Valenzuela v State of NSW (Central Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Valenzuela v State of NSW (Central Coast Local Health District) [2022] NSWPIC 409
APPLICANT:	Mitzy Valenzuela
RESPONDENT:	State of NSW (Central Coast Local Health District)
MEMBER:	Rachel Homan
DATE OF DECISION:	26 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for costs of and incidental to proposed left knee arthroscopy and meniscal repair; injury to lumbar spine accepted; whether consequential left knee condition; pre-existing asymptomatic degenerative patellofemoral pathology; complaints of shooting pain and weakness in left leg causing knee to give way following lumbar surgery; whether applicant’s evidentiary onus discharged; Held — evidence to be considered as a whole; evidentiary onus discharged; award in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential left knee condition as a result of the injury on 11 September 2018. 2. The left knee arthroscopy and meniscal repair proposed by Dr Stuart Gray is reasonably necessary as a result of the injury. The Commission orders: 3. The respondent to pay the costs of and incidental to the left knee arthroscopy and meniscal repair, as proposed by Dr Stuart Gray, in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Mitzy Valenzuela (the applicant) was employed by the State of NSW (Central Coast Local Health District) (the respondent) as a nurse at Gosford Hospital when she sustained an injury to her lower back on 11 September 2018. Liability for that injury is not in dispute.
The applicant claims that she has sustained a consequential condition at her left knee as a result of the injury to her lower back. Approval for a left knee arthroscopy and meniscal repair has been sought from the respondent’s insurer by the applicant’s orthopaedic surgeon, Dr Stuart Gray.
Liability for the consequential left knee condition was disputed by the insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 22 July 2021. The insurer relied on an expert medicolegal opinion provided by Dr John Bosanquet, who considered that the symptoms in the applicant’s left knee were attributable to pre-existing degenerative changes unrelated to employment, or the injury on 11 September 2018.
That decision was maintained following internal review pursuant to s 287A of the 1988 Act on 22 February 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 4 May 2022. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the left knee surgery proposed by Dr Gray.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on the Microsoft Teams platform on 18 July 2022. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Mr Christian Hobbs. The respondent was represented by Mr Paul Stockley of counsel, instructed by Mr Brad Quillan. A representative from the insurer was also present
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition at her left knee as a result of the injury on 11 September 2018, and
(b) whether the left knee arthroscopy and meniscal repair proposed by Dr Gray is reasonably necessary as a result of the injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an application to admit late documents lodged by the respondent on 12 July 2022.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 11 March 2022.
The applicant described the injury to her lumbar spine on 11 September 2018 and said that she experienced sudden, severe pain in her back and right leg whilst changing an adult patient’s nappy.
The applicant came to surgery to her lower back at L5/S1 performed by Dr Marc Coughlan on 19 September 2019.
Despite the surgery, the applicant continued to experience ongoing symptoms associated with the injury including increasing heaviness and weakness in her legs, particularly the left leg. These symptoms included sudden and unexpected episodes of the left leg locking and giving way.
The applicant reported this to her general practitioner, who arranged an MRI investigation. Due to ongoing pain and symptoms in the applicant’s left knee, the applicant was referred to orthopaedic specialist, Dr Gray. Dr Gray indicated to the applicant that she had injured her left knee by tearing her meniscus and sustaining other damage to the knee. Dr Gray recommended a left knee arthroscopy.
The applicant wished to undergo the arthroscopy to alleviate the symptoms in her left knee.

Treating medical evidence

On 11 November 2014, a general practitioner, Dr Jayashree, referred the applicant to Dr Marc Coughlan describing lower back pain for a number of years. The applicant was experiencing a “click” in the back and felt her leg to be heavy.
A letter of referral to Dr Coughlan, dated 6 November 2018, from another general practitioner, Dr Layth George, noted that the applicant was experiencing pain in her lower back with shooting pain down the right leg.
Dr Coughlan saw the applicant on 23 February 2019. Dr Coughlan noted that he had previously seen the applicant in 2015. The applicant now reported experiencing significant, ongoing lower back pain. The applicant’s pain was mostly on the left side but did go across to the right side. Dr Coughlan suggested conservative treatment but advised that if the applicant remained symptomatic and severely incapacitated, an L5/S1 anterior lumbar interbody fusion was recommended.
On 8 June 2019, Dr Coughlan reported that authorisation from the respondent’s insurer to undergo an L5/S1 anterior fusion had been sought. Operation notes prepared by Dr Coughlan indicated that the surgery was performed on 19 September 2019.
Physiotherapist, Mr Damien Wilson, noted in a report to Dr Coughlan on 7 November 2019 that:
“She reported 2-3 occasions of "electrical' pain shooting bilateral to her feet that resolved within a few minutes and numb feet when laying in bed on 2 occasions that lasted 5 minutes. She was quite concerned about these symptoms. I explained this is most likely due to the swelling and will settle.”
On 27 March 2020, Dr Coughlan reported that the applicant was doing very well with her lumbar spine and had much improvement in her back pain. Dr Coughlan noted:
“She complains of a pulling sensation on the left leg but on her CT scans the left S1 and L5 nerve roots look very capacious.”
On 8 September 2020, Dr George, prepared referrals for an X-ray of the left knee and MRI scan of the left knee, in which the presenting problem was described as follows:
“Workers compensation case. She sustained injury left knee when her leg collapsed to due suden pain in the left lower lumbar spine shot to the leg. She has been c/o knee giving way and painful on full WB. She has restricted extension and flexion. Could you arrange for xray of the left knee and MRI scan of the left knee to assess for any internal injury to ACL or menisci?”
In a referral to orthopaedic surgeon, Dr John Morton, dated 17 November 2020, Dr George noted:
“Following surgery on her L5/S1 ATLIF she felt weakness in the left lower limb and knee collapsed and twisted her knee. MRI of knee showed lateral meniscal tear, see attached MRI report.”
Dr Morton prepared a report for Dr George on the 30 November 2020. Dr Morton made a diagnosis of “flare of previously asymptomatic long-standing left knee patellofemoral osteoarthritis”. Dr Morton said,
“There was also some confusion regarding her left knee.
I had a cursory review of the knee. This showed a moderate effusion, early genu valgus and patellofemoral arthritis. The MRI scan showed advanced patellofemoral long-standing changes. Her recent episode of locking was probably due to the patellofemoral arthritic changes. I believe this should be treated expectantly.”
Around this time, the WorkCover Certificates of Capacity issued by Dr George described a secondary injury to the left knee due to:
“lumbar pain shot down to the left leg, L knee collapsed.”
Weakness in the left leg following the back surgery was mentioned in a referral from Dr George to Dr Lewis Holford, dated 12 January 2021.
Dr Stuart Gray saw the applicant on 6 May 2021 and took a history as follows:
“She had back surgery in September 2020 and afterwards was getting a lot of heaviness and shooting pain down her left leg. Shortly after the left knee locked and she tended to give way in that knee. This occurred while walking. She describes some sharp anterior type pain and quite significant posterior ache. It is worse with walking and she feels unstable, as if it is going to collapse into flexion and valgus deformity. She gets some night symptoms and does get swelling, giving way and catching episodes. She struggles with any bending activity and walking is restricted to
10-15 minutes on that left knee. She takes some Panadol for her symptoms. She still gets back and L5 nerve root symptoms, although to a much smaller degree. She has had no previous knee problems prior.”
On examination, Dr Gray found a slight valgus alignment to the left knee. There was an effusion present and tenderness around the patella and both medially and laterally. There was significant patellofemoral crepitus and a positive McMurray’s test. Loading was uncomfortable, either medially or laterally.
Dr Gray reviewed the radiological investigations and noted patellofemoral wear seen on
X-ray. An MRI showed patellofemoral wear, spurs and also a lateral meniscus tear. Dr Gray gave the opinion:
“Mitzy Valenzuela's symptoms appear to have come on after her back surgery and I was concerned that after her back surgery with increasing leg heaviness and weakness this has caused exacerbation of her patella symptoms and also a lateral meniscus tear. She is weaker since this and that can increase the load on the patellofemoral compartment.”
Dr Gray recommended conservative treatment but noted that the applicant might require a left knee arthroscopy.
In a report dated 22 July 2021, Dr Gray recorded that the applicant was booked for a left knee arthroscopy at Gosford Hospital. The plan was to debride some spurs as well as possible meniscal tear.
Dr Gray prepared a report for the applicant’s solicitors, dated 24 August 2021. Dr Gray was asked for a history and stated that after the lumbar surgery performed by Dr Coughlan,
“…. she felt increasing left leg heaviness as well as shooting pain down the leg. She felt the leg was weak and tended to collapse. This made it increasingly difficult to mobilise and walking was restricted to 10 to 15 minutes on that left leg. She also has had constant left knee pain since that time. The pain is over the anterior aspect of the left knee as well as some posterior aching type pain. It is more sharp anteriorly. She also gets swelling giving way and some catching episodes. Bending activities are particularly difficult.”
With regard to the decision to proceed to surgery, Dr Gray reported:
“As her symptoms were still persisting and an MRI had suggested significant patellofemoral osteoarthritis but also a small lateral meniscal tear. She was booked for a left knee arthroscopy to address the lateral meniscus as well as removing the lateral patella spur and possibly doing a lateral release at the same time.”
Asked to comment on the causal relationship between the surgery and the injury to the lumbar spine, Dr Gray responded:
“Ms Valenzuela did struggle after her back surgery and did have some left leg weakness and this appeared to cause some catching and giving way to her left leg. While this did appear to exacerbate her left knee, however she already had significant left knee patellofemoral wear, as shown by the MRI in November 2020.
The patellofemoral arthritis is long-standing and usually exacerbation of this is going to be relatively short-term, especially after the strength and ROM of her knee recovers as she improves her strength after her back surgery.
…
Ms Valenzuela has had ongoing left knee pain and while some of her symptoms are exacerbated by her back, I would expect much of the left knee symptoms to improve. There was a small lateral meniscus tear which may cause some symptoms but much of her disability is likely due to her long-standing patellofemoral arthritis.”
On 6 April 2022, Dr Gray requested approval from the respondent’s insurer for the applicant to undergo a left knee arthroscopy and meniscal repair.

Dr Bodel

The applicant relies on a medico-legal report prepared by orthopaedic surgeon, Dr James Bodel, dated 5 October 2021.
Dr Bodel took a history of intermittent lower back pain since about 2008, including the most recent episode whilst on night duty on 11 September 2018. Dr Bodel recorded that in this episode, the applicant experienced sudden, severe pain in the back and “left” leg pain.
Dr Bodel noted that surgery was performed by Dr Coughlan about a year after the injury. The applicant’s pain had improved following the surgery, but the applicant had developed left-sided symptoms, whereas the right leg pain had been the main area of pain preoperatively.
With regard to the left knee, Dr Bodel noted:
“She also has localised pathology in the left knee and has been seen by Dr Stuart Gray, who has diagnosed a medial meniscal tear. She also saw Dr John Morton, who was of the view that this was not work related and Dr Gray has put her on the public waiting list. She has not had the surgery done at this stage because of the Covid-19 restrictions on elective surgery. She cannot recall any specific injury to the left knee, although she did have a lot of pain in the left leg post-operatively and the left leg generally had become increasingly troublesome. She needs to have the arthroscopy done as soon as possible to improve function.”
Dr Bodel recorded that the applicant’s current complaints included left knee pain, catching and locking in the knee and the knee could give way when walking down stairs or on uneven ground.
Dr Bodel recorded that there were no X-rays or other tests available for review and performed an examination via telehealth. Dr Bodel noted the report of Dr Gray, dated 6 May 2021, as well as treatment reports from Dr Coughlan and WorkCover certificates. Dr Bodel gave the opinion:
“The left knee condition in my view is causally related to the back injury. Post-operatively, one year after the injury from September 2018 (in September 2019), she had the anterior lumbar interbody fusion. Her back and right leg improved but the left leg worsened. She then had episodes of locking and giving way in that left leg and I am satisfied that this has arisen as a consequence of pathology arising in the lower part of the back and causing injury to the left leg. I am satisfied that there is a causal link between the left knee injury and the ongoing problems in the back and at the very least there has been aggravation, acceleration, exacerbation and deterioration of the known pathology in the left knee which warrants the surgery as recommended by Dr Gray.”

Dr Bosanquet

The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr John Bosanquet, dated 15 August 2019 and 18 June 2021.
In the first report, Dr Bosanquet noted that the applicant was awaiting surgery on 19 September 2019.
In his second report, Dr Bosanquet took a history of the lumbar surgery and noted that the applicant developed symptoms in her left leg with a feeling of heaviness and a locking sensation, following the surgery. The knee gave way on three occasions and continued to give way, the last time being six weeks earlier. The applicant’s knee had been taped by the physiotherapist.
Dr Bosanquet noted that the right sciatica that was present preoperatively had settled with surgery but not 100%.
On examination, Dr Bosanquet a noted small effusion in both knees and tenderness and retropatellar crepitus on the right.
Asked whether the condition in the applicant’s left knee was a result of the initial injury to the lumbar spine, Dr Bosanquet gave the opinion:
“It is my opinion that the ‘injury’ to her left knee is totally unrelated to the injury to her lumbar spine on 11 September 2018. Her left knee symptoms are due to pre-existing degenerative changes in the patellofemoral joint.”

Dr King

The respondent procured an injury management consultation report from sport and exercise physician, Dr Malcolm King on 17 July 2020.
Dr King noted the applicant had undergone surgery on 19 September 2019. Dr he also noted a past history of back pain. Dr King noted:
“She said that she experiences intermittent numbness or pins and needles of the left foot. She no longer experiences right sided sciatica. She reported sharp lower back pain from time to time with discomfort at the left calf. Ms Valenzuela suspected that the post-operative finding of soft tissue in the L5/S1 intervertebral foramen may be contributing to her foot and leg symptoms. However, the symptomatic foot is the left, and the soft tissue mass was identified on the right in the CT scan.”
Dr King suggested that an independent psychological assessment may explain the applicant’s situation and noted the referral to a pain clinic may also be appropriate if there was no progress.

Applicant’s submissions

The applicant’s submissions referred to her statement evidence and, in particular, the left leg symptoms of heaviness and weakness following the lumbar surgery. The applicant described sudden and unexpected episodes of her left leg locking and giving way. The applicant was referred to Dr Gray who recommended surgery to the left knee.
The applicant submitted that her statement evidence was consistent with the histories provided to the doctors involved in the applicant’s case.
When Dr Coughlan first saw the applicant in February 2019, he noted left-sided symptoms associated with the back.
The applicant was referred to physiotherapist, Mr Wilson. Mr Wilson had reported shooting pain and numbness to the feet.
The applicant reported a pulling sensation on the left leg following the surgery to Dr Coughlan in March 2020.
In referring the applicant for radiological investigations in September 2020, Dr George took a history of the left knee being injured when the applicant’s leg collapsed due to sudden pain in the left lumbar spine shooting to the leg. The history given by Dr George was consistent with what Dr George included in his certificates of capacity where it was noted that the left knee had “collapsed”.
The applicant noted that a similar history was provided in the referral to Dr Morton. The applicant submitted that it was clear that Dr George understood that a meniscal tear shown on MRI investigation related to the history of the knee collapsing and twisting.
Dr Gray gave an opinion at the outset that increasing weakness in the applicant’s left leg had exacerbated the patellar symptoms, which he agreed were pre-existing, and caused a lateral meniscal tear.
The applicant submitted that the pathology of a lateral meniscal tear was significant and said the primary purpose of the arthroscopy was to deal with meniscal tear.

The applicant submitted that she needed only to establish that the lumbar injury made a “material contribution” to the need for surgery. It was not necessary to establish that the injury was “the main contributing factor” to the condition in the applicant’s left knee and need for surgery. The applicant referred to the authorities in Ozcan v Macarthur Disability Services Ltd[1] and Murphy v Allity Management Services[2].
[1] [2021] NSWCA 56.
[2] [2015] NSWWCCPD 49.
Dr Gray had indicated that the purpose of the surgery was to address the lateral meniscus as well as to deal with patellar spurring. An opinion had been given that the applicant’s patellofemoral arthritis had been exacerbated.
Dr Bodel saw the applicant in October 2021 and noted the onset of left-sided symptoms. Dr Bodel had before him Dr Gray’s reports and took a history of locking and giving way episodes in the left knee. Dr Bodel noted that the meniscal pathology required arthroscopy. Dr Bodel was also satisfied that there had been an aggravation, acceleration, exacerbation and deterioration of the known pathology in the left knee, warranting the surgery recommended by Dr Gray.
The applicant submitted that Dr Bodel had provided a well-reasoned opinion on the chain of causation that was consistent with the history before him.
On the other side was the report of Dr Bosanquet. Dr Bosanquet was provided with a consistent history but provided only brief reasoning, suggesting the applicant’s knee symptoms were due to pre-existing patellofemoral changes. The applicant submitted that Dr Bosanquet’s opinion did not engage with the history of left leg problems consequential upon the lumbar surgery.
Dr Bosanquet did not engage with the evidence suggesting that the applicant’s symptoms were causative of a meniscal tear. Dr Bosanquet only dealt with the degenerative changes. Other doctors had accepted that the applicant had two pathologies in the left knee.
The applicant submitted that the Commission would have little difficulty accepting that the applicant sustained a consequential left knee condition following the lumbar surgery. In this way, the lumbar injury had materially contributed to an aggravation of pre-existing osteoarthritis and the development of a new meniscal tear. There was no dispute that the surgery proposed by Dr Gray was reasonably necessary to treat that pathology.

Respondent’s submissions

The respondent noted that the consequential condition alleged by the applicant was of a new trauma to the left knee due to her lumbar disability. The applicant pointed to a meniscal tear as being a material contributing factor to the condition for which surgery had been proposed by Dr Gray. The respondent submitted that it was not easy to understand how a back condition had caused a meniscal tear.
The respondent submitted that the histories provided by the applicant were not consistent.
The applicant’s statement described heaviness and weakness in her legs. The applicant also described sudden and unexpected episodes of her left leg locking and giving way. The applicant had not explained how the back was causing the left leg to lock or give way.
Dr Bodel failed to explain this in his report. On the causal connection between the left leg symptoms and the lumbar spine, Dr Bodel’s opinion was entirely silent and was of little assistance to the Commission. Dr Bodel simply described symptoms and said they were related to the back condition.
The referral to Dr Coughlan from Dr Jayashree in November 2014 described symptoms in the back and leg heaviness. The respondent submitted that leg heaviness was not a new symptom arising post-surgery.
The respondent noted that the applicant’s statement gave no indication of when the episodes of locking and giving way occurred. Dr King, in his report of 17 July 2020 did not refer to locking and giving way.
The applicant had been seen by orthopaedic and spinal surgeon, Dr Y A E Ghabrial at the request of her solicitors on 17 August 2020. No history of symptoms in the left knee was recorded at that point.
The first reference to left knee symptoms was in the referral for radiological investigation prepared by Dr George on 8 September 2020. No clinical material had been provided from Dr George to give any insight as to what was happening. The account of sudden locking and giving way suggested knee pathology rather than a causal relationship to the back.
The applicant was referred to Dr Morton who described recent locking in the knee due to patellofemoral arthritis.
The applicant was seen by Dr Gray six months later. Dr Gray took a history of locking and giving way and instability. Dr Gray considered that these episodes may be a manifestation of the meniscal tear but gave no insight as to the cause of the meniscal tear. Although Dr Gray said surgery could have exacerbated the knee condition, he did not say how. The respondent submitted that the Commission would not simply accept Dr Gray’s opinion without any insight as to his reasoning.
The respondent submitted that the primary reason for the arthroscopy was to debride spurs. Those spurs were not causally related to the back injury.
In his report of 24 August 2021, Dr Gray downplayed the contribution of any exacerbation relating to the back surgery. Dr Gray noted that the applicant already had significant long-standing osteoarthritis.
The respondent noted the applicant’s criticism of Dr Bosanquet’s report but suggested that it was unwarranted. Dr Bosanquet gave a blunt explanation in relation to the knee, but there was nothing incomplete or requiring further explanation.
The respondent agreed that it was trite law that the relevant test was one of “material contribution”. The respondent referred to Kumar v Royal Comfort Bedding[3] and Kooragang Cement Pty Ltd v Bates[4].
[3] [2012] NSWWCCPD 8.
[4] (1994) 10 NSWCCR 796 at [810].
The respondent submitted that the Commission was required to conduct an evaluation of the causal chain, where necessary supported by expert evidence. In this case, Dr Bodel and Dr Gray noted the back condition and suggested that somehow explained the locking of the knee. That locking was, however, readily explained by the pathology in the knee itself.
The respondent noted that Dr King had discounted the applicant’s hypothesis that the left sided symptoms were the result of surgery.
Dr Morton ascribed to the episode of locking described to him to the patellofemoral arthritic changes in the knee.
The respondent submitted that Dr Bosanquet’s report complied with his obligations as an expert witness. The persuasiveness and logic of the causal chain was frail. The requisite evidentiary standard had not been met by the applicant.
The Commission was faced with competing arguments. The respondent said that knee pathology was productive of the knee symptoms. The applicant said the back injury was the cause. The applicant bore the relevant onus and failed to discharge it.

Applicant’s submissions in reply

The applicant noted that Dr Morton diagnosed a flare of a previously asymptomatic knee condition. The applicant queried what had caused the condition to become symptomatic at that particular point in time. Dr Morton conducted only a “cursory” review of the knee did not provide a considered opinion.
Dr King took a history of intermittent numbness or pins and needles in the left foot. The applicant also reported sharp lower back pain from time to time with discomfort at the left calf. Dr King was therefore given a history of lower back and left leg symptoms that persisted despite lumbar fusion surgery. Dr King’s report bundled the left leg symptoms and lumbar symptoms together.
Dr Bodel observed that Dr Gray confirmed that clinically there was evidence of a torn medial meniscus. An MRI scan was done showing patellofemoral wear and also a lateral meniscal tear. Dr Bodel said that weakness of the left knee was related to the back injury.
Dr Gray had explained that after her back surgery the applicant had increasing leg heaviness and weakness. This had caused exacerbation of her patella symptoms and also the lateral meniscus tear. The applicant was weaker since the surgery and this could increase the load on the patellofemoral compartment.
The applicant submitted that all the “building blocks” to establish the chain of causation were present.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means 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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is not in dispute that the applicant sustained an injury to her lumbar spine on 11 September 2018. What requires determination in these proceedings is whether the applicant has sustained a consequential left knee condition as a result of that injury.
It is not necessary for the applicant to establish that the left knee condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[5] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[5] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[6], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[6] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[7] Snell DP referred to the decisions in Moon v Conmah[8] and Kumar v Royal Comfort Bedding[9] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[7] [2016] NSWWCCPD 23.
[8] [2009] NSWWCCPD 134.
[9] [2012] NSWWCCPD 8.
A common sense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[10], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
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.”
[10] (1994) 10 NSWCCR 796 at [810].

98. His Honour said 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 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. 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.”

Nothing in the lay or medical evidence before me suggests that the applicant had experienced symptoms at her left knee prior to the lumbar injury. There does, however, appear to be general agreement that the applicant had pre-existing patellofemoral osteoarthritis. Dr Morton, in his report, for example, diagnosed a flare of previously asymptomatic long-standing left knee patellofemoral osteoarthritis.
The applicant has described an onset of left leg and left knee symptoms following the lumbar surgery performed by Dr Coughlan on 19 September 2019.
The treating evidence post-dating the surgery records that symptoms of pain shooting to the applicant’s feet were reported to her physiotherapist in November 2019. In March 2020, Dr Coughlan reported that the applicant had complained of a pulling sensation in the left leg. On that occasion, Dr Coughlan suggested that the symptoms were not explained by the CT scans.
The applicant was seen by sport and exercise physician, Dr King on 17 July 2020. The applicant again reported symptoms of numbness or pins and needles of the left foot, and sharp pain from time to time with discomfort at the left calf. The applicant suggested that the symptoms might be explained by soft tissue mass or scarring identified on the CT scan, however, that explanation was rejected by Dr King who observed that the tissue mass was on the right side.
The first reference to knee symptoms appears in letters of referral prepared by the applicant’s general practitioner, Dr George, from September 2020 onwards. The referral for radiological investigation of the left knee on 8 September 2020 described an injury to the left knee when the leg collapsed due to sudden pain in the left lower lumbar spine shooting to the leg. A similar history was provided in the referral to Dr Morton, which described left lower limb weakness following the lumbar surgery, the knee collapsing and the applicant twisting her knee.
Although clinical records from Dr George have not been provided, the material before the Commission suggest that multiple attempts were made by the parties, unsuccessfully, to obtain those records. The only evidence from Dr George appears in his letters of referral and in the certificates of capacity. Those documents consistently indicate that Dr George was of the opinion that the condition in the left knee was secondary to or consequential upon the lumbar injury. The certificates of capacity, consistently with the letters of referral, described lumbar pain shooting down the left leg and the left knee collapsing.
This evidence from Dr George is significant as it provides the most contemporaneous account of the onset of left knee symptoms. Although the respondent’s submissions suggest that symptoms of locking and giving way in the applicant’s knee could be accounted for by the pre-existing pathology in the applicant’s left knee, Dr George’s evidence specifically links an episode of the knee collapsing to shooting pain from the lumbar spine through the left leg and left leg weakness due to lumbar symptoms.
That the applicant had been complaining of left-sided lumbar and leg symptoms following the surgery is confirmed in the treating evidence and the report of Dr King above.
Contrary to the respondent’s submissions, therefore, the evidence before me does not suggest an idiopathic onset of knee symptoms consistent with the pre-existing knee pathology. Rather, the evidence of Dr George suggests that the applicant’s knee symptoms commenced when the leg gave way and any twisted due to shooting pain down the left leg from the lumbar spine.
The respondent’s submissions noted that symptoms in the applicant’s back and legs pre-dated the injury on 11 September 2018. There is evidence of intermittent lumbar symptoms, including leg symptoms, in the medical evidence dated around November 2014. Elsewhere a history has been given of lumbar symptoms dating back to 2008.
The treating reports of Dr Coughlan do, however, suggest a significant aggravation or exacerbation of the applicant’s lumbar symptoms with the injurious event on 11 September 2018 and liability for an injury on that date has been accepted. Although the treating medical evidence refers to shooting pain from the lumbar spine down both legs following that event, the medical evidence generally suggests that this was worse on the right prior to the surgery. Although the right leg symptoms were substantially improved following the surgery, the left leg symptoms were reported to be more prominent.
I accept the respondent’s submission that the applicant’s evidence is unclear as to the timing or circumstances of the onset of left knee symptoms. I also accept that the histories provided to Dr Gray and the medico-legal experts are similarly vague in this regard. The evidence must, however, be considered as a whole, and I have given particular weight to the contemporaneous accounts of Dr George.
The applicant has been consistent in associating the onset of her left knee symptoms with her lumbar symptoms post-surgery. The applicant told Dr Gray that following the surgery, she was getting heaviness and shooting pain down the left leg. Around this time, the applicant also reported the knee locking and giving way. Similar histories were provided to Dr Bodel and Dr Bosanquet.

Both Dr Gray and Dr Bodel have accepted a causal relationship between the lumbar symptoms and the knee symptoms. In particular, both doctors appear to agree that a meniscal tear shown on MRI investigation in late 2020 was attributable to the left leg heaviness and weakness. In addition, both doctors have accepted that this had exacerbated symptoms arising from the pre-existing patellofemoral pathology. Dr Gray explained that the weakness in the leg could increase the load on the patellofemoral compartment. This explanation appears to have been accepted by Dr Bodel.
Notwithstanding the comity of opinion between Dr George, Dr Gray and Dr Bodel, Dr Bosanquet has rejected the possibility that the left knee condition was causally related to the injury to the applicant’s lumbar spine. Dr Bosanquet has given that opinion despite the history reported to him of symptoms increasing in the left leg following the back surgery and feelings of heaviness, locking and giving way. Dr Bosanquet noted clinical findings at both knees and gave the opinion that the applicant’s left knee symptoms were due to the pre-existing degenerative changes in the patellofemoral joint.
One difficulty with Dr Bosanquet’s opinion is that he has not engaged with the radiological evidence of a meniscal tear in addition to the degenerative pathology at the patellofemoral joint. It is unclear whether Dr Bosanquet turned his mind to whether there could have been an increase in patellofemoral symptoms due to the symptoms in the left leg experienced following the lumbar surgery, noting that the knee appears to have been asymptomatic prior to the surgery. Dr Bosanquet has not engaged with the temporal coincidence between left leg symptoms of shooting pain, heaviness and weakness and the onset of knee symptoms such as locking and giving way.
Although I accept that Dr Bodel’s medico-legal opinion is open to the respondent’s criticism of a lack of explanation as to the causal relationship between the back symptoms and the knee symptoms, the Commission’s task is to review the evidence as a whole. That evidence includes the evidence from Dr George suggesting a mechanism, precipitated by shooting pain in the left leg from the lumbar spine, which accounts for the onset of left knee symptoms. It also includes Dr Gray’s explanation of an increased load on the patellofemoral compartment due to left leg weakness caused by the lumbar injury.
After carefully considering all of the evidence, I am satisfied on the balance of probabilities that the meniscal pathology and increase in symptoms arising from the degenerative patellofemoral osteoarthritis in the applicant’s left knee have resulted from the lumbar injury on 11 September 2018. I am satisfied that the applicant has a consequential condition at the left knee.
I accept that the surgery proposed by Dr Gray is intended to address, in part, the degenerative pathology, including spurring. I have, however, accepted that the lumbar injury and resulting left leg symptoms of shooting pain and weakness exacerbated that degenerative pathology, causing symptoms which have resulted in the present need for the treatment proposed by Dr Gray. I also accept that the surgery is intended to address the more recent meniscal tear which has resulted from the injury. I accept, in these circumstances, that the lumbar injury has “materially contributed” to the need for surgery.
There is no suggestion in the medical evidence, and the respondent has not submitted, that the particular surgery proposed by Dr Gray is not reasonable or appropriate treatment for the applicant’s left knee condition.
I am satisfied, therefore, that the surgery proposed by Dr Gray is reasonably necessary as a result of the lumbar injury on 11 September 2018.
There will be an order for the respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the 1987 Act.

[2022] NSWPIC 409

26 July 2022