, my right foot got caught on a foot rail beneath the window at which time my right leg twisted. I suffered a right knee injury as a result.”
[1] ARD p 2 at [26].
Mr Taylor outlined the history of the accepted injury of early 2019 and the subsequent right knee arthroscopy with Dr Prodger at St Vincents Hospital in Lismore on 2 July 2020.
In his statement Mr Taylor said:[2]
“25. Following surgery I had around 3 weeks off work. On or around 24 July 2020 I returned on light duties. I hadn't fully recovered from surgery as I was still experiencing some swelling and restriction of movement in my right knee.”
[2] ARD p 2 at [25].
An MRI was carried out on 18 August 2020 which demonstrated a large tear in the previously undamaged portion of the medial meniscus. This action has been brought because Dr Prodger has recommended that a right knee arthroscopy be performed as a result of the 28 July 2020 incident.
There is no dispute that the subject arthroscopy is reasonably necessary. The issue for determination is whether there is a causal link between the need for the recommended arthroscopy and the original injury of early 2019.

Clinical notes

The clinical notes of Dr Louise Wagner, Mr Taylor’s (general practitioner (GP)), were lodged and on 24 July 2020 showed that Mr Taylor attended via telehealth. Dr Wagner reported that the arthroscopy had occurred three weeks earlier.
The entry said[3]:
“R knee still has a bit of fluid
- can take up to 6 weeks to settle
has been given some stretches
ride on mechanic
small engine mechanic
needs to be careful”
[3] ARD p 53.
Mr Taylor next attended following the incident on 14 August 2020. The entry said[4]:
[4] ARD p 54.
“6 weeks post-op
went and had a beer at the pub
3/52 ago re-twisted his knee
flexibility was back
Dr Prodger was happy
has re-aggravated it…”

Physiotherapist Mr Troy Eady

Mr Eady was the physiotherapist that Mr Taylor travelled to Lismore to see on 28 July 2020, and from his appointment Mr Taylor was on his way home when he stopped in at the Station Hotel.
Mr Eady’s clinical notes demonstrated that Mr Taylor had been under Mr Eady’s care since 23 April 2019. The entry of 28 July 2020 indicated that knee surgery had occurred some four weeks before. The history “now feels good and has just RTW” was entered as Mr Taylor’s subjective view. Objectively, Mr Eady noted:[5]
“Knee – general deconditioning, decreased proprioception”
[5] ARD p 169.
Mr Eady’s assessment was that Mr Taylor should commence a home rehabilitation program for knee stability.

Dr Shane Prodger

As noted, Dr Shane Prodger was the orthopaedic surgeon who had the management and treatment of the injured knee. A report dated 16 July 2020 was lodged amongst his clinical notes.[6] Dr Prodger noted that Mr Taylor’s pre-operative symptoms, being the medial mechanical knee symptoms, had largely resolved but that there was a moderate effusion. Dr Prodger recommended a return to light duties for about two to three weeks with a lifting restriction of five kilograms. After that period Mr Taylor Dr Prodger said that Mr Taylor should be fit to return to normal duties. Dr Prodger also gave Mr Taylor a referral to start physiotherapy “for the next few weeks.”
[6] ARD p 145.
Dr Prodger supplied a further report dated 8 September 2020 and noted that he had seen Mr Taylor on 16 July 2020 following the arthroscopy of the bucket handle tear of the medial meniscus from “which he was recovering well”. He recorded that Mr Taylor said he had made a good recovery and had returned to normal duties after three weeks.[7]
[7] ARD p 20.
Dr Prodger took a consistent history of the incident at the Station Hotel, detailing that Mr Taylor had caught his right foot in a rail at floor level adjacent to the door and felt immediate medial right knee pain. The history taken was that Mr Taylor stumbled but did not fall.
Dr Prodger noted that the current symptoms were very similar to his pre-operative condition.
The repeat MRI scan of 18 August 2020 showed a large tear in the remnant of the body and posterior horn of the medial meniscus, which Dr Prodger noted had not been present at the time of the arthroscopy. Dr Prodger then recommended the subject surgery, saying:
“I am not sure how the series of events as outlined above will play out with his WorkCover insurer given he was not actually at work and had finished his physio appointment.”

Dr Simon Kinny

The respondent obtained an opinion from Dr Simon Kinny, orthopaedic surgeon, dated 30 December 2020[8]. Dr Kinny noted Mr Taylor’s original injury and the arthroscopy of 2 July 2020, which showed a large bucket handle tear of the medial meniscus with a displaced fragment. Dr Kinney took a history that after three weeks off work to recuperate, Mr Taylor returned to work for one week prior to the incident on light duties.
[8] Reply p 29.
The history taken by Dr Kinny was that the injury occurred whilst Mr Taylor was entering the Hotel when he tripped over a rail at floor level adjacent to the door of the premises. He recorded that Mr Taylor thought that there had previously been a bar set up in the area with stools, and the rail was there for people to rest their feet on. However, when the bar and stools were removed, the rail was unfortunately left in situ.
Dr Kinny noted that Mr Taylor had been anticipating an upgrade to full pre-injury duties because his knee had by then been feeling “back to normal” and that his post-operative swelling had fully settled.
Dr Kinny had available the repeat MRI scan and advised that it showed a large horizontal tear of the body and posterior horn of the medial meniscus, which had not been present at the time of the arthroscopy of 2 July 2020.
In his opinion Dr Kinny advised:[9]
“….[Mr Taylor] has again sustained a further medial meniscal tear of the remnant portion of the meniscus. Again he has the typical mechanical symptoms of a traumatic tear of the medial meniscus.”
[9] Reply p 32.
Dr Kinny agreed that the surgery was necessary but then advised that it was not a work related injury. Dr Kinny said:[10]
“The current diagnosis for Mr Taylor is a recurrent tear of the medial meniscus of his right knee, following an unrelated new injury event. It is obvious that the arthroscopic treatment performed on 2 July 2020 adequately resolved the damage done in the original workplace injury of April 2019, but that the subsequent injury event caused a fresh injury to the remnant portion of the meniscus. Therefore the current diagnosis of a torn medial meniscus is related to the incident in a public place which occurred on 28 July 2020, and is not in my opinion related to the original work-place injury and its operative sequelae.
…. Everything was on track for a very good long-term result, and a rapid return to full pre-injury work duties, when unfortunately Mr Taylor re-injured his knee, in an incident in a public place (a pub) away from the workplace. He has again sustained a further medial meniscal tear of the remnant portion of the meniscus. Again he has the typical mechanical symptoms of a traumatic tear of the medial meniscus…. I fully agree however that this is not a work-related injury…”
[10] Reply p 32.
When asked if the new mechanism of injury that caused the present tear was consistent with the initial bucket handle tear, Dr Kinny said that the new mechanism caused a medial meniscus tear. He said:[11]
“…This diagnosis is entirely consistent with the claimant having had a portion of the medial meniscus previously resected approximately one month earlier. The mechanism of injury is highly likely to have caused such a recurrent injury.”
[11] Reply p 33.
Dr Kinny advised that the original injury had “effectively resolved” when Mr Taylor suffered his second injury on 28 July 2020. He relied on statements made by Mr Taylor that he felt that his knee was back to normal and had finished physiotherapy. He said[12]:
“I believe that the current symptoms Mr Taylor experiences are entirely related to the incident of 28 July 2020, and not at all to the incident of 10 April 2019.”
[12] Reply p 33.
He thought that Mr Taylor would have long since recovered but for the injury of 28 July 2020. He said:[13]
“Dr Prodger is correct in that Mr Taylor has indeed suffered a repeat injury to his right knee. However the liability for same rests with the premises on which the subsequent injury occurred, and not with the workplace….. This is now a Public Liability claim, and no longer a WorkCover claim.”
[13] Reply p 33.

Dr Geoffrey Miller

Dr Geoffrey Miller, specialist surgeon, was retained by the applicant as his medico-legal expert. On 15 June 2021 Dr Miller took a history consistent with Mr Taylor’s original injury, his subsequent arthroscopy and the visit to Lismore for a session of physiotherapy on 28 July 2020. He recorded the history of the incident at the Station Hotel:[14]
“He stated that after he had purchased a beverage he placed his beverage on a window ledge and attempted to tum around. He said he caught his right foot in a gap between the foot rail and the wall. This was at floor level. He twisted his right knee and again developed a painful right knee.”
[14] ARD p 25.
Dr Miller reviewed the MRI report of 13 May 2020, noting that it revealed relevantly a large horizontal tear of the body and posterior horn of the medial meniscus, involving the undersurface and extending into the root of the posterior horn.
Dr Miller then viewed the post injury MRI scan of 18 August 2020, noting the findings of
“..An extensive complex tear over the body and posterior horn of the medical meniscus. The horizontal component involves the body and posterior horn involving the inferior articular surface. The vertical component involves the peripheral portion of the posterior horn involving both articular surfaces…. Displaced meniscal tissue is perched at the superior aspect of the root of the posterior horn of the medial meniscus. This measures approximately 10 m (sic – 10mm) in transverse diameter.”
Dr Miller was asked as to whether the original work incident caused an ongoing susceptibility to future injury. Dr Miller said:[15]
[15] ARD p 28.
“As a result of Mr Taylor's first injury circa late March 2019, he more probably than not sustained a tear to his right medial meniscus.
….
The pathology was confirmed on MRI and subsequent arthroscopy by Dr Shane Prodger on the 2nd of July 2020.
The torn portion of his medial meniscus was resected and Dr Prodger reported that his condition was resolving on the 16th of July 2020 …

Mr Taylor stated that he attended a post-operative physiotherapy appointment on the 28th of July 2020. He stated that he stopped at The Station Hotel for a drink on his way home.
When he was leaving the hotel he got his right foot caught in a rail at floor level adjacent to the door and felt immediate pain in his right knee.
He described the injury as a twisting injury.
There is a high incidence of subsequent tearing of the medial meniscus after partial meniscectomy (8%).

There is a significant incidence of reoperation after partial medial meniscectomy (16%).

It has been shown that the reason for recurrence of medial meniscus tears is due to higher biomechanical load on the medial aspect of the knee joint and the fact that the medial meniscus is less mobile than the lateral meniscus.

The mechanism of injury of the tear is thought to be due to rotational instability.
The description of Mr Taylor's second injury on the 28th of July 2020 indicates the major mechanism of injury to his right knee was a twisting action consistent with rotational instability.

It is therefore my opinion that the original work incident in or around late March 2019 caused an ongoing susceptibility to further injury.

It is my opinion that the subsequent incident has more likely than not given rise to the further tear in the event that the original injury had not occurred.”

Dr Kinny’s response

The respondent obtained a supplementary report from Dr Kinny following Dr Miller’s advice. It was dated 9 November 2021.[16]
[16] ALD p 1.
Dr Kinny was asked:
“1.1 Do you consider the twisting action causing injury in July 2020 was consistent with rotational instability or some other mechanism?”
Dr Kinny replied that he considered the injury of 28 July 2020 was caused by a rotational event. The major mechanism of injury was due to the twisting action when Mr Taylor’s right foot caught in the rail as it turned. Dr Kinny said:[17]
“However, there is no evidence that I can find that Mr Taylor was left, after his initial arthroscopy with ‘rotational instability’ of his knee. I am [in] full agreement that there is a high incidence of subsequent tearing of the medial meniscus after partial meniscectomy, and that there is a significant instance of re-operation after partial medial meniscectomy, as Dr Miller carefully points out in supplied medical literature.
Dr Miller confirms that the second injury was as a result of a twisting action. Whether or not the original work incident caused an ongoing susceptibility to further injury is perhaps something for debate.”
[17] ALD p 2.
Dr Kinny however restated his opinion that even if there had been such a susceptibility, Mr Taylor would not have sustained a further injury to the medial meniscus of his knee had it not been for the incident at the Station Hotel on 28 July 2020, which Dr Kinny noted was some 15 months after the work-related injury.. Dr Kinny said:[18]
“It is my understanding that should a claimant have a susceptibility to further injury, that does not make the original workplace incident responsible for any subsequent injury, but that rather the subsequent injury itself is what is the substantial contributing cause.”
[18] ALD p 2.
Dr Kinny had advised that if Mr Taylor had not caught his foot that he would not have sustained this further meniscal injury. Dr Kinny observed that the later incident “clearly occurred away from the work place some considerable time after the workplace injury”.
Dr Kinny agreed that further arthroscopic management was needed but he said that it was “not as a direct consequent of the original workplace injury but it is rather due to the subsequent event.”
Dr Kinny was asked further to address the question of ongoing susceptibility following the first injury. He accepted that the original injury may have caused ongoing susceptibility for further injury. He said:[19]
“However, anybody who has undergone meniscal surgery has an ongoing susceptibility to further injury throughout their lives, which would make it a substantial proportion of the population. However, most do not require further surgery, and most do not sustain further injury, because further incidents do not occur.”
[19] ALD p 2.
Dr Kinny stated:[20]
[20] ALD p 3.
“I consider that the further tear would not have necessarily arisen as a result of the original injury, but for the second injury occurring. Even if the first injury had not occurred, and Mr Taylor had not undergone previous medial meniscal partial resection, the second injury alone could have been sufficient to result in the subsequent meniscal tear.

Essentially what is being asked of me is whether I consider that more responsibility should be ascribed to the original injury for the patient to have suffered his subsequent injury, or whether more responsibility should be ascribed to the second traumatic event. It is my opinion that more responsibility should be ascribed to the second traumatic event, rather than the original injury. That is the thread of my opinion as outlined in my original report, and I see no reason to change it, based onthe report of Dr Miller.”

SUBMISSIONS

Mr Adhikary

Mr Adhikary submitted that the onus lay on the applicant to establish that the condition of the applicant’s knee following the incident on 28 July 2020 was causally related to the accepted work injury of 27 March 2019. The question for determination was one of fact which was to be based on the evidence before me.
Mr Adhikary referred to Munce v Thomson Coolrooms Pty Ltd.[21] He said uncontroversially that the causal relationship must be established on the balance of probabilities from evidence in an acceptable form.
[21] [2017] NSWWCCPD 39 at [101].
Mr Adhikary submitted that the clinical notes of Dr Wagner indicated that the nature of the injury of 28 July 2020 was a new injury and not consequential. He submitted that the entry demonstrated that prior to 28 July 2020 flexibility was back in Mr Taylor’s knee, Dr Prodger was happy with progress but that Mr Taylor had re-aggravated it. Mr Adhikary submitted that it was common ground that the present condition of Mr Taylor’s knee was as a result of a rotational injury when Mr Taylor’s foot caught on the rail.
He also submitted that Dr Prodger also indicated that Mr Taylor had recovered. Dr Prodger noted that after three weeks following the arthroscopy Mr Taylor had returned to his normal duties.
Mr Adhikary referred to Dr Kinny’s first report of 20 December 2020, in which Dr Kinny said that prior to the incident of 28 July 2020 Mr Taylor felt that his knee was back to normal, he was anticipating an upgrade to full duties and he no longer had any swelling.
Mr Adhikary submitted that these matters were consistent and indicated that Dr Kinny’s opinion that the incident on 28 July 2020 should be classed as a separate injury should be accepted. Dr Kinny opined that the injury was to the remnant part of the meniscus that had not been involved in the surgery of 2 July 2020, and that the injury was consequently not work related.
The second report of Dr Kinny, Mr Adhikary submitted, was in response to the opinion of Dr Miller. Dr Kinny pointed out that there was no evidence of any rotational instability in Mr Taylor’s knee following the arthroscopy of 2 July 2020. Mr Adhikary conceded that Dr Kinny acknowledged that a medial meniscectomy does create a susceptibility to further injury and that whether or not the original work incident had caused such a susceptibility was open for debate. However Mr Adhikary said that Dr Kinny’s reports should be read as a whole, and Dr Kinny’s first report was clear that there was no work-related injury at all, so that the question regarding susceptibility became irrelevant.
In a discussion about the nature of the meniscus, Mr Adhikary submitted that Dr Kinny did explain why he thought the question of susceptibility was not relevant to Mr Taylor’s situation. The respondent’s position, Mr Adhikary said, was that the susceptibility played no part in the occurrence of the injury of 28 July 2020. The sole cause had been that Mr Taylor had trapped his foot against the rail in the twisting motion was responsible for the meniscal tear.
Mr Adhikary referred to the report of Dr Miller, whose opinion could be distinguished because Dr Miller found that Mr Taylor did have rotational instability as a result of his arthroscopy on 2 July 2020 , and Dr Miller advised that the susceptibility of a person who had undergone a meniscal repair was also a relevant factor. Mr Adhikary said that the statistics relied on in that report were not relevant in view of the mechanics of the subject injury. He submitted that there was no fair climate to accept Dr Miller’s opinion.
In a further discussion Mr Adhikary submitted that it was not possible for a rotational type injury as was suffered by Mr Taylor on 28 July 2020 to also be caused by any pre-existing weakness in the knee. The susceptibility that both Dr Miller and Dr Kinny agreed would follow a meniscal repair was not relevant, Mr Adhikary argued. He referred to Dr Kinny’s explanation that not everybody who was susceptible following a medial meniscal repair suffered a further injury, because further incidents did not always occur.
With regard to Dr Miller’s report, Mr Adhikary contended that Dr Miller took a consistent history of the mechanism of Mr Taylor’s twisting injury and in the light of those facts I would not accept the statistics relied on by Dr Miller, as he did not explain how they were relevant to this case. Moreover, Dr Miller’s assumption that Mr Taylor had a rotational instability following the arthroscopy of 2 July 2020 had not been established on the evidence. The opinion that it was more likely than not that the subject injury would have occurred because of the susceptibility caused by the arthroscopy could not be accepted, Mr Adhikary said.
Mr Adhikary was referred to the three categories of liability discussed in Secretary, Department of Education v Johnson.[22] Mr Adhikary agreed that Dr Kinny’s opinion would support a finding that the first category was not applicable as the subject injury was not caused by any involvement of the original injury – it was caused by an independent act when Mr Taylor caught his foot against the rail. The second category Mr Adhikary agreed was also not applicable, as Dr Kinny advised that there was no element of the aggravation of the earlier injury when Mr Taylor twisted his right knee. Mr Adhikary agreed that the third category was appropriate to this case – namely that there was no connection between the subject incident and Mr Taylor’s earlier injury.
[22] [2019] NSWCA 321 (Johnson).

Mr Hunt

Mr Hunt submitted that it was an error to assume that the right knee had made a full recovery as at the date of the second injury in the Station Hotel. He referred to Dr Prodger’s report of 16 July 2020, prior to the subject injury, when Mr Taylor was given a referral to start physiotherapy for the next few weeks, a recommendation to commence light duties for around two to three weeks.
Mr Hunt indicated that the notes of Mr Eady demonstrated that Mr Taylor was still having some difficulty with his knee on 28 July 2020.
Dr Prodger had the benefit of seeing Mr Taylor’s knee at arthroscopy , and there was no real dispute, Mr Hunt contended, that the pathology following the subject incident revealed a new complex tear to his medial meniscus, described as an “acute injury.” Dr Prodger’s involvement did not assist regarding causation, Mr Hunt said, and he referred to the opinion of Dr Miller in that regard.
Mr Hunt relied on Dr Miller’s explanation that recurrence of medial meniscus tears was due to the higher biomechanical load on the medial aspect of the knee joint, and the fact that the medial meniscus was not as mobile as the lateral meniscus .
Mr Hunt submitted that Dr Kinny’s first report was concerned with whether employment had been a substantial contributing factor in the injury of 28 July 2020 at the Station Hotel. Dr Kinny did not consider the question of susceptibility to further injury caused by the medial meniscectomy, neither did he consider the question of Mr Taylor’s injury being consequential to the meniscectomy.
Mr Hunt submitted that the second report of Dr Kinny dated 9 November 2021 had the same short coming in that Dr Kinny was trying to identify the substantial contributing cause to the subject incident. What Dr Kinny did not do was to adequately consider the susceptibility caused by the meniscectomy when faced with the rotational stressors involved in the subject incident.
Mr Hunt submitted that Dr Kinny’s logic when dismissing the question of whether the applicant’s knee was susceptible to further injury was unhelpful, and in any event Dr Kinny “left the door open” by saying that the further tear would not have “necessarily” arisen as a result of the original injury.
Dr Kinny did not consider, Mr Hunt said, the causal nexus on the basis of the usual approach an applicant’s onus of proof that set out in Kooragang Cement Pty Ltd V Bates.[23] Dr Kinny’s reasons did not engage with a commonsense evaluation of the causal chain.
[23] (1994) 35 NSWLR 452.
Mr Hunt submitted that the Oakley test in paragraph 2 applied and also suggested that I could find that the paragraph 1 test also applies.

DISCUSSION

Mr Taylor seeks a declaration that he is entitled to payment from the respondent for a proposed right knee arthroscopy as a result of his mishap at the Station Hotel on 28 July 2020. It has not been alleged that Mr Taylor has suffered an injury as defined in the Workers Compensation legislation, but rather that the need for the claimed treatment arises as a consequence of his earlier admitted workplace injury of 10 April 2019, in which the same knee was injured. Treatment for that injury was delayed until 2 July 2020, when Mr Taylor underwent a repair of a tear to his medial meniscus.
The legal principles applicable to this situation are settled. If the original injury materially contributed to the need for surgery, then the respondent will be liable. [24] There is no difference between the legal view of causation in tort and causation in the field of workers compensation, except that the question of foreseeability does not arise. [25]
[24]Murphy v Allity management Services Pty Ltd [2015] NSWWCCPD 49 per DP Roche from [57].
[25] Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 per Emmett AJA (McFarlan JA and Simpson AJA agreeing).
In Johnson Simpson AJA held that the three categories relating to causation identified
by Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley); were equally applicable to the assessment of the degree of permanent impairment resulting from injury under the Workers Compensation legislation. The three categories were:[26]
“(1)    where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2)     where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3)     where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.”
[26] Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 at [126].
A consequential condition is one that, applying a commonsense evaluation of the causal chain, has resulted from an earlier injury. It is not an “injury“ as defined by the workers compensation legislation.[27]
[27] Kumar v Royal Comfort Bedding Pty Ltd. [2012] NSW WCCPD 8 per DP Roche from [36]; see also Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSW WCCPD 4.
In the light of these authorities, it became incumbent on the applicant to establish that the injury of early 2019 materially contributed to the condition of his knee following the subject incident. Dr Kinny, as indicated, stated that the current symptoms experienced by Mr Taylor following the incident of 28 July 2020 were not related at all to the incident of early 2019. Whilst technically correct, the real question is whether Mr Taylor’s current symptoms were related to the operative treatment he underwent for the early 2019 injury, which did not occur until 2 July 2020.
I found Dr Kinny’s first report to be unhelpful. His opinion that the respondent was not liable was based on, with respect, a limited knowledge of the laws of causation. His opinion was that, because the subject incident occurred in a public place, liability rested on the hotel as a Public Liability claim and was no longer a WorkCover matter. As has be seen, the law regarding compensation is not that simple.
Dr Kinny did make a distinction between the two pathologies caused by each incident. He said that the subject incident caused a fresh tear to the remnant portion of the meniscus, that being the part of the meniscus that had not been repaired on 2 July 2020. I did not understand Dr Kinny to propound a theory that the separate tear was in itself the basis for his opinion that this was not a WorkCover matter. However, if that was his intention, I reject that theory. This is not a case such as Department of Justice v Edmed,[28] where an examination of the two pathologies was necessary to establish whether they were “the same injury” for the purposes of theWorkplace Injury Management and Workers Compensation Act 1998 (1998 Act). In any event, the authority of Edmed has been questioned by the Court of Appeal in Ozcan v MacArthur Disability Services Ltd, as the issue of material contribution was not argued in Edmed.[29]
[28] [2008] NSWWCCPD 6 (Edmed).
[29] [2021] NSWCA 56 at [22].
In his first report, Dr Kinny also found as a fact that Mr Taylor’s work related injury had “adequately resolved” as Mr Taylor advised that he was anticipating an upgrade to full duties, his knee had been feeling “back to normal”, and his post-operative swelling had “fully settled.”
That history was taken on 30 December 2020 and the contemporaneous evidence does not support the assumptions made as to the resolution of the work-related injury. Dr Prodger reported on 16 July 2020 that Mr Taylor had not then commenced light duties, which were expected to commence for two to three weeks. Dr Prodger also referred Mr Taylor for physiotherapy.
The following week, on 24 July 2020 Mr Taylor was seen by his GP, Dr Wagner, who noted that the knee still had “a bit of fluid in it” and that it could take up to six weeks to settle. Her comment that Mr Taylor “needs to be careful” proved to be prophetic.
Four days later Mr Taylor went to Lismore for the purpose of undergoing physiotherapy for treatment to his right knee.
The respondent relied on an entry in Dr Wagner’s notes of 14 August 2020 – over two weeks following the subject incident – as support for Dr Kinny’s finding. The entry was obviously an ex post facto entry, in that it noted that whilst flexibility had been back and that Dr Prodger had been happy, Mr Taylor had since re-aggravated his knee. I prefer the contents of the contemporaneous material to which I have just referred. This entry is consistent with the evidence in general, that Mr Taylor was recovering well from his surgery, but the detail that I have referred to above demonstrates that Dr Kinny was in error when he found that the work-related injury had adequately resolved.
When Dr Kinny responded to the qualified opinion of Dr Miller, he made some significant concessions. Dr Miller found that the work-related injury caused an ongoing susceptibility to further injury. He said that there was a “high incidence” of subsequent tears after a partial meniscectomy, and a significant incidence of reoperation. Dr Miller supplied statistics from research papers in support of his opinion.
Dr Kinny was in “full agreement” that there was a high incidence of subsequent tearing of the medial meniscus following a partial meniscectomy. He agreed also that there was a significant incidence of re-operation after a partial medial meniscectomy. He agreed that a person who had undergone meniscal surgery had an ongoing susceptibility to further injury.
Dr Kinny also conceded that whether or not the original work injury caused an ongoing susceptibility to further injury was “perhaps something for debate.”
These concessions go a considerable distance in undermining Dr Kinny’s first report. However, Dr Kinny sought to maintain his original opinion by again advising that, at law, a susceptibility did not make the employer liable but that, as he understood it, the subsequent injury was “the substantial contributing cause”. I assume that Dr Kinny actually meant that employment was not the substantial contributing factor to the subject incident. As indicated above, a consequential condition is not the same as a work-related injury. The concept of whether employment was either a substantial contributing factor or the main contributing factor to the injury has no application in a claim made as a consequential condition. All that is required is that the work-related injury materially contributed to the consequential condition.
The respondent sought also to support Dr Kinny’s opinion by submitting that I could not rely on Dr Miller’s report because he had assumed, without evidential foundation, that Mr Taylor suffered from a rotational instability following the arthroscopy of 2 July 2020. This submission led to an assertion that Dr Kinny’s view should be accepted that the forces involved when Mr Taylor’s foot was caught on the rail as he turned to go outside were sufficient of themselves to have caused the new meniscal tear.
Firstly, I did not read Dr Miller’s opinion regarding susceptibility as being dependent upon the accuracy of his opinion as to rotational instability. I found some ambiguity in Dr Miller’s statement in any event, as whilst he said that the mechanism of injury of the tear was thought to be due to rotational instability, he then said that the major mechanism of the injury was “a twisting action consistent with rotational instability.” I accept that Dr Miller’s meaning is obscure, and that indeed the evidence I have referred to indicates that Mr Taylor was not suffering any rotational instability prior to this incident.
Secondly, as I commented during the hearing, Dr Kinny’s assertion that the second injury alone “could have” been sufficient to cause the meniscal tear is of little probative value. One might equally speculate that the second injury alone, without Mr Taylor’s susceptibility, could have been insufficient to cause the tear.
It is not necessary to determine exactly what Dr Miller meant when he referred to rotational instability, as I am satisfied that Dr Miller’s opinion, readily agreed to by Dr Kinny, was that the predominance of subsequent re-tears of partial meniscectomies was not dependent on whether rotational instability was present or not. I accept Dr Miller’s advice that the reason for the recurrence of medial meniscal tears was due to the higher biomechanical load on the medial aspect of the knee joint, and the fact that there is less mobility in the medial meniscus than in the lateral meniscus.
Dr Kinny’s opinion that people who have undergone a partial meniscectomy do not require further surgery because they do not sustain further injury is logically correct, but has no application in the present case.
I am satisfied that Mr Taylor’s susceptibility following his surgical procedure 26 days prior to the subject incident, was a material factor in causing the fresh tear when he twisted his knee in the hotel. I accordingly do not accept Mr Adhikary’s submission that it was not possible for a rotational type injury, as occurred to Mr Taylor, to involve the susceptibility caused by the earlier surgery. There was a clear temporal connection between the arthroscopy of 2 July 2020, albeit that it was healing well, and the re-aggravation on 28 July 2020. Dr Kinny himself described the tear caused by the hotel incident at various times as a “re-injury,” “repeat injury” and a “recurrent tear” of the medial meniscus. I am satisfied that the susceptibility to further injury was a material factor in contributing to the damage Mr Taylor sustained in his mishap on 28 July 2020. The susceptibility caused an aggravation of his work-related injury, leading to the necessity for further arthroscopic surgery, for which the respondent remains liable.
Accordingly, I am satisfied that Mr Taylor’s case may be categorised within the second category in Oakley. The condition of Mr Taylor’s knee resulted from his subsequent accident, which would have occurred had he been in normal health, but the damage he sustained has been greater because of aggravation of his work-related injury. As was observed by McFarlan JA in Ozcan:[30]
“… This approach is simply an application of s 65 (1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which ’results’ from the injury in question and s 65 (2) of the 1987 Act and s 322 (3) of the 1998 Act…”
[30] At [14].

There being no argument as to whether the proposed surgery was reasonably necessary, there will be an award in favour of the applicant.

SUMMARY

The respondent will pay the cost of and associated with the proposed right knee arthroscopy proposed by Dr Prodger in his report of 8 September 2020.

[2022] NSWPIC 42

3 February 2022