Tsiklas v Catering Industries Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tsiklas v Catering Industries Pty Ltd [2024] NSWPIC 512
APPLICANT:	Vasilia Tsiklas
RESPONDENT:	Catering Industries Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	16 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses in respect of left total knee replacement following injury to right knee and lumbar spine; whether consequential condition in the left knee had resolved; Held – treatment is reasonably necessary as a result of the injuries sustained; respondent to pay the costs of medical or related treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s medical and associated treatment expenses pursuant to s 60 of the Workers Compensation Act1987 in respect of the left total knee replacement performed on 13 June 2023, on production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant Vasilia Tsiklas, (the applicant) was employed by Catering Industries Pty Ltd (the respondent) as a catering assistant. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at the relevant time.
In the course of her employment on 16 June 2019, the applicant slipped and fell, sustaining injury to her lumbar spine and bilateral knee injuries and/or a consequential injury to the left knee as a result of the injury to her right knee.
The applicant made a claim for weekly benefits, fees in respect of left knee reconstruction surgery and fees in relation to proposed right knee reconstruction surgery as a result of the injury on 16 June 2019.
The respondent disputed liability for the claim for the surgery to the left knee, proposed surgery to the right knee and the claim for weekly benefits.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the left knee total reconstruction surgery and associated expenses treatment was reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via video link on 5 September 2024. The applicant was represented by Mr Boris Necovski, who was instructed by Mr Deng of Spinak Solicitors. The respondent was represented by Mr Phillip Perry, who was instructed by Ms Isreal of Bartier Perry Lawyers. Ms Patterson from the insurer also attended the conciliation conference and arbitration.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 19 March 2024, and
(d)    Application to Admit Late Documents filed by the respondent on 18 March 2024.

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note the respondent submitted that the proposed surgery to the left knee was not reasonably necessary as the applicant had not injured her left knee in the work injury on 16 June 2019 and any consequential condition in the left knee had resolved.
The applicant submitted that the weight of the evidence supported a finding that the surgery to the left knee, namely, a total knee replacement, was reasonably necessary as a result of the injury on 16 June 2019.

FINDINGS AND REASONS

At the commencement of the arbitration, the applicant discontinued her claim for weekly benefits and for the proposed surgery to the right knee. The applicant advised that she recently underwent a right knee replacement and is currently in hospital. She attended the conciliation conference by mobile phone but requested that she be excused from attending the arbitration. Mr Necovski applied for an adjournment but the Division Head did not approve the request for an adjournment and the matter proceeded in the applicant’s absence.
It is not disputed that the applicant sustained injuries to the right knee and back on 16 June 2019 and subsequently developed a consequential condition in the left knee. The respondent disputed that the applicant had sustained a frank injury to her left knee on 16 June 2019.
The respondent conceded that the surgery to the left knee, namely, a total knee replacement, was reasonable and appropriate treatment for the applicant’s left knee condition but the need for surgery was not a result of the subject work injury.
The applicant made an application to amend the Application to Resole a Dispute during the arbitration and to add a further description of injury, namely, “a consequential condition in the left knee” to the Injury Description/Cause of Injury and Death section of the form. I dealt with this application on an ex-tempore basis granting the applicant leave to amend the Application to Resolve a Dispute and add that further description of injury. I should add that in making that decision I note that the Commission in not a court of strict pleading and I am satisfied that the issue of a consequential injury to the left knee had been considered and dealt with by the respondent and insurer in the Review Notice dated 22 May 2023 and by the respondent’s independent medical examiner (IME), Dr Machart, in his various reports. I am satisfied that in permitting this amendment there is no real prejudice to the respondent.

Evidence of the applicant

In a statement dated 24 November 2023, the applicant said that she was employed by the respondent as a catering assistant at St Basils. She stated that on 16 June 2029 she was leaving work “when I slipped, my right foot out in front of me, and fell onto my back; immediately feeling severe pain in my right knee and back.”
The applicant wrote:
“13. My right knee was originally injured in the workplace accident; however, I suffer from issues with my left knee due to overcompensation.
14. On 13 June 2023, I underwent a total left knee replacement with Dr Kuo at Canterbury Hospital through the private system.
15. I paid $8,350.00 out-of-pocket as the doctor recommended I have the surgery as soon as possible”.
The applicant stated that she had seen the doctor for pain in her right knee and was currently on a wait list for a right knee reconstruction.
In a State Insurance Regulatory Authority Claim Form dated 25 September 2020, the applicant described the injury on 16 June 2019 as follows: “I slipped with my right foot in front of me and then fell heavily on my back. My right knee was trapped under me. I immediately felt severe pain in my right knee and back”.

Medical reports

Medico-legal reports

In a report dated 21 February 2020, Dr Frank Machart, consultant orthopaedic surgeon, noted that he saw the applicant on 21 February 2020. Under “History”, Dr Machart wrote:
“Ms Tsiklas was employed by St Basils Catering as a catering assistant, 20 hours per week part-time work. She commenced this work in February 2017. Ms Tsiklas suffered an injury on 16 June 2019 during the course of her work. She was in the kitchen. She slipped on a slippery floor. She fell on her right knee, describing that at the same time her left knee went into hyperflexion underneath her. She rolled backwards and nearly hit her head. She experienced pain in the back and in both knees”.
Dr Machart noted that about two weeks after the injury, the applicant felt wobbly on her feet and fell directly on both knees. He wrote: “She then started to experience more severe pain in the left knee.” He noted that she denied having suffered pain in her knees before the injury. Under “Current symptoms” he noted that she had “pain predominantly in the right knee, more than the left.” On examination of the left knee, he wrote: “No local tenderness. No effusion. Full extension to 120 degrees flexion. No ligament laxity.” In respect of the right knee examination, he noted: “Moderate effusion. Tender medial joint line. Full extension to 110 degrees flexion. Moderate collateral ligament laxity. Varus deformity”.
Dr Machart noted that the X-rays of both knees on 4 November 2019 reported: “Moderate to severe osteoarthritis, predominantly in the medial compartment, tricompartmental”.
Dr Machart referred to the MRI of the left knee dated 20 September 2019 which reported: “Tricompartmental OA. Tear medial meniscus. No articular cartilage in the medial compartment”.
Dr Machart made the following diagnosis:
“The diagnostic feature is constitutional bilateral osteoarthritis and lumbar spondylosis/stenosis. These are constitutional conditions not caused by the fall. The fall caused temporary exacerbation of the pathology. It did not cause debilitating pain in several areas of the body. Sprain and bruising may have been evident at the time of the fall. The impact of the soft tissue injuries had dissipated. There is no evidence of additional pathology now, beyond the constitutional entity. The current symptoms are constitutional, were not caused by the injury and would have been evident in absence of the injury. The pre-existing arthritic condition is severe and well-defined objectively and radiologically. The impact of the injury is not defined as a structural injury and can be summarised as soft tissue bruising or strain, healed now. Ongoing symptoms are based on self-reporting, without objective evidence of structural injury. The extent of reporting debilitating pain in 3 separate areas of the body were not concordant with the pathology of injury”.
Dr Machart commented that he did not find any evidence of medial meniscal tear causing symptoms. He wrote: “Medial meniscal tears are common in presence of osteoarthritis. The latter I believe is the pathophysiology of the medial meniscal tear”.
Dr Machart wrote:
“Knee replacement is a reasonable treatment option for both knees. Reason for knee replacement is end stage osteoarthritis, as correctly diagnosed by Dr Herald. This pathology not caused by the injury. I provided reasoning on the impact of the injury above. The impact from the injury was not structural damage. Objective evidence is severe osteoarthritis, which is the more likely explanation for the ongoing symptoms and reason for surgery as opposed to impact of the injury”.
In a report dated 13 November 2020, Dr Machart noted that the left knee pain has now resolved. Under “Progress”, he wrote:
“Ms Tsiklas has not worked since the time of the injury. She reported that the severity of her condition was gradually increasing, right knee and the lumbar spine. The left knee was ok. She uses a walking stick to alleviate the pain in the lumbar spine and right knee. “
Under “Examination” Dr Machart reported:
“Right Knee
Moderate Varus. Tender around the patella. No ligament laxity, AP or collateral. Well preserved circulation. Patellofemoral pain evident on active extension without crepitus. Movement was full extension through to 105 degrees flexion.
Left knee
No tenderness. Full movement. Asymptomatic”.
Dr Machart concluded that there was evidence of osteoarthritis in the right knee and that pathology was not caused by the injury. He observed that there was a strong element of osteoarthritis and pain behaviour, which complicated the expression of injury-related pathology which was non-structural. He assessed 0% whole person impairment (WPI) of the left knee describing it as a “resolved contusion”. He assessed 2% WPI of the right knee for a patellofemoral contusion and noted that there was additional osteoarthritis which was not caused by the injury and was irrelevant to the injury.
Dr Machart noted that Dr Bodel assessed the left knee as a consequential injury and commented that consequential injury was not evident. He noted that the left knee symptoms had resolved since the time of Dr Bodel’s assessment.
In a report dated 18 March 2024, Dr Machart noted that the applicant had undergone left knee replacement on 13 July 2023. In addressing whether the left total knee replacement was reasonably necessary treatment for the pathology in the left knee, he wrote:
“No. There was injury to the left knee which had healed. There was osteoarthritis in the left knee. The osteoarthritis severity had increased from the time that I saw her, when there were no symptoms, to the time when she required a knee replacement. I did not see contribution to the need for knee replacement from the injury. The reason is advancing osteoarthritis with age and no indication that the injury caused the late deterioration”.
Dr Machart commented that osteoarthritis was a progressive disease and it was substantial when he saw the applicant in 2020. He considered that the prognosis was for gradual deterioration and this happened with advancing age and caused the need for the knee replacement. He considered that there was no evidence that the employment injury brought the need for surgery forward, noting that the symptoms in the left knee had resolved as was expected following a non-structural exacerbation. He concluded that there was no connection between the right knee and the left knee replacement. Dr Machart noted that there was an element of patellofemoral trauma but that did not cause need for knee replacement.
In a report dated 13 July 2020, Dr James Bodel, consultant orthopaedic surgeon, noted under “History relating to the Injury”:
“…she inadvertently slipped with her right foot out in front of her and she then fell heavily on her back. Her right knee was trapped underneath her and she was aware of the immediate onset of severe pain in the right knee and also in the back.”
Dr Bodel noted that she attended Canterbury Hospital the next day where X-rays were taken because she had a painful, swollen right knee. He reported that plain X-rays and MRI scan did show evidence of significant arthritic change in both knees.
Dr Bodel noted that an MRI scan of the left knee was done on 26 September 2019. He wrote: “She was developing some consequential pain in that knee and again that showed tricompartmental osteoarthritis with a significant tear of the medial meniscus. There is ‘advanced arthritic change’”.
Under “Past Medical History”, Dr Bodel noted that the applicant had been aware that she had arthritis in the knees. He noted that she had been working four hours a day, five days a week, without any difficulty and had no significant pain in either knee at that time. Dr Bodel wrote: “The right knee and to a lesser extent the left knee became symptomatic since the fall.” Under “Current complaints” he noted that the applicant had pain and swelling in the region of the right knee and lesser pain in the left knee. On examination he noted 120 degrees of flexion on the left knee, tenderness over the medial joint line on the right side but only mild tenderness on the left, an effusion in the right knee but not the left, and no ligamentous laxity.
Dr Bodel considered that the fall on 16 June 2019 caused aggravation, acceleration, exacerbation and deterioration to longstanding arthritic change principally in the right knee and it was likely she suffered a frank injury in the form of a tear of the degenerate medial meniscus in that knee at the time of the fall. He made a diagnosis of “the aggravation, acceleration, exacerbation and deterioration of a disease process in the back and both knees” caused by the fall. Dr Bodel agreed with Dr Herald that the applicant would require knee replacements and anticipated she would require a knee replacement at least in the right knee within the next three to five year and possibly in the next seven to ten years for the left knee as a consequence of the aggravated pathology in the knees.
Dr Bodel assessed 8% WPI for the right knee and 4% WPI for the left knee. He commented that the left knee was “a consequential injury which has been caused by favouring the right side after the injury to the right knee in the fall on 16 June 2019.”
In a report dated 23 February 2024, Dr Bodel she reported “increasing left knee pain which is a consequence of the original injury to the back and the right knee. She has been favouring the right side over time and it has led to ongoing pain”. He noted that the applicant had a left knee reconstruction on 13 June 2023, and she was pleased with the outcome. Dr Bodel referred to the diagnosis of constitutional bilateral osteoarthritis in both knees by Dr Machart in his report of 25 February 2020. Dr Bodel disagreed with Dr Machart’s view that the injury at work was “soft tissue bruising or strain healed now”. Dr Bodel opined that the injury was the aggravation, acceleration, exacerbation and deterioration of a disease process in the lower part of the back and the tricompartmental osteoarthritis in both knees.
Dr Bodel noted that the applicant was assessed by a Medical Assessor Anderson, on 7 July 2022, who had assessed 0% WPI for the left knee. Dr Bodel stated that he could not quite understand how that would be the case, as she has now had a total knee replacement on the left hand side.
Dr Bodel concluded that the diagnosis in relation to the left knee was the aggravation, acceleration, exacerbation and deterioration of degenerative change in the knee. He was satisfied that:
“…there is a causal connection between the incident that occurred at work and the injury and need for treatment. The injury, rather than the pathology, is the aggravation, acceleration, exacerbation and deterioration to the disease process is in the back and both knees as indicated above” [sic].

Medical Assessment Certificate

In a Medical Assessment Certificate dated 28 July 2022, Dr Tim Anderson, Medical Assessor, noted that on 16 June 2019, the applicant was leaving the complex where she worked and as she stepped off with her right foot, this slipped forward and then got caught underneath her and she came down very hard on her lower back. He noted that at the time she had a lot of pain in her lower back and right knee. He reported that as time went on, she had two other falls at home due to her right knee collapsing.
Under “Present Symptoms”, the Medical Assessor noted that the applicant had pain in her right knee. No reference to L knee. On examination, the Medical Assessor wrote:
“Lower Limbs. She walked with a heavy right sided limp and preferentially with a stick held in her right hand. Due to her size and morphology it was not possible to accurately measure the leg lengths. The thighs had the same circumference. The right calf was 1cm less in circumference than the left.
No significant features were identified with the ankles. There was some stiffness of the right hip, particularly with internal rotation.
With the knees, there was a fixed flexion deformity on the right of 10°. On the left there was a very slight fixed flexion deformity. Flexion on the right moved to 100°. On the left this was to 120°.
There was a lot of joint-line tenderness on the medial side of the right knee but none on the left. There was no knee joint swelling. There was crepitus in both knees. The knee ligaments were firm”.
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“It is evident that Mrs Tsiklas has experienced quite extensive degenerative changes in her lumbar spine and also in both of her knees. This situation was quite badly aggravated when she experienced the fall when she was trying to leave work on 16/06/19. In this fall she badly hurt her lower back and her right knee.
…
She also has significant dysfunction of the right knee complex. She mentioned that the left knee was hurting her for a while, but this seems largely to have improved and at this assessment, other than some relatively mild restriction of movement, there were no significant clinical features.
The aggravational features of her lower back and her right knee have continued and are slowly deteriorating…”

The Medical Assessor in the evaluation of permanent impairment wrote: “
“Attention is drawn to the very obvious and quite significant degenerative changes which have affected Mrs Tsiklas at her lower back and both knees. These features would have contributed to the susceptibility of further associated workplace injury”.
The Medical Assessor explained his calculation of WPI of the knees as follows:
“Knees. The knee evaluation is addressed in AMA 5 Page 537, Table 17-10. With the fixed flexion contracture of 20°, this provides a lower extremity impairment of 30%. Similarly, with the reduced range of flexion (less than 110°), this also provides a lower extremity impairment of 10°. From Page 527, Table 17-03, this converts to 12% WPI.
On the left side, she had no issues of specific concern. With the very minor fixed flexion deformity and the flexion through to 120°, there is no assessable impairment”.
The Medical Assessor when commenting on the deduction to be made for pre-existing condition, wrote:
“Attention is drawn to the state of Mrs Tsiklas’ lumbar spine and both of her knees. The radiological features amply demonstrate significant degenerative changes which have obviously been in existence for quite a long time. These features were quite badly aggravated in this fall of mid-June 2019. The aggravation features would have resulted in a significant pre-disposition to the subsequent level of pathology. I am therefore persuaded that a deduction of one-quarter for the impairment of the lumbar spine and the right knee is appropriate, since a frequently applied deduction of one-tenth would be at considerable odds with the available clinical detail. This therefore reduces the whole person impairment of the lumbar spine from 12% down to 9% and also of the right knee from 12% down to 9% as well”.

Treating doctors’ reports and notes

In a report dated 4 November 2019, Dr Jonathan Herald, treating orthopaedic surgeon, noted that the applicant had fallen landing heavily on her right knee on 16 June 2019. He reported that she initially had right knee pain and swelling and then a second fall at home about a month later as a result of her right knee giving way. He noted that this re-aggravated the right knee and she injured her back and left knee as well. He wrote: “She has had gradually increasing pain in her left knee as her right knee has settled down.”
Dr Herald on examination noted:
“Her left knee has an effusion and a 20 degree fixed flexion deformity and flexion to about 90 degrees. She has tenderness over her medial and patellofemoral joint line and her right knee has tenderness and pain over her medial patellofemoral and lateral compartments. MRI scans of her left knee show arthritis and an extensive medial meniscal tear”.
Dr Herald made a diagnosis of bilateral knee arthritis with left knee medial tear.
In a report dated 25 November 2019, Dr Herald reported that X-rays and MRI scans showed end stage arthritis in the knees. He reported that the applicant had an effusion in both knees and pain and crepitus in both knees. Dr Herald considered that the only surgical solution was a total knee replacement.
Dr Simon McKechnie, treating neurosurgeon, in a report dated 10 February 2020, noted that the applicant had a work related injury on 16 June 2019, when she suffered a slip and fall and immediately complained of lower back pain and a painful swollen right knee. He noted that the applicant subsequently developed left knee pain and had another fall a few weeks later.
Dr Kuo, treating orthopaedic surgeon, in a report dated 17 May 2023, noted that the applicant had longstanding pain in both knees due to osteoarthritis. Dr Kuo wrote: “The right knee was troubling her following a fall whist she was working in a nursing home four years ago. She now has more severe pain on the left side, this being localised to the medial and patellofemoral area.”
Dr Kuo noted that she stood with varus of the knee and walked with marked antalgia. On examination the left knee was very stiff with flexion from 10 degrees through to 110 degrees accompanied by crepitus. He reported that the knee was stable and she was very tender in the medial compartment. He noted that the right knee was also stiff with flexion to 110 degrees from 20 degrees of fixed flexion, and movements were accompanied by crepitus but no instability.
Dr Kuo reported that the X-rays showed advanced medial compartment osteoarthritis bilaterally and the patella femoral joints were significantly worn. He placed her on the waiting list for surgery, namely, a left knee replacement.
In a report dated 3 October 2023, Dr Kuo noted that the applicant had returned to see him three months post left knee replacement. Dr Kuo reported that the applicant recovered well from the operation and was relatively pain free. He noted that her right knee was worrying her in a similar manner and X-rays showed Grade 4 osteoarthritis in the medial compartment and patellofemoral joint.
The clinical notes and records from Yagoona Family Healthcare included the following entries:
(a)    under past Medical History “2016 Osteoarthritis – knee (Bilateral)”.
(b)    In an entry dated 5 September 2019, Dr Abdelgayoom reported a history of “R knee pain and swelling following a fall at work, resulted in a marked large size suprapatellar effusion and synovitis”.
(c)    In an entry dated 12 September 2019, Dr Abdelgayoom reported: “Pain and swelling, inability to fully extend left knee, an acute meniscal tear is suspected. On examination he noted: “Knee: tender, no fracture, restricted ROM, not hot, swollen, not red.”
(d)    In an entry dated 18 September 2019, Dr Abdelgayoom reported right knee pain, back pain and an acute distress disorder.
(e)    In an entry dated 24 September 2019, Nafisha Anwar, chiropractor, noted:
“Left knee has been sore for the last 2 weeks, has been putting extra pressure on the leg and feels like it has been giving way. Has been approved to get MRI for the L knee… Reduced ROM and joint tenderness on palpation of the L knee unable to fully extend and rotate knee.”
(f)    In an entry dated 30 September 2019, Dr Abdelgayoom noted a review of an MRI of the left knee as follows: “Tricompartmental OA. Significant tear medial meniscus. Advanced arthritic changes, most marked at the patellofemoral joint and medial compartment”.
(g)    In an entry dated 23 October 2019, Dr Abdelgayoom noted: “bilateral knee pain”.
(h)    In an entry dated 28 October 2019, Dr Abdelgayoom noted: “using walking stick since last week …marked swelling on the L knee with P on WB”.
(i)    In an entry dated 13 January 2020, Dr Abdelgayoom noted: “Knee pain improving VAS6/10”.
(j)    In an entry dated 4 May 2020, Dr Abdelgayoom noted: “LB and R knee has been stiff and painful joint line tenderness. Tx: R knee mobilization loaded isometric knee exercises.”
(k)    In an entry dated 28 September 2020, Nafisha Anwar noted: “LBP chronic, had a fall about a month ago, pain aggravated then.”
(l)    In an entry dated 27 November 2020, Dr Abdelgayoom noted: “Worsening L knee pain”.
(m)     In an entry dated 17 September 2021, Dr Abdelgayoom noted: “Worsening L knee pain. Busy moving houses. Takes Brufen bd. No one to help.”
(n)    In an entry dated 21 September 2021, Dr Abdelgayoom noted: “Bilateral osteoarthritis – Knee.”
(o)    In an entry dated 24 September 2022, Dr Abdelgayoom noted: “Chronic LBP and b/l knee pain. Knee aggravated now as she has been leaning on L side with walking stick”.
In a report dated 4 November 2019, Dr Kang, radiologist, noted X-ray bilateral knees had been carried out. The clinical history was described as osteoarthritis with medial meniscal tear. He found:
“Bilateral genu varus noted. Moderate to severe loss of joint space involving the medial femorotibial compartments bilaterally with marginal osteophyte formation. Minimal degenerative changes of the patellofemoral compartments. Small joint effusion is noted.”
In a report of MRI scan of the left knee dated 26 September 2019, Dr Hazan, radiologist, under “Clinical Details” noted: “Pain and swelling, inability to extend the left knee, acute meniscal tear suspected. Patient indicates injured the right knee and favouring the left knee since the injury.” Dr Hazan concluded: “Tricompartmental OA. Significant tear medial meniscus. Advanced arthritic changes, most marked at the patellofemoral joint and medial compartment.”
Dr Safwat Saba, general practitioner (GP), in a referral to Dr Kuo dated 26 April 2023 noted that Mrs Tsiklas had bilateral knee degeneration and a large left Baker’s cyst and wanted to discuss further management. Dr Saba enclosed imaging reports dated 20 April 2023 from Dr Alamgir, radiologist, of X-ray and ultrasound bilateral knees.

Discussion

The applicant bears the onus of proof in establishing the causal nexus between the injury on 16 June 2019 and the knee replacement surgery to the left knee on 13 July 2023.
The matter to be determined is whether the surgery performed by Dr Kuo, namely, a left total knee replacement is reasonably necessary as a result of the injury on 16 June 2019.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, his Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”. In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non-litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. 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) 47ALJR 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]; 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.
58. 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.”
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Mr Perry, however, concedes that there was no dispute that the surgery performed by Dr Kuo, namely, a left total knee replacement, was reasonably necessary for the condition in the applicant’s left knee.

Frank injury to the left knee

The respondent disputes that the applicant had sustained a frank injury to the left knee on 16 June 2019. The respondent concedes that there had been a consequential injury to the left knee following the injury to the right knee and lumbar spine on 16 June 2019 but submits that consequential condition in the left knee had resolved and had not contributed to the need for the surgery to the left knee on 16 July 2023. The respondent relies on the opinions of Dr Machart and the Medical Assessor, Dr Anderson.
In relation to the issue of whether there was a frank injury to the left knee on 16 June 2019, the applicant refers to the report of Dr Machart dated 21 February 2020. Dr Machart recorded the following history on the fall on 16 June 2019:
“She was in the kitchen. She slipped on a slippery floor. She fell on her right knee, describing that at the same time her left knee went into hyperflexion underneath her. She rolled backwards and nearly hit her head. She experienced pain in the back and in both knees”.
However, it appears that this was the only history recorded that describes the left knee going into hyperflexion underneath her as she fell. The applicant, in her statement dated 16 November 2023, states that when she fell her right foot went out in front and she fell on her back immediately feeling severe pain in her right knee and back. She makes no reference to her left knee in the description of the fall on 16 June 2019. Further at paragraph 13, the applicant wrote: “My right knee was originally injured in the workplace accident; however, I suffer from issues with my left knee due to overcompensation”.
In the State Insurance Regulatory Authority Workers Injury Claim form dated 24 September 2020, the applicant describes the injury as follows: “I slipped with my right foot in front of me and then fell heavily on my back. My right knee was trapped under me. I immediately felt severe pain in my right knee and back.” The applicant describes the injury as “Aggravation, acceleration, exacerbation and deterioration of a disease process in back and both knees.”.
Dr Bodel, in his report of 13 July 2020, took a history of as injury on 16 June 2019 when the applicant inadvertently slipped with her right foot out in front of her and then she fell heavily on her back. He noted that she was aware of the immediate onset of severe pain in the right knee and back.
Dr Herald, in a report dated 4 November 2019, took a history of the applicant falling and landing heavily on her right knee on 16 June 2019.
Dr McKechnie, in a report dated 10 February 2020, took a history of a slip and fall at work on 16 June 2019 with immediate complaints of lower back pain and a painful swollen right knee.
In the Medical Assessment Certificate dated 28 July 2022, the Medical Assessor took a history of the fall on 16 June 2019 when the applicant’s right foot slipping forward and then getting caught underneath her and coming down very hard on her lower back. He noted that at the time she had a lot of pain in her lower back and right knee.
Dr Kuo, in a report dated 17 May 2023, noted that the applicant’s right knee was troubling her after she had a fall while working.
Dr Abdelgayoom, treating GP, in his clinical notes dated 5 September 2019, reported: “R knee pain and swelling after a fall at work”. He noted that there was a marked large sized suprapatellar knee effusion and synovitis, right hip pain and right sided lower back pain.
Dr Machart’s report that the applicant’s left knee went into hyperflexion underneath her as she fell on 16 June 2019 and experienced pain in both knees is inconsistent with the applicant’s statement, her claim form and the medical reports referred to above and the GP’s notes. I am satisfied that either the applicant provided an incorrect history, or Dr Machart misunderstood the history provided to him by the applicant or took down the history incorrectly. I am satisfied that the applicant did not sustain a frank injury to the left knee in the fall on 16 June 2019.

Consequential condition in the left knee

The respondent submits that the consequential condition in the left knee has resolved and did not materially contribute to the need for the total left knee replacement surgery that Dr Kuo performed on 16 July 2023.
The applicant submits that the consequential condition had not resolved and refers to the opinions of Dr Bodel, Dr Herald and Dr Kuo.
The applicant stated that she suffers from issues with her left knee due to overcompensation. However, she did not provide any details concerning when these issues started, how she “overcompensated”. The applicant did not refer to any falls that occurred after 16 June 2019 due to her right knee giving way and what the effect of any such fall was, or what, if any, treatment was sought after any fall.

A number of complaints relating to the left knee are recorded in the clinical notes of Yagoona Family Healthcare. Under “Past Medical History” it was noted: “2016 Osteoarthritis – knee (Bilateral)”. It appears that the clinical notes do not commence until 5 September 2019, some two and a half months after the fall on 19 June 2019, when Dr Abdelgayoom reported a history of “R knee pain and swelling following a fall at work, resulted in a marked large size suprapatellar effusion and synovitis”.
The first reference, apart from the 2016 reference under past history, to the left knee was on 12 September 2019, when Dr Abdelgayoom reported pain and swelling, inability to fully extend left knee, an acute meniscal tear is suspected. On examination he noted: “Knee: tender, no fracture, restricted ROM, not hot, swollen, not red.” Dr Abdelgayoom did not explain the cause of the pain and swelling in the left knee or of any acute meniscal tear. He did not state that it was related to the work injury on 16 June 2019. On 18 September 2019, Dr Abdelgayoom reported that the reason for contact was right knee pain, back pain and an acute distress disorder and made no reference to the left knee.
On 24 September 2019, Nafisha Anwar, chiropractor, noted: “Left knee has been sore for the last 2 weeks, has been putting extra pressure on the leg and feels like it has been giving way. Has been approved to get MRI for L knee…Reduced ROM and joint tenderness on palpation of the L knee unable to fully extend and rotate knee.”
On 30 September 2019, Dr Abdelgayoom noted a review of MRI the left knee as follows: “Tricompartmental OA. Significant tear medial meniscus. Advanced arthritic changes, most marked at the patellofemoral joint and medial compartment”. On 23 October 2019, Dr Abdelgayoom noted: “bilateral knee pain”.
On 28 October 2019, Dr Abdelgayoom noted: “using walking stick since last week …marked swelling on the L knee with P on WB”.
There were further consultations with Dr Abdelgayoom on 6, 11 and 18 November 2019 in which there was reference to the left knee. There was reference to a case conference on 6 December 2019 but no reference to the left knee. On 13 January 2020, Nafisha Anwar noted: “Knee pain improving VAS6/10”, but did not identify whether this was the right or left knee.
Dr Herald, in a report of 4 November 2019, noted that the applicant initially had right knee pain and swelling and then a second fall at home about a month later as a result of her right knee giving way. He noted that she re-aggravated the right knee and she injured her back and left knee as well and “had gradually increasing pain in her left knee as her right knee has settled down.”
On examination, Dr Herald noted: “Her left knee has an effusion and a 20 degree fixed flexion deformity and flexion to about 90 degrees. She has tenderness over her medial and patellofemoral joint line... MRI scans of her left knee show arthritis and an extensive medial meniscal tear”. Dr Herald made a diagnosis of bilateral knee arthritis with left knee medial tear.
Dr McKechnie, in a report dated 10 February 2020, noted that the applicant had a slip and fall at work on 16 June 2019 and immediately complained of lower back pain and a painful swollen right knee. He reported that the applicant subsequently developed left knee pain and had another fall a few weeks later.
Dr Machart, in his report dated 21 February 2020, noted that about two weeks after the injury on 16 June 2019, the applicant felt wobbly on her feet, fell directly on both knees and then started to experience more severe pain in the left knee. On examination of the left knee, he found: “No local tenderness. No effusion. Full extension to 120 degrees flexion. No ligament laxity”.
From Dr Machart’s examination findings, it appears that the effusion in the left knee, which Dr Herald found on examination on 4 November 2019, had resolved by the time of Dr Machart’s examination in February 2020.
Dr Machart wrote:
“Sprain and bruising may have been evident at the time of the fall. The impact of the soft tissue injuries had dissipated. There is no evidence of additional pathology now, beyond the constitutional entity. The current symptoms are constitutional, were not caused by the injury and would have been evident in absence of the injury”.
Dr Machart considered that the pre-existing arthritic condition was severe and well-defined objectively and radiologically. He expressed the view that the impact of the injury was not defined as a structural injury and could be summarised as soft tissue bruising or strain, now healed. Dr Machart commented that he did not find any evidence of medial meniscal tear causing symptoms and believed that as medial meniscal tears were common in the presence of osteoarthritis, this was the pathophysiology of the medial meniscal tear.
Dr Marchart expressed the view that this pathology was not caused by the injury, which did not result in structural damage. He stated that the objective evidence was severe osteoarthritis, which was the more likely explanation for the ongoing symptoms and reason for surgery as opposed to impact of the injury.
Dr Machart has based his diagnosis and opinion on an incorrect history, that is, a fall onto the left knee on 16 June 2019. He made a diagnosis of soft tissue bruising or strain as a result of a fall onto the left knee. He did not consider whether there had been an aggravation, acceleration, exacerbation or deterioration of the pre-existing osteoarthritis in the left knee as a result of overcompensation and favouring the right knee after the fall on 16 June 2019.
Dr Bodel, in his report of 13 July 2020, noted: “The right knee and to a lesser extent the left knee became symptomatic since the fall”. He reported that an MRI scan of the left knee was performed on 26 September 2019 and wrote: “She was developing some consequential pain in that knee and again that showed tricompartmental osteoarthritis with a significant tear of the medial meniscus. There is ‘advanced arthritic change’”.
On examination, Dr Bodel noted 120 degrees of flexion on the left knee, tenderness over the medial joint line on the right side but only mild tenderness on the left, an effusion in the right knee but not the left, and no ligamentous laxity. From Dr Bodel’s examination findings, it is clear that the effusion in the left knee which Dr Herald found on examination on 4 November 2019 had resolved but the appellant still had mild tenderness over the medial joint line in the left knee and a minor restriction in movement.
Dr Bodel made a diagnosis of “the aggravation, acceleration, exacerbation and deterioration of a disease process in the back and both knees caused by the fall”. He opined that the left knee was “a consequential injury which has been caused by favouring the right side after the injury to the right knee in the fall on 16 June 2019.”
In his report dated 13 November 2020, Dr Machart noted that the left knee pain “has now resolved”. He noted that the applicant reported that the severity of her condition was gradually increasing in right knee and the lumbar spine., but the left knee was “OK”. On examination of the left knee, he found no tenderness, full movement and that it was asymptomatic. Dr Machart assessed 0% WPI of the left knee describing it as a “resolved contusion”. However, Dr Machart still based his opinion on a history of a fall onto both knees on 16 June 2019, such fall being he mechanism of injury and his diagnosis being a contusion caused in the fall.
The applicant continued to attend Yagoona Family Healthcare regularly in 2020 and there are some references in 2020 to back pain and on 4 May 2020 a reference to right knee pain. On 27 November 2020, Dr Abdelgayoom noted: “Worsening L knee pain”.
In 2021 there were references to back pain but no reference to the left knee until 17 September 2021, when Dr Abdelgayoom noted “Worsening L knee pain. Busy moving houses. Takes Brufen bd. No one to help.” On 21 September 2021, Dr Abdelgayoom noted: “Bilateral osteoarthritis – Knee.”
Medical Assessor Anderson, examined the applicant on 5 July 2022. While the Medical Assessor found that the fall on 16 June 2019 had badly aggravated the quite extensive degenerative changes in the lumbar spine and right knee, he noted that she mentioned that the left knee was hurting her for a while, but this seems largely to have improved and at this assessment, other than some relatively mild restriction of movement, there were no significant clinical features. He noted that the aggravational features of her lower back and her right knee have continued and are slowly deteriorating
The Medical Assessor explained his calculation of WPI of the left knee as follows: “On the left side, she had no issues of specific concern. With the very minor fixed flexion deformity and the flexion through to 120°, there is no assessable impairment”. He assessed 12% WPI of the lumbar spine and 12% WPI of the right knee.
On 10 September 2022, Nafisha Anwar noted that the applicant had chronic right sided low back pain and difficulty with walking and a fall six months ago. She noted: “reduced R knee ROM”.
On 24 September 2022, Dr Abdelgayoom noted: “Chronic LBP and b/l knee pain. Knee aggravated now as she has been leaning on L side with walking stick”. The entry on 24 September 2022 was the last entry in the clinical notes from Yagoona Family Healthcare.
Dr Kuo, in a report dated 17 May 2023, noted that the right knee was troubling the applicant following a fall whilst she was working in a nursing home four years ago, but she now has more severe pain on the left side, this being localised to the medial and patellofemoral area. On examination he reported that she stood with varus of the knee, walked with marked antalgia, and the left knee was very stiff with flexion from 10 degrees through to 110 degrees accompanied by crepitus. He noted that the knee was stable and she was very tender in the medial compartment. Dr Kuo reported that the X-rays showed advanced medial compartment osteoarthritis bilaterally and the patella femoral joints were significantly worn.
I am satisfied that by 12 September 2019, the applicant was experiencing pain and swelling in her left knee as a result of putting extra pressure on the left leg following the injury to her right knee and back on 16 June 2019. She reported to some doctors that after the injury on 16 June 2019 she had fallen due to her right leg giving way, although this was not addressed in her statement or in Dr Bodel’s reports. There was no evidence that following any such fall she immediately sought medical treatment for an injury to the left knee. On balance, I am not persuaded that the applicant sustained any serious injury to the left knee in any fall following the work injury on 16 June 2019 because she did not seek medical treatment, give details such incidents in her statement, or report those falls to Dr Bodel.
I accept that the applicant continued to complain of pain and problems in the left knee in late 2019. On 26 September 2019, Dr Hazan noted that the appellant indicated that she had injured the right knee and was favouring the left knee since the injury. On 4 November 2019, the applicant saw Dr Herald, who found on examination an effusion in the left knee, a 20 degree fixed flexion deformity, flexion to about 90 degrees, tenderness over her medial and patellofemoral joint line. Dr Herald noted that MRI scans of her left knee show arthritis and an extensive medial meniscal tear.
However, following the consultation with Dr Herald in November 2019, there was no specific references to the left knee in the clinical notes of Yagoona Family Healthcare or any other report until February 2020.
Dr McKechnie saw the applicant on 10 February 2020 and focused on the applicant’s back injury. It appears that Dr McKechnie did not examine the knees.
Dr Machart, on 20 February 2020, examined the left knee and found: “No local tenderness. No effusion. Full extension to 120 degrees flexion. No ligament laxity”.
The next reference to the left knee was on 13 July 2020 when Dr Bodel examined the applicant. He noted: “The right knee and to a lesser extent the left knee became symptomatic since the fall”. On examination Dr Bodel noted 120 degrees of flexion on the left knee, tenderness over the medial joint line on the right side but only mild tenderness on the left, an effusion in the right knee but not the left, and no ligamentous laxity.
There are three references to the left knee by the GP between Dr Bodel’s examination on 13 July 2020 and the examination by the Medical Assessor on 5 July 2022. On 27 November 2020, Dr Abdelgayoom noted: “Worsening L knee pain”. On 17 September 2021, he noted “Worsening L knee pain. Busy moving houses. Takes Brufen bd. No one to help.” On 21 September 2021, Dr Abdelgayoom noted: “Bilateral osteoarthritis – Knee.”
The Medical Assessor assessed 0% WPI in respect of he left knee following an examination on 5 July 2022. The Medical Assessor noted that the applicant mentioned that the left knee was hurting her for a while, but “this seems largely to have improved and at this assessment, other than some relatively mild restriction of movement, there were no significant clinical features”. The Medical Assessor did not note any complaint of pain in the left knee and stated that the applicant had no issues of specific concern in terms of the left knee. However, the Medical Assessor while noting that the left knee had improved, did not state that the condition had resolved and there was on examination some mild restriction of movement.
In an entry dated 24 September 2022, Dr Abdelgayoom noted: “Chronic LBP and b/l knee pain. Knee aggravated now as she has been leaning on L side with walking stick.” There are no clinical notes from any GP after 24 September 2022.
Dr Kuo, on 17 May 2023, noted that the applicant had longstanding pain in both knees due to osteoarthritis. Dr Kuo wrote: “The right knee was troubling her following a fall whist she was working in a nursing home four years ago. She now has more severe pain on the left side, this being localised to the medial and patellofemoral area.” Dr Kuo performed left total knee replacement on 13 June 2023.
While Dr Machart found that the left knee condition caused by the subject injury had resolved, this was based on an incorrect history of a fall onto the right knee with the left knee extending under her on 16 June 2019, while in fact the applicant had only fallen onto her right knee and then onto her back. Dr Machart’s diagnosis of soft tissue bruising and strain was made on the basis that the injury was a fall directly onto the left knee on 16 June 2019. Dr Machart did not accept that the injury was a consequential condition that developed as a result of overcompensation and favouring the right leg after the fall on 16 June 2019.
Dr Bodel’s diagnosis is the aggravation, acceleration, exacerbation and deterioration of a disease process in the back and “both knees caused by the fall”. He explained that the left knee was “a consequential injury which has been caused by favouring the right side after the injury to the right knee in the fall on 16 June 2019.”
In the report of 18 March 2024, Dr Machart was asked to address whether the left knee replacement treatment was reasonably necessary for the pathology in the left knee consequential condition and stated that the reason is advancing osteoarthritis with age and that there “no indication that the injury caused the late deterioration”. Again, this opinion was based on an incorrect history of a fall onto the right knee with the left knee extending under her on 16 June 2019. Dr Machart found only an acute injury to the left knee, but did not properly consider whether the favouring of the right leg, change of gait, use of a walking stick due to the right knee injury and back injury had caused a consequential condition in the left knee, that being aggravation, acceleration, exacerbation and deterioration of pre-existing osteoarthritis in the left knee.
I prefer the opinion expressed by Dr Bodel to that given by Dr Machart. As noted above, Dr Machart focused upon an incorrect history of the mechanism of injury to the left knee, so little weight can be placed on his diagnosis and opinion concerning whether the need for surgery to the left knee was reasonably necessary as a result of the injury to the right knee on 16 June 2019.
I accept that the effusion in the left knee resolved sometime after the examination by Dr Herald in November 2019. I also accept that the Medical Assessor in the Medical Assessment Certificate dated 28 July 2022 also found that the left knee condition had improved to the point that there were no significant features in the left knee and no assessable impairment. However, I am satisfied on balance that the appellant continued to favour the right leg and her symptoms continued to some degree depending on her level of activity. On 24 September 2022, Dr Abdelgayoom noted that the appellant had chronic low back pain and bilateral knee pain. He wrote: “Knee aggravated now as she has been leaning on L side with walking stick.”
I accept that the pre-existing osteoarthritis in the left knee is a progressive condition. However, the injuries to the right knee and lumbar spine which occurred on 16 June 2019 did not resolve and indeed the Medical Assessor was of the view that “the aggravational features of her lower back and her right knee have continued and are slowly deteriorating”.
I am satisfied that the applicant continued to favour her right leg and this caused gradually increasing problems in her left knee which already had advanced arthritic change at the time of the work injury. However, the applicant was still able to perform her work duties as a catering assistant at the time of her injury and was not at the stage where she required a total knee replacement in the left knee. I am satisfied that the weight of the evidence supports a finding that the aggravation, acceleration, exacerbation and deterioration of the osteoarthritis in the left knee had not resolved and made a material contribution to the need for surgery to the left knee on 13 June 23.
I order that the respondent pay the applicant’s medical and associated treatment expenses pursuant to s 60 of the Workers Compensation Act1987 in respect of the left total knee replacement performed on 13 June 2023, on production of accounts, receipts and/or Medicare Notice of Charge.

[2024] NSWPIC 512

16 September 2024