Thorne v Bingo Pty Ltd - [2021] NSWPIC 49

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thorne v Bingo Pty Ltd [2021] NSWPIC 49
APPLICANT:	Stephen Thorne
RESPONDENT:	Bingo Pty Ltd
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	26 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for future hip replacement surgery; surgery agreed to be a medical necessity, however, the cause of the need for that surgery at issue; whether the surgery is reasonably necessary as a result of an aggravation to an asymptomatic underlying condition suffered in a fall at work which also caused an accepted lumbar spine injury; Held- the applicant suffered an ongoing aggravation to his right hip in the incident at issue; the effects of that aggravation are ongoing; the aggravation has given rise to the need for the proposed surgery; the proposed surgery is reasonably necessary as a result of the injury; the respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his right lower extremity (hip) in the course of his employment with the respondent on 24 September 2018, by way of an aggravation of a pre-existing degenerative condition. 2. The applicant’s employment with the respondent was the main contributing factor to the injury referred to in paragraph 1 above. 3. As a result of the injury referred to in paragraph 1 above, the applicant requires surgery by way of total right hip replacement. 4. The surgery referred to in paragraph 3 above is reasonably necessary as a result of the injury referred to in paragraph 1 above. 5. The respondent is to pay the costs of and incidental to the proposed total right hip replacement surgery.

STATEMENT OF REASONS

BACKGROUND

On 21 September 2018, Mr Stephen Thorne (the applicant) was in the course of his employment with Bingo Pty Ltd (the respondent) when he slipped from a ladder as he was descending a front-end loader, sustaining injury to his lumbar spine.

The applicant also alleges that the fall on 24 September 2018 caused an aggravation to an underlying degenerative condition in his right hip, which has brought about the requirement for a total hip replacement.

The respondent denies liability for the surgery, and alleges that although it is a medical necessity, the need for it was not brought about by any workplace injury but rather by the underlying degenerative condition itself.

ISSUES FOR DETERMINATION

The parties agree that the only issues in dispute are whether the applicant suffered an injury to his right hip in the incident in question and whether that injury has brought about the requirement for the medically necessary right hip replacement.

PROCEDURE BEFORE THE COMMISSION

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 matter proceeded to a conciliation/arbitration hearing before me on 1 March 2021. On that occasion, Mr G Barter of counsel appeared for the applicant instructed by Ms L Hunt, solicitor. Ms L Goodman of counsel appeared for the respondent, instructed by Ms E Blackman, solicitor.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents.

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Injury to the right hip

In its dispute notice dated 7 June 2020, the respondent placed in issue whether the applicant suffered a hip injury in the incident at issue and whether his employment was the main contributing factor to his hip condition.
There is no doubt the applicant suffered a serious back injury in the incident at issue. That injury necessitated two rounds of surgery including a microdiscectomy for symptoms which included back pain and right-sided radiculopathy. He brings his claim for the right hip injury on the basis the incident on 21 September 2018 aggravated an underlying disease process.
“Injury” is relevantly defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,
(b) includes a “disease injury”, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”

An applicant is able to rely on injury simpliciter despite the existence of a disease, as was highlighted in Zickar v MGH Plastic Industries Pty Ltd (Zickar) (1996) 187 CLR 310. In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurism. The congenital condition could be characterised as a disease, however that would not have satisfied the requirements of clause (b) of the definition in s 4. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of a disease did not preclude reliance upon that event as a personal injury. Toohey, McHugh & Gummow JJ agreed with a passage in Accident Compensation Commission v McIntosh [1991] 2 VR 253 that, “it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur” (at [262]). The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
The High Court considered the issue of aggravation and exacerbation of disease processes in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch). Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
Windeyer J said in the same matter, “[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient” (at 639) and in relation to whether there was an aggravation, his Honour said “… the answer depends upon whether for the sufferer the consequences of his affliction have become more serious” (at 637).

Burke CCJ, applied Semlitch in the matter of Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant) and said:

“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (at [17])

In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha) the Court of Appeal said the words “injury consists in the aggravation ...of a disease” in section 16(1) of the 1987 Act should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616).
The above authorities have been consistently followed at Presidential level by the Commission in matters such as AV v AW [2020] NSWWCCPD 9. It can therefore be said that the proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79 (Raymond) applying Semlitch and Cant. In Raymond, Roche ADP (as he then was) was satisfied that, on the whole of the evidence, it was open to the Arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious while employed (at [45-47]).
For the applicant, Mr Barter submitted the Commission would accept the applicant's evidence that on the day after the fall, he suffered from severe pain in his lower back, right hip and buttock which remains ongoing.
Mr Barter submitted there was no evidence in any clinical material to suggest the applicant suffered from right hip symptoms before the fall, however, there was also no issue of the presence of longstanding degenerative changes in that body part.
Mr Barter submitted the absence of treatment of the right hip from an early stage was because the applicant’s doctors, including neurosurgeon Dr Damodaran were of the view his symptoms related only to the lumbar spine radiculopathy and accordingly set about treating that condition. Mr Barter submitted it was only after the two operations to remedy the radiculopathy had been performed and the applicant's right hip symptoms persisted that a referral to orthopaedic surgeon Dr Della Torre was made.
For the respondent, Ms Goodman submitted there was plainly a difference between low back radicular symptoms and hip pain, and that no treating doctor ascribes the applicant's right hip problems to the work condition. Whilst that may be the case with regards to the reports written by treating doctors to each other, the fact Dr Della Torre requested the respondent’s insurer to pay for the cost of the right hip replacement is consistent with him believing the need for the operation was brought about by a workplace injury. Moreover, the respondent paid for a steroid injection to the applicant's right hip on 12 September 2019, which it said in the dispute notice was “part of a holistic approach" to assist his recovery.
As already noted, there is no issue the applicant suffers from significant degenerative changes to his right hip. That much is borne out by the MRI dated 23 August 2019, found at page 57 of the Application. That scan revealed the presence of “moderate osteoarthritis of the right hip with mild effusion and moderate synovitis. Moderate bony stress response along the anterior acetabulum associated with subchondral cyst formation.”
Ms Goodman relied on the report of Dr Powell, IME for the respondent, who indicated the need for the accepted operation in the applicant arose from the degenerative condition. For the applicant, Mr Barter noted that it is his symptoms which bring about the requirement for surgery, not an underlying condition. He submitted the Commission would accept the applicant's evidence that he woke up the day after the injury at issue with pain in his back, leg, and right hip.
In his report dated 3 September 2019 to Dr Damodaran, Dr Della Torre noted the applicant's presenting problem being a workplace injury 11 months earlier with right groin pain and provisional diagnosis of “irritable right hip, moderate degenerative changes to the right hip, complex presentation with probable hip spine syndrome.”
Dr Della Torre took a history from the applicant of landing heavily after slipping and falling in the injury at issue. He noted at the time the applicant felt acute onset of lower back pain, was seen at Canterbury Hospital initially and “then subsequently developed right leg pain, weakness, and numbness.”
Although, as Ms Goodman pointed out, Dr Della Torre makes no direct comment as to causation, he reported to Dr Damodaran:
“In summary, Mr Thorne has significant gait abnormality, and irritable right hip with synovitis and what appears to be a degenerating right hip, in a gentleman who had no prior symptoms before his workplace accident.”
Ms Goodman referred the Commission to the clinical records of the general practitioner Dr Wu, which she noted did not contain any post-accident mention of hip pain until many months after injury at issue, and submitted if the fall at work was the cause of any aggravation to the underlying condition, one would expect such aggravation to have arisen much sooner than what was recorded in the contemporaneous records.
Mr Barter indicated there was relatively contemporaneous evidence of right-sided problems in the form of the report of Dr Damodaran dated 6 December 2018, in which he recorded a history following the incident at issue after which “he developed severe back pain, which was followed by right-sided leg pain.”
In his report dated 25 March 2019, which was dictated six weeks after the applicant's microdiscectomy, Dr Damodaran noted the applicant initially had improvement in his radiculopathy following surgery, but there had been no further improvement in his symptoms. At that time, Dr Damodaran noted the MRI did not demonstrate any further compression of the S1 nerve root, and he opined the ongoing pain could be chronic neuropathic pain. He then referred the applicant to Dr Hassan for nerve conduction study.
In my view, that report is consistent with the submission of the applicant to the effect his treating doctors including his neurosurgeon originally thought his symptoms all related to his back, but after his operations the doctors began to realise there was a problem with his right hip. The fact Dr Damodaran was looking for a further cause for the applicant's pain notwithstanding surgical intervention is, in my view, strongly suggestive that this is the case.
Dr Hassan, neurologist, provided a report on the nerve conduction studies in which he found there was evidence of mild chronic right sided S1 radiculopathy which was to be expected given the MRI findings. He suspected the applicant’s symptoms were due to both right L5 and S1 radiculopathies.
As a result of those scans, Dr Damodaran undertook further surgery at the L4-5 level by way of microdiscectomy. That operation took place on 1 July 2019, and after the surgery he noted some decrease in the intensity of the applicant’s back pain and an improved ability to walk.
On 26 August 2019, Dr Damodaran wrote to the applicant’s general practitioner and noted that since the surgery, his lower lumbar radicular pain had resolved, but the applicant continued to walk with a limp and had persisting intermittent anterior thigh, hip and posterior thigh pain. At this point in time, Dr Damodaran said:
“If Stephen’s symptoms are related to a concurrent hip pathology, this may also affect his walking. I was able to reproduce the hip and thigh pain with passive movement of the hip joint. I would like Stephen to see Dr Paul Della Torre for a second opinion to rule out concurrent hip pathology. I have also organised a hip MRI.”
It is therefore apparent that by August 2019, Dr Damodaran had reached the view the applicant’s ongoing problems related not only to his radiculopathy but to concurrent hip pathology. This opinion was confirmed by Dr Della Torre, who as I have indicated, noted a pre-injury history of an asymptomatic right hip. It is also significant that Dr Damodaran noted the applicant’s hip and thigh symptoms were “persisting.” This also suggests a consistency in presentation, but one which the treating doctors initially believed related to the lumbar injury, rather than the hip itself.
The realisation by Dr Damodaran that there was concurrent hip pathology is also, in my view, consistent with Mr Barter’s submission that the lumbar symptoms and their treatment to a significant extent masked the hip problems the applicant had experienced after the fall at issue.
To that extent, in my view, those opinions are broadly consistent with the views of Dr Bodel, IME for the applicant. Dr Bodel noted the applicant’s symptoms rapidly deteriorated after the fall at issue, and that it was the increasing hip and thigh pain which eventually led Dr Damodaran to refer the applicant for an MRI scan of the hip and to orthopaedic surgeon Dr Della Torre.
Dr Bodel provided the following diagnosis:
“This gentleman has a disease process which is the osteoarthritic change in the region of the right hip and this has been aggravated, accelerated, exacerbated and deteriorated by the nature of work in general and by the specific event that occurred at work on 24 September 2018.”
As Ms Goodman pointed out, there was no claim for nature and conditions of employment as being the cause of the applicant’s condition. Rather, the applicant brings his claim on the basis that the fall at work on 24 September 2018 caused an aggravation of his right arthritic hip. When specifically asked as to the cause of the applicant's condition, Dr Bodel answered at page 25 of the application “he has also suffered the aggravation, acceleration, exacerbation, and deterioration of his right arthritic hip in that same injury [on 24 September 2018] and work in general.”
Dr Powell, IME for the respondent by contrast focuses on the right hip pathology as the cause for requirement for surgery. That opinion from Dr Powell does not, however, take into account that the applicant's right hip was previously asymptomatic. Dr Powell says the applicant would likely have experienced almost identical symptoms in his right hip had he not had the accident at issue, however, there is no reason given as to why this is the case. In my view, Dr Powell has incorrectly focused on the pathology and not addressed the salient question of whether the aggravation to that pathology has been caused by the applicant’s workplace accident. Accordingly, I do not prefer his opinion.
The fact the applicant’s treating doctors believed his symptoms all related to his lumbar spine injury until months after the incident, at which time the presence of concurrent hip issues was discovered, is neither a matter within the applicant’s control nor something which ought to be held against him when assessing a question of causation.
Questions of causation in the workers compensation context must be decided on a common-sense basis after an evaluation of all the evidence, as set out by Kirby P (as he then was) in the oft-cited paragraph in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In this matter, having regard to the lay and medical evidence, for reasons already stated I am satisfied on a common-sense basis that the cause of the applicant’s ongoing hip symptomology is the aggravation caused in the fall at issue. In so finding, I acknowledge the applicant’s treating neurosurgeon Dr Damodaran’s initial view that the symptoms all related to the lumbar spine. The continuity of the applicant’s symptoms after two rounds of surgery caused Dr Damodaran to refer the applicant to Dr Della Torre, and it was at this point the aggravation of the underlying hip pathology became apparent. The symptoms suffered by the applicant in that aggravation have persisted, and I accept they give rise to the need for surgery.
In finding for the applicant, I have had regard to all of the medical opinion in this matter, and for reasons already stated I reject Dr Powell’s opinion which I find flies in the face of an asymptomatic history by the applicant regarding his hip. Nor does Dr Powell provide any reason to support his opinion the effects of any aggravation to the applicant’s hip have passed. I accept the applicant’s evidence that he suffered pain and discomfort in his groin, leg and hip after the fall and find no fault in his following the advice of the treating medical practitioners who were of the view his problems related exclusively to his lumbar spine injury.

SUMMARY

The parties agree the proposed surgery is a medical necessity. The dispute in this matter relates only to a question of causation. It follows from having found the cause of the requirement for surgery is the aggravation suffered in the fall on 21 September 2018 that the surgery is reasonably necessary as a result of that injury, and the respondent will therefore be ordered to pay the costs of and incidental to the total right hip replacement.

For the above reasons, the Commission will make the findings and orders as set out on the front page of the Certificate of Determination.

Cameron Burge
MEMBER

26 March 2021