Tham v Qantas Airways Limited
[2021] NSWPIC 373
•23 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tham v Qantas Airways Limited [2021] NSWPIC 373 |
| APPLICANT: | Siak Fay Tham |
| RESPONDENT: | Qantas Airways Limited |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 23 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of right total hip replacement; accepted injury to the right hip in fall at work on 31 July 2021; accepted exacerbation of previous arthritic change; dispute as to whether the proposed surgery is reasonably necessary as a result of that injury; Held - award for the applicant; finding that employment had materially contributed to the need for the surgery now; finding that surgery is reasonably necessary treatment as a result of the workplace injury; additional claim that the injury was exacerbated by the nature and conditions of the applicant’s employment as a flight attendant rejected; finding that applicant had not discharged his onus in respect of the additional claim. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to his right hip arising out of or in the course of his employment with the respondent on 31 July 2019. 2. Award for the respondent in respect of the claim for injury to the right hip by way of aggravation of the work-related injury as a result of the nature and conditions of the applicant’s employment with a deemed date of injury of 20 March 2020. 3. The right total hip replacement proposed by Dr Hornh Lii Oi is reasonably necessary as a result of the work-related injury on 31 July 2019. 4. The respondent to pay the costs of and associated with the proposed treatment pursuant to section 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Siak Fay Tham was employed by Qantas Airways Ltd (the respondent) as a long-haul flight attendant from July 1992 until March 2020 when he took a voluntary redundancy.
In April 2019, Mr Tham injured his right hip while exercising at the gym. After consulting his general practitioner, Dr Neal Bodsworth, he had chiropractic treatment. He had no time off work and says that, subsequently, the right hip pain improved.
An MRI scan on 29 May 2019 established that Mr Tham had marked right hip osteoarthritis and an extensive labral basal tear.
On 31 July 2019, Mr Tham was on duty when he slipped and fell at Ngurah Rai International Airport in Bali. He felt an immediate onset of severe pain in the right hip and right knee. Next day, on his return to Sydney, he saw Dr Bodsworth and underwent further chiropractic treatment.
On 9 August 2019, Mr Tham submitted a claim for compensation to the respondent in respect of the injury on 31 July 2019. He continued to undertake his pre-injury duties in the course of which, he says, he experienced continuous right hip pain which was exacerbated by his duties and by turbulence during flights.
By dispute notice issued on 21 February 2020, the respondent disputed liability to compensate Mr Tham for the cost of a right total hip replacement proposed by orthopaedic surgeon, Dr Horng Lii Oi, on the ground that it is not reasonably necessary as a result of the injury on 31 July 2019.
By an Application to Resolve a Dispute (ARD) lodged with the Personal injury Commission (the Commission) on 2 July 2021, Mr Tham claims compensation under section 60 of the Workers Compensation Act1987 (the 1987 Act) for the cost of a right total hip replacement as a result of:
(a) injury to his right hip in the fall on 31 July 2019, and
(b) the aggravation, acceleration, exacerbation or deterioration of disease due to the nature and conditions of his employment with the respondent (deemed date 27 March 2020).
The respondent accepts liability for injury to Mr Tham’s right hip on 31 July 2019 but disputes that the proposed total right hip replacement is reasonably necessary as a result of that injury. The respondent wholly disputes liability in respect of the claim in relation to the nature and conditions of Mr Tham’s employment.
ISSUES FOR DETERMINATION
There is no dispute that Mr Tham had pre-existing osteoarthritis and other conditions in his right hip.
The parties agree that the following issues remain in dispute:
(a) whether the proposed total right knee hip replacement is reasonably necessary as a result of the accepted injury on 31 July 2019, and
(b) whether Mr Tham received an injury by way of aggravation, acceleration, exacerbation or deterioration of his right hip as a result of the nature and conditions of his employment (deemed date 27 March 2020).
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation arbitration hearing on 14 September 2021. Mr Tham was represented by Mr Bill Carney of counsel, instructed by Ms Laura Gathercole. The respondent was represented by Mr Josh Beran of counsel, instructed by Mr Conor Tomkins.
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 attach documents, and
(c) Application to Admit Late Documents (AALD) lodged by the respondent on
10 September 2021 and attached documents.
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Mr Tham’s evidence
Mr Tham provided a written statement of evidence dated 3 June 2021[1]. He states that he commenced employment with the respondent as a long-haul flight attendant on 30 July 1992.
[1] ARD page 1.
Mr Tham states that, while exercising at the gym in April 2019, he developed a twisting pain in the region of his right hip and groin. He saw Dr Bodsworth and then had chiropractic treatment with Mr Dennis Maher. He did not take time off work due to the pain and, subsequently, his right hip pain improved.
An MRI scan on 29 May 2019 established that Mr Tham had “marked right hip OA and moderate femoral head neck stress response with extensive labral basal tear”, as well as an effusion and synovitis.
On 31 July 2019, Mr Tham was at Ngurah Rai International airport in Bali for work when he slipped in a pool of water at the end of a travelator, performing what he described to doctors as like “doing the splits”. He states that he felt an immediate onset of severe pain in the region of his right hip and right knee. He continued to perform his duties on the return flight to Sydney and iced his knee during breaks.
The next day, on his return to Sydney, Mr Tham saw Dr Bodsworth who advised he had suffered an exacerbation of the labral tear. On 2 August 2019, Mr Tham saw Mr Maher for chiropractic treatment.
Mr Tham states that, due to the financial strain he was experiencing, he continued to undertake his pre-injury duties as a long-haul flight attendant. He experienced “continuous right hip pain which was exacerbated during the course of a meal service due to the twisting of [his] upper body in transferring meals from the meal cart to the meal tray”. This appears to be a reference to a single incident, although it is not entirely clear.
Mr Tham states that, during the course of his employment with the respondent, turbulence was common, particularly on flights to and from Japan. He states that during turbulence, he “could not get a strong footing and struggled to get seated due to my right hip pain”.
On 17 January 2020, Mr Tham had an x-ray of his pelvis and right hip which showed conditions associated with degenerative change.
On 20 January 2020, Mr Tham saw Dr Oi who diagnosed significant osteoarthritic changes in the region of the right hip which had been symptomatically aggravated by the fall on 31 July 2019. Dr Oi recommended a further x-ray.
Mr Tham saw Dr Oi again on 24 January 2020. He states that Dr Oi recommended total hip replacement surgery as an appropriate management option of his right hip injury.
Mr Tham states that he continued chiropractic treatment with Mr Maher but continued to suffer right hip pain.
On 29 March 2020, Mr Tham took a voluntary redundancy. He states he would not have accepted the package had he not had the injury to his right hip on 31 July 2019.
Mr Tham states that he saw orthopaedic surgeon, Dr James Bodel, on 2 July 2020. Dr Bodel agreed with Dr Oi that a total right hip replacement surgery was appropriate management option for his injury.
Mr Tham states that, before the injury on 31 July 2019, he enjoyed playing tennis, running, stationary cycling and gym exercise. He also did yoga. He can no longer play tennis, run or do stationary cycling but he has gradually returned to gym exercise. He can no longer do yoga.
Dr Bodsworth’s notes
Dr Bodsworth’s notes date from 2 May 2019 when he noted what appears to be a reference to ligament damage in the hip with a query as to a labral tear[2]. On 10May 2019, he noted “damage in hip” with a query as to a labral tear, and that Mr Tham was seeing a chiropractor. The note shows “present 3-4w”, presumably a reference to the injury at the gym sometime in April 2019.
[2] ARD page 37.
Dr Bodsworth’s notes on 12 May 2019 indicate that the chiropractor thought Mr Tham had trochanteric bursitis and not a labral tear.
On 31 May 2019, Dr Bodsworth recorded that an MRI confirmed a labral tear. On 5 June 2019, he noted that Mr Tham had seen a chiropractor and was seeing a sports physio that afternoon. On 14 June 2019, he recorded that the sports physio “thinks should be off work”. He also recorded “hip generally better”.[3]
[3] AALD page 20.
Mr Tham saw Dr Bodsworth next on 1 August 2019 when he recorded “hip better until slipped doing splits 2d ago at Bali airport (also knocked right knee) which exacerbated what was the near resolved hip injury”[4].
[4] AALD page 19.
On 21 August 2019, Dr Bodsworth asked the respondent for permission to have a further MRI to assess the progress and degree of injury sustained in the fall at Bali airport.[5]
[5] ARD page 143.
Over the course of the next few months, Mr Tham saw Dr Bodsworth in relation to his hip and unrelated matters.
On 15 December 2019, Dr Bodsworth referred Mr Tham to Dr Oi. He stated that Mr Tham had a labral tear of the right hip “symptomatic since April this year” which “was exacerbated by a fall at Bali airport on 29 July”.[6]
[6] ARD page 11.
On 2 December 2019, Dr Bodsworth recorded that the hip was “80% better with chiro” and that the MRI showed significant osteoarthritis and traumatised labrum.[7]
[7] ARD page 146.
On 29 January 2020, Dr Bodsworth noted that Dr Oi recommended total hip replacement. He made a note to “draft summary by Friday to assist internal approval of THR”.[8]
[8] ARD page 30.
On 12 February 2020, Dr Bodsworth noted that Mr Tham had seen Dr Rimmer. His note indicates Mr Tham was not very happy about how things went at that appointment.
On 27 February 2020, Dr Bodsworth’s notes include the text of an email to “Eric” referring to his letter of 21 February 2020 (apparently a reference to the dispute notice). Dr Bodsworth took issue with the decision, in particular Dr Rimmer’s finding of “resolved aggravation of pre-existing degeneration”. Dr Bodsworth stated “This is simply untrue as the additional symptoms since the Bali injury persist”.[9]
[9] ARD page 29.
On 12 March 2020, Dr Bodsworth noted the reason for contact was the hip injury and that
Mr Tham had seen a lawyer.[10][10] AALD page 15.
Apart from a passing reference on 26 August 2020, the next reference in Dr Bodsworth’s notes to the hip injury was on 13 September 2020 when he recorded:
“1. lengthy chat re utility of right THR with both concluding worthwhile and proceed”[11]
[11] AALD page 12.
Dr Oi’s reports
Dr Oi reported to Dr Bodsworth on 20 January 2020[12]. He took a history that Mr Tham had had right hip symptoms from April 2019, exacerbated after a slip at Bali airport in July 2019. He noted that Mr Tham had seen a chiropractor with ultrasound, massage and stretching exercises, and his main concerns were functional limitation and pain.
[12] ARD page 152.
Dr Oi recorded a range of symptoms when Mr Tham performed various activities. None of them appear related to Mr Tham’s duties as a flight attendant. He noted that Mr Tham went to the gym regularly. As to management of his injury, Dr Oi stated:
“We discussed his condition and the management including non-operative and operative measures. Non-operative measures will include analgesia, physiotherapy and activity modification. Operative management would be a total hip replacement. The surgery, recovery and post operative function was discussed. An [information sheet] on total hip replacement was provided. I do not think his condition is likely to be amenable to arthroscopic debridement and I have asked Siak Fay to have a hip x-ray to evaluate the current status of joint space loss.”
Dr Oi reported to Dr Bodsworth again on 24 January 2020 following receipt of the x-rays. He noted the findings and stated:
“As such, arthroscopic hip surgery would not be of benefit to his restricted range of motion and pain. Operative management would be total hip replacement.
We discussed again continued nonoperative management versus total hip replacement. Total hip replacement surgery and prosthesis was discussed again.
Siak Fay I would like to consider this information further and discuss with you. He will return to see me when he has made a decision.[13]”
Investigative scans
[13] ARD page 151.
The report of the MRI on 29 May 2019 concludes:
“Marked right hip 0A.
Moderate femoral head and neck stress response.
Extensive labral basal tear.A small effusion and synovitis (and within these appearances, small loose bodies cannot be excluded).” [14][14] ARD page 149.
A report of a pelvis and right hip x-ray undertaken on 19 January 2020 notes the MRI on 29 May 2019 and that no previous radiographs were available for correlation at the time of the
x-ray. The report makes a number of findings associated with degenerative change, more marked on the right.[15]
Dr Bodel’s report
[15] ARD page 148.
Dr Bodel saw Mr Tham for assessment on 2 July 2020[16]. He took a history that Mr Tham had worked as cabin crew for international flights since July 1992. Mr Tham told him that “because of a number of factors, including the deteriorating hip function on the right hand side, he had availed himself of a redundancy offered on 29 March 2020” and had now retired.
[16] ARD page 19.
Dr Bodel said Mr Tham indicated that work as cabin crew was “physical at times, preparing meals, serving customers on the plane and pushing and pulling carts with various products in them”. Over the years he had had minor strains but “nothing serious”[17].
[17] ARD page 20.
Dr Bodel referred to the fall on 31 July 2019 in which Mr Tham slipped and “did the splits”, that he felt an immediate onset of severe pain in the region of the right groin, and that he completed the return trip, taking breaks.
Dr Bodel said Mr Tham “subsequently had further investigations including x-rays and MRI scans and it was clear that he had significant arthritic change in the region of the right hip and a labral tear which was made much worse by that event on 31 July 2019.”
Dr Bodel said he had seen the x-rays dated 17 January 2020, and the earlier MRI scan on 29 May 2019. He noted that Dr Oi had said Mr Tham had significant osteoarthritis in the right hip which had been symptomatically aggravated by the fall in Bali.
As to treatment, Dr Bodel said Mr Tham had tried to manage the hip conservatively as he was not too keen to have surgery at any stage. He had tried chiropractic treatment and some analgesic medication but he was struggling and eventually saw Dr Oi. Dr Bodel noted Dr Oi’s comments about treatment. He said:
“Mr Tham has been reluctant to consider a total hip replacement and that was his initial response to Dr Oi that he would not go ahead with the total hip replacement at that time and tolerate his pain instead. Subsequently he was becoming more distressed because of the severity of the pain and he did agree to the total hip replacement.”
Dr Bodel said:
“On further thought Mr Tham at the moment is happy to leave the hip and manage his pain by conservative means. He accepts that at some later stage it is almost inevitable that he will need to consider the total hip replacement and he has resigned himself to that fact.[18]”
[18] ARD page 21.
In response to a question whether Mr Tham should be referred to a doctor of another specialty for assessment, Dr Bodel said:
“This is an orthopaedic matter and he has made an appropriate decision not to proceed with the total hip replacement at this stage but it is inevitable in my view that within the next 3 to 5 years he will need to consider a total hip replacement as the appropriate management for this ‘injury’ that occurred at work[19].”
[19] ARD page 24.
Dr Bodel said Mr Tham was managing his pain with conservative care at the moment “and that is appropriate”. It was inevitable that within the next three to five years he would need to consider a total hip replacement, the need for which was reasonably necessary as a result of the workplace injury, which was “the aggravation, acceleration, exacerbation and deterioration of a previously asymptomatic hip joint on the right hand side”. The injury at work had brought forward the timing of the inevitable total hip replacement by at least five years.
As to causation, Dr Bodel said Mr Tham had been “minimally symptomatic” in the right hip region for about three or four months before the injury on 31 July 2019. He said:
“The investigations by means of the MRI scan showed severe arthritic change in the region of the right hip and this has been aggravated, accelerated, exacerbated and deteriorated by the nature of the work in general over 28 years as a flight attendant and also specifically by the frank injury that occurred on 31 July 2019.”
Dr Rimmer’s reports
Dr Stephen Rimmer, orthopaedic surgeon, first reported to the respondent on 14 February 2020[20]. He took a history of the fall on 31 July 2019 consistent with other reports. He noted that Mr Tham had pain in his right groin/hip at the gym in April 2019, that subsequent investigations revealed a labral tear and that he had “ongoing intermittent pain since”.
[20] Reply page 1.
Dr Rimmer noted the MRI on 29 May 2019 showed degenerative osteoarthritis throughout the right hip, and the x-ray on 17 January 2020 showed moderate to severe degenerative osteoarthritis.
Dr Rimmer diagnosed resolved aggravation of severe pre-existing degenerative osteoarthritis right hip which was consistent with the symptoms and description of mechanism of injury from the accident. He stated that Mr Tham’s employment was initially the substantial contributing factor to the injury but this had ceased given the severity of the pre-existing pathology.
Dr Rimmer stated that Mr Tham was suffering from symptoms regardless of the workplace injury due to the injury in the gym in April 2019. Initially, there was an exacerbation but given the period of time elapsed it had well and truly ceased and any ongoing symptoms were due to the severe pre-existing condition.
In Dr Rimmer’s view, Mr Tham “would ultimately have required a right total hip replacement regardless of the workplace incident, given the severity of the pathology present[21]” asked whether the requested surgery was reasonably necessary as a result of the injury on 31 July 2019, Dr Rimmer said he did not. Firstly, he said, all conservative measures had not been exhausted and he recommended oral analgesics for anti-inflammatories, neither of which
Mr Tham was taking.[21] Reply page 140.
Dr Rimmer provided further reports dated 17 August 2021 and 7 September 2021. He confirmed that the mechanism of injury was consistent with an aggravation of severe pre-existing osteoarthritis and said any ongoing symptoms were due to that condition. He noted that symptoms commenced in April 2019 when Mr Tham was at the gym.
Dr Rimmer confirmed his opinion that:
“given the period of time elapsed in conjunction with extensive treatment he has had, any ongoing symptoms are due to pre-existing degenerative change, which commenced in April 2019 while attending a gymnasium.”[22]
[22] AALD page 202.
With respect to the proposed treatment, Dr Rimmer said it was “reasonable and necessary as a result of pre-existing degenerative osteoarthritis”[23]. He said Dr Bodel’s opinion only served to confirm that Mr Tham would have needed a total hip replacement regardless of the workplace injury.
[23] AALD page 202.
With respect to the nature of Mr Tham’s work over 28 years as a flight attendant, Dr Rimmer said he did not believe it had caused the aggravation, acceleration, exacerbation and deterioration of the severe arthritic change because the symptoms first started while
Mr Tham working out of the gym in April 2019 and “this event alone” caused the aggravation. Dr Rimmer said it was that event that had brought forward the timing of the total hip replacement.
SUBMISSIONS
The respondent’s submissions
Mr Beran submits that the responded accepts that the fall on 31 July 2019 increased the symptoms in Mr Tham’s right hip and was an exacerbation of the pre-existing condition. However, it has to be seen in context of the significant pre-existing pathology.
Mr Beran submits that the MRI on 29 May 2019, before the subject injury, showed extensive damage to Mr Tham’s right hip. Dr Bodsworth’s clinical notes on 2 May 2019 confirm the injury in April 2019 and, on 14 June 2019, that the sports physiotherapist thought Mr Tham should be off work. The referral to Dr Oi in December 2019 noted that the labral tear had been symptomatic since April 2019 and referred to an exacerbation only. Dr Oi also considered the injury was an exacerbation of the pre-existing condition
Mr Beran submits that Dr Oi considered options for treatment but did not recommend one or the other, only that operative treatment would be a total hip replacement. Nor did
Dr Bodsworth recommend a total hip replacement, only that Mr Tham had said he wanted it.Mr Beran submits that Mr Tham does not actually say in his statement that he wants the total hip replacement. Nor does he refer to conservative measures undertaken and exhausted. He says in his statement that Dr Bodsworth continues to manage his condition conservatively but the notes do not show any conservative treatment.
After 13 September 2020, and up to 21 August 2021 when Dr Bodsworth’s notes end, there is no reference in the notes to the hip. Mr Beran submits this is consistent with the doctors’ view that Mr Tham should delay surgery.
Mr Beran submits that Dr Bodel took a history that Mr Tham had some “twisting pain” in April 2019 sufficient to warrant an MRI in May 2019. He refers to an MRI scan “subsequent” to the fall when in fact there was none. Dr Bodel’s opinion that there was significant change in the hip following that injury is not based on fact. Mr Beran relies on Hancock v East Coast Timber Products Pty Ltd.[24]
[24] [2011] NSWCA 11.
Mr Beran submits that Dr Bodel says the symptomatology was aggravated by the fall but the treating doctors say it was exacerbated; the two are different. Whereas Dr Bodel said there was a significant increase in the pathology based on subsequent scans, Dr Rimmer said there was an exacerbation, an increase in symptomatology, rather than a change in the natural course of the disease.
Mr Beran submits that Dr Bodel noted that Mr Tham was happy to maintain conservative treatment for now, and had made “an appropriate decision” not to proceed with surgery.
Mr Beran submits that no treating doctor says the surgery is reasonably necessary now, and Dr Bodel agrees. Further, Dr Bodel states, incorrectly, that the hip had been minimally symptomatic for three to four months before the fall. He had a scan in May 2019 and no doctor says he was a symptomatic before then.Mr Beran submits that Dr Rimmer referred to the severe pre-existing degeneration and that Mr Tham was certified for pre-injury duties immediately following the injury. He said Mr Tham would need a total hip replacement regardless of the injury. He noted that Mr Tham was taking no medication for his condition which, in Mr Berans submission, would be the first step.
Mr Beran submits there is no credible evidence to support the claim that the nature and conditions of Mr Tham’s employment caused injury, and Dr Bodel needs to say what they were that caused the aggravation.
Mr Beran submits that the issue is whether the incident materially contributed to the need for the surgery, and Mr Tham has not answered that question. The only real evidence is from
Dr Bodel which is flawed because it is based on evidence of scans and a conclusion as to pathology which was not there.
The applicant’s submissions
Mr Carney submits there is no dispute as to the pre-existing condition in the hip. What exactly occurred in the incident at the gym in April 2019 is not known but Dr Bodsworth’s notes show that the symptoms had improved and largely resolved with chiropractic treatment before 31 July 2019.
Mr Carney submits that Dr Bodsworth’s records show that Mr Tham’s right hip was better and nearly resolved until he slipped. The fact that there is a record of a sports physiotherapist saying Mr Tham should be off work tells us nothing. In any event,
Dr Bodsworth did not think he needed to be off work.In Mr Carney’s submission, the incident on 31 July 2019 was significant and its physical effect much greater than the incident in the gym. It involved the knee as well. Mr Tham continued working after the incident at the gym but only continued working after the subject injury because of financial strain. Further, while doing his duties he felt continuing pain.
Mr Carney submits that Dr Oi describes significant disabilities following the fall. Six months after the injury, Mr Tham was having serious problems and restrictions such as walking up and down steps. Mr Carney submits there is no evidence he had restrictions like these before the fall.
Mr Carney submits that Dr Bodsworth disagreed with Dr Rimmer’s conclusion that the effect of the fall on 31 July 2019 had ceased. He made clear in his letter to the insurer of 27 April 2020 that Mr Tham’s symptoms persisted. Dr Rimmer takes a broad brush approach and suggests that the subject injury was minor and had resolved but the evidence shows otherwise.
Mr Carney submits that Dr Oi gave Mr Tham two options, conservative treatment or surgery. Dr Bodsworth’s records show that by March 2020, Mr Tham had decided to proceed with surgery, and Dr Bodsworth agreed. He had tried conservative treatment, he had tried chiropractic treatment and had taken some analgesia but, as Dr Bodel noted, he was still struggling. Although he did not want to have surgery initially, he became more distressed and decided to take that option.
As to the proposed surgery being inevitable, Mr Carney submits that no one was talking total hip replacement before the 31 July 2019. Relying on Kooragang Cement Pty Ltd v Bates[25], Mr Carney submits that common sense indicates that the fall made a material contribution to the aggravation and to the need for surgery. I would accept Dr Bodel’s opinion that it became inevitable because of the injury and was reasonably necessary for treatment of the injury.
[25] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Carney relies also on Diab v NRMA Ltd[26] in which Deputy President Roche referred at [113] to the statement of Glass JA Fernandes v Tubemakers of Australia[27] that causation involves a question of fact and a finding of causal connection maybe open without any medical evidence at all to support it.
[26] [2014] NSWWCCPD 72 (Diab).
[27] (1975) 2 NSWLR 190.
Considering all of the evidence, Mr Carney submits that the treating evidence is the most important and it supports the need for the surgery after the injury on 31 July 2019.
Dr Rimmer is out on a limb. I would be satisfied, on the evidence, that Mr Tham has discharged his onus of proof.Mr Carney refers to Mr Tham’s evidence that continuing his duties aggravated the injury to his right hip, and to Dr Bodel’s report in support of that claim. Mr Carney acknowledges that, in the end, little turns on whether the nature and conditions claim succeeds.
Respondent’s submissions in reply
In reply, Mr Beran urges caution in comparing an MRI and x-rays as Dr Bodel does.
Mr Beran submits that the two involve different techniques, different doctors and different language and, moreover, Dr Rimmer actually viewed the films whereas Dr Bodel did not.Mr Beran submits that Dr Bodel’s opinion that surgery was appropriate management of
Mr Tham’s injury was based on his opinion that there had been a change in pathology, based on the scans, and this was incorrect. Finally, his opinion is clearly that this is an orthopaedic matter and it is appropriate to delay the surgery.
CONSIDERATION
Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
There is no dispute that Mr Tham sustained an injury to his right hip in the course of his employment with the respondent on 31 July 2019. There is no dispute that he had severe degenerative disease in his right hip before the fall on 31 July 2019.
The question for determination is whether the total knee replacement proposed by Dr Oi is reasonably necessary as a result of that injury.
Mr Tham bears the onus of proof. The standard is on the balance of probabilities, meaning
I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[28]; Nguyen v Cosmopolitan Homes[29].[28] [2008] NSWWCCPD 134.
[29] [2008] NSWCA 246.
There is no dispute that the fall on 31 July 2019 exacerbated the pre-existing degenerative condition in Mr Tham’s right hip. Dr Bodel described the effect of the fall as an aggravation. Dr Rimmer describe the effect as both an aggravation and an exacerbation. Mr Tham’s doctors referred to an exacerbation of the pre-existing condition.
Mr Beran took issue with Dr Bodel’s description of the effects of the fall as an “aggravation” of Mr Tham’s pre-existing condition. Mr Beran submits that Dr Bodel’s opinion was not based on fact. Dr Bodel considered the pre-existing condition was made “much worse” by the fall based on “further investigations including x-rays and MRI scans” when, in fact, there was no subsequent MRI and only the x-ray in January 2020.
I agree that, insofar as Dr Bodel’s opinion was based on a comparison of pre-and post-fall scans, he was incorrect. To that extent, his report has to be approached with some caution. However, as I understand the submission, it goes to the extent to which the fall made the condition worse; there is no dispute that there was an increase in symptomatology.
Mr Tham does not dispute that he injured his right hip at the gym in April 2019. It is not entirely clear from the evidence whether the labral tear that was identified on the MRI on 29 May 2019 occurred at that time. It appears probable that it did because Dr Bodsworth’s notes on 2 May 2019 noted symptoms had been present for three to four weeks and he queried a labral tear. The MRI subsequently confirmed the labral tear and marked osteoarthritis. Dr Bodsworth refers to a labral tear in April 2019 in his referral to Dr Oi.
The respondent maintains that the fall on 31 July 2019 was a minor incident, the effects of which had “well and truly ceased” by the time he saw Dr Rimmer in February 2020. By comparison, the respondent submits, the incident at the gym was more serious. Mr Tham needed chiropractic treatment and the sports physiotherapist apparently indicated he should not be working.
I place no weight on Dr Bodsworth’s note of the sports physiotherapist’s opinion. There is no evidence from the physiotherapist. In any event, Mr Tham continued working after the gym incident, and Dr Bodsworth evidently considered he was able to work.
Mr Carney submits that the fall was clearly more serious, and its physical effects much greater, than the incident in the gym. Mr Carney submits that Mr Tham’s description of the fall itself, and that he felt immediate, severe pain in his right hip and knee, supports this conclusion. I note that there is no reference to the right knee in Dr Bodsworth’s notes and
Mr Tham makes no further reference to it.In the absence of a further MRI following the fall, it is not possible to compare the effects of the two incidents. I accept Mr Beran’s submission that the x-ray in January 2020 is no basis for a reliable comparison with the pre-injury MRI. However, I cannot see that trying to compare the two incidents takes the matter much further.
Dr Bodsworth’s notes on 14 June 2019 show that the right hip was “generally better”. On
1 August 2019, he recorded “hip better” until the fall exacerbated the “near resolved hip injury”. In his referral to Dr Oi, he noted that the right hip had been “symptomatic since April this year”.Again, Dr Bodel’s report has to be approached with some caution. He described Mr Tham’s right hip joint as “previously asymptomatic” and also as “minimally symptomatic” for about three or four months before the injury on 31 July 2019. Neither statement is accurate. However, Dr Bodsworth’s records support the conclusion that the effects of the incident at the gym had largely resolved before the fall. I accept that is what had occurred.
The issue for determination is whether the injury on 31 July 2019 has caused the need for the right total knee replacement.
The legal test of causation was described by Kirby P (as he then was) in Kooragang:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy v Allity Management Services Pty Ltd[30], Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
[30] [2015] NSWWCCPD 49.
The fact that Mr Tham had a pre-existing condition in his right hip and that he had an injury in April 2019 does not preclude a finding that the fall on 31 July 2019 made a material contribution to the need for the total hip replacement.
Dr Bodsworth’s notes show that Mr Tham continued to complain of symptoms in his right hip following the fall. Dr Bodsworth disagreed strongly with the insurer’s finding in February 2020 that the aggravation had resolved. He stated this was “simply untrue” and that “the additional symptoms since the Bali injury [persisted]”. As Mr Tham’s treating doctor of some years, Dr Bodsworth’s opinion carries considerable weight. Dr Oi also reported ongoing symptoms following the fall.
For the reasons already discussed, Dr Bodel’s opinion has to be approached with some caution but he nevertheless documented ongoing symptoms following the fall.
Mr Tham’s evidence is that he continued to experience pain in his right hip following the fall at work. He states that he would not have accepted a voluntary redundancy in March 2020 had it not been for the injury to his right hip. According to Dr Bodel’s report, Mr Tham said he took the redundancy “because of a number of factors, including the deteriorating hip function”. Mr Beran submitted that it is common knowledge what was happening at Qantas around that time on account of the coronavirus pandemic. That may be true but I do not think anything really turns on whether there were additional factors in Mr Tham’s decision to take the redundancy. I am satisfied that he continued to experience symptoms in his right hip.
I have difficulty with Dr Rimmer’s opinion. He agreed that the fall exacerbated the symptoms in Mr Tham’s right hip. He went on to say that Mr Tham was suffering from symptoms regardless of the workplace injury due to the injury in the gym in April 2019. Dr Rimmer said:
“given the period of time elapsed in conjunction with extensive treatment he has had, any ongoing symptoms are due to pre-existing degenerative change, which commenced in April 2019 while attending a gymnasium.”
Further on in his report, commenting on the nature and conditions claim, Dr Rimmer said
Mr Tham’s work over 28 years as a flight attendant had not caused the aggravation, acceleration, exacerbation or deterioration of the severe arthritic change because the symptoms first started while Mr Tham was working out at the gym in April 2019. Dr Rimmer stated that “this event alone caused the aggravation and brought forward the timing of the total hip replacement”.
Given how relatively close in time the incident at the gym and the workplace injury were, and given that he apparently accepted Mr Tham had ongoing symptoms, it is not clear how Dr Rimmer came to the conclusion that the aggravation was caused by the gym alone. It is not clear why that event alone brought forward the timing of the total hip replacement. Dr Rimmer has not explained clearly why he attributed all of the ongoing symptoms to the incident in April 2019 and concluded that the effects of the fall three months later had resolved.
There is no evidence of any suggestion of surgery following the incident in April 2019. Dr Oi raised the question of surgery in January 2021, following Dr Bodsworth’s referral in December 2019. The referral mentioned the lateral tear, symptomatic since April 2019, and the exacerbation in the fall at work.
I find that, whereas Mr Tham’s right hip had largely resolved before the fall, he has continued to have symptoms in his right hip since. Despite the difficulties with Dr Bodel’s report I find that his report and those of Dr Bodsworth and Dr Oi are supportive of the finding that the injury on 31 July 2019 materially contributed to the need for the right hip replacement. If other factors also materially contributed, that does not preclude a finding in Mr Tham’s favour.
What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[31] at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of th e condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[31] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
Considering the factors relevant to reasonably necessary treatment under section 60 of the 1987 Act, Burke CCJ said in Bartolo v Western Sydney Area Health Service[32]:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[32] (1997) 14 NSWCCR 233.
The principles were summarised by Deputy President Roche in Diab (at [88-89]) as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
The respondent contends that Dr Oi did not recommend the total hip replacement but simply described that as what would constitute operative management. Further, that Dr Bodel said it was “an orthopaedic matter” and Mr Tham had made an “appropriate decision” not to proceed with surgery “at this stage”.
I agree that Dr Oi did not recommend operative treatment over non-operative measures. However, it is clear from his reports that he and Mr Tham discussed the prospect of surgery in some detail. Dr Oi gave him an information sheet and asked him to discuss the matter with Dr Bodsworth and come back when he had made a decision. Dr Oi evidently considered surgery appropriate. He did not say it was more appropriate to pursue conservative treatment but left the decision to Mr Tham.
Mr Tham saw Dr Bodel in July 2020. Dr Bodel reported he had been reluctant to consider surgery and had initially decided not to go ahead. Subsequently the pain became more severe and he decided to proceed. On further thought, Mr Tham had decided to continue with conservative treatment.
While Dr Bodel described that decision as appropriate, and that it was “appropriate” to continue with conservative treatment, he also considered that a total hip replacement was reasonably necessary as a result of the workplace injury and that the “inevitable” had been brought forward by up to five years. Dr Bodel did not say surgery was not appropriate.
On 13 September 2020, Mr Tham saw Dr Bodsworth who recorded they had had a lengthy chat about the utility of a total right hip replacement “with both concluding worthwhile and proceed”. The record makes clear that, two months after seeing Dr Bodel, and in consultation with Dr Bodsworth, Mr Tham had decided to proceed with surgery.
The respondent maintains that the total hip replacement is not reasonably necessary because Mr Tham has not exhausted all conservative means. Mr Beran submits that oral analgesia or anti-inflammatories as recommended by Dr Rimmer would be an appropriate step before proceeding to surgery.
Dr Bodsworth’s records show that Mr Tham was reluctant to use analgesia. He had had chiropractic treatment following both injuries, with some benefit. He continued to experience pain even with some chiropractic treatment after the workplace injury. He now wishes to proceed with surgery. Given the doctors agreement as to the severity of his condition, that decision would seem reasonable.
I accept that a total hip replacement was inevitable. Dr Bodel reports that it has been brought forward by some three to four years, or by “at least five years”. I accept that it is reasonably necessary now as a result of the workplace injury.
Considering all of the evidence, I am satisfied on the balance of probabilities that the workplace injury on 31 January 2019 made a material contribution to the need for the right total hip replacement. Further, that the proposed surgery is reasonably necessary as a result of that injury.
The nature and conditions claim
I am not satisfied that the evidence supports a finding that the nature and conditions of
Mr Tham’s employment following the workplace injury aggravated his condition.I accept that Mr Tham continued to experience pain in his hip following the workplace injury but I do not accept, on the evidence he has provided, that the injury was exacerbated by his employment duties.
Mr Tham says twisting his upper body when transferring meals from the meal cart to the meal tray exacerbated the pain in his hip. Further, that turbulence was common and, when it occurred, he struggled to get seated due to the hip pain. That is the extent of the information provided. He says nothing about how often he performed those duties or for how long, or how often there was turbulence to the extent that he struggled to get seated.
Mr Tham relies on Dr Bodel’s report that the nature and conditions of his employment aggravated his injury.
Dr Bodel noted that Mr Tham’s work was “physical at times” and he referred to preparing meals, serving customers and pushing and pulling carts. Dr Bodel says nothing about the duration or frequency of these activities, or the extent of any loads when pushing and pulling carts. He says nothing about Mr Tham twisting his upper body. He makes no mention of turbulence.
Dr Bodel refers to the nature of Mr Tham’s “work in general over 28 years” as aggravating the arthritic change in his right hip as well as the injury on 31 July 2019. That is not
Mr Tham’s claim, and Dr Bodel provides no real basis for his opinion. This claim is rejected.
DETERMINATION
For these reasons, there will be orders are set out in the attached Certificate of Determination.
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