Whiteman v Delmai Pyu Ltd
[2021] NSWPIC 156
•1 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Whiteman v Delmai Pyu Ltd [2021] NSWPIC 156 |
| APPLICANT: | Robert John Whiteman |
| RESPONDENT: | Delmai Pyu Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for expenses pursuant to section 60 of the 1987 Act for bilateral knee arthroscopies, and for treatment for anxiety and depression, and pain management; injury to left knee, and condition in left knee consequent upon undisputed injury to right knee, put in issue by the respondent, as was the reasonable necessity of the bilateral knee arthroscopies and treatment for anxiety and depression, and pain management; Held- finding that the applicant suffered injury to the left knee on the date claimed, but that arthroscopic surgery not reasonably necessary as a result of that injury; finding that the applicant did not suffer a condition in the left knee consequent upon the undisputed injury to the right knee; award for the respondent in respect of this claimed condition; finding that the arthroscopic surgery not reasonably necessary as a result of injury to the right knee; finding that the treatment claimed for anxiety and depression, and for pain management, was reasonably necessary as a result of injury to the right knee; respondent ordered to pay for the cost of treatment for anxiety and depression, and for pain management. |
| DETERMINATIONS MADE: | 1. The applicant suffered injury to his left knee arising out of or in the course of his employment with the respondent on 3 August 2017. 2. Award for the respondent in respect of the applicant’s claim that he suffered a condition in his left knee consequent upon injury to the right knee on 1 May 2017. 3. The arthroscopic surgery to the applicant’s left knee recommended by Dr P Berton is not reasonably necessary as a result of injury to the left knee on 3 August 2017. 4. The arthroscopic surgery to the applicant’s right knee recommended by Dr P Berton is not reasonably necessary as a result of injury to the right knee on 1 May 2017. 5. The Cognitive Behaviour Therapy and pain management treatment claimed by the applicant is reasonably necessary as a result of injury to the right knee on 1 May 2017. 6. The respondent is to pay for the cost of the Cognitive Behaviour Therapy and pain management treatment claimed by the applicant in the Application to Resolve a Dispute. |
STATEMENT OF REASONS
BACKGROUND
Robert Whiteman (the applicant/Mr Whiteman) claims compensation for the cost of hospital, medical and related treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of his employment as a postal delivery officer with the respondent on 1 May 2017 and 3 August 2017.
On 1 May 2017 Mr Whiteman was getting out of a delivery van and as he went to stand up he twisted his right knee which ‘popped’, and he heard a crack sound. The knee gave way causing him to collapse. The knee became immediately painful and swollen.
On 3 August 2017 Mr Whiteman was riding a motorbike delivering mail when a person stepped out from a property in front of him and collided with the motorbike, as a result of which the applicant was thrown over the handlebars. He put out his right hand to break his fall, landing on both knees, his right hand and left elbow. He claims that he suffered injuries to his right wrist and thumb, left elbow, left knee and a further injury to his right knee.
The applicant also claims that following the injury to his right knee on 1 May 2017, he started favouring and protecting his right knee and suffered a condition in the left knee consequent upon that injury to the right knee.
The respondent does not dispute liability for injury to the right knee on 1 May 2017. It does dispute injury to the left knee on 3 August 2017 and that the applicant suffered a condition in that knee consequent upon injury to the right knee on 1 May 2017.
The applicant claims the cost of hospital, medical and related treatment for bilateral knee arthroscopies recommended by his current treating orthopaedic surgeon, Dr Peter Berton.
Mr Whiteman also claims the cost of Cognitive Behaviour Therapy and pain management. The respondent disputes these claims.Mr Whiteman had experienced problems with his left knee prior to the injury of 1 May 2017, and been treated by Dr Lynette Reece, orthopaedic surgeon, from 11 June 2015[1] following a work injury at the Singleton Diggers RSL Club on 25 July 2014 when he injured his left knee and ankle. She performed an arthroscopy on the left knee on 22 December 2015[2]. The applicant returned to Dr Reece on 11 December 2017[3] when she reviewed him for both of the work injuries the subject of the current proceedings. Dr Reece continued to treat
Mr Whiteman and performed an arthroscopy on the right knee on 23 May 2018[4]. On 14 June 2018 when Dr Reece reviewed an MRI of his left knee she said that no further surgical intervention was required on that knee[5]. When Dr Reece saw the applicant for the last time on 20 September 2018[6] she recommended against any further right knee surgery.[1] Application p 78.
[2] Application p 83.
[3] Application p 92.
[4] Application p 97.
[5] Application p 98.
[6] Application p 101.
On 19 February 2019, the applicant’s general practitioner, Dr P Innis, referred him to
Dr Berton for a second opinion in respect of his right knee[7]. Dr Berton saw Mr Whiteman on 1 March 2019[8] and assessed both knees. An MRI scan of each knee was ordered. Later in his treatment of Mr Whiteman, Dr Berton stated that he would put in an application to the (respondent’s) insurer for a bilateral knee arthroscopy[9].[7] Application p 104.
[8] Application p 105.
[9] Dr Berton’s report 13 May 2019, Application p 111.
In a notice dated 29 August 2019 issued to the applicant pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[10], the respondent’s insurer, Employers Mutual NSW Limited (EML), disputed liability for bilateral knee examination under anaesthetic as well as liability for a left knee injury, and a condition in the left knee consequent upon the accepted injury to the right knee. In a later such notice dated 18 August 2020[11], EML disputed liability for the applicant’s claimed consequential psychological injury resulting from his accepted injury on 3 August 2017, including liability for medical and related expenses, in accordance with ss 59 and 60 of the 1987 Act.
[10] Application p 9.
[11] Application p 29.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer injury to his left knee on 3 August 2017?
(b) Did the applicant suffer a condition in his left knee consequent upon injury to the right knee on 1 May 2017?
(c) Are the bilateral knee arthroscopies recommended by Dr Berton reasonably necessary as a result of:
(i)injury to the right knee on 1 May 2017?
(ii)injury to the left knee?
(iii)condition in the left knee consequent upon injury to the right knee on 1 May 2017?
(d) is the Cognitive Behaviour Therapy and pain management treatment claimed by the applicant reasonably necessary as a result of injury on 1 May 2017 and 3 August 2017?
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration conducted via telephone conference on 19 May 2021. Mr A Parker of counsel appeared for the applicant briefed by Ms L Bussoletti. The applicant attended on a separate line. Mr P Stockley of counsel appeared for the respondent briefed by Mr M Thorne.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (the Application);
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 12 May 2021 (AALD) lodged by the applicant and attachments.
Oral Evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties have been recorded a transcript of which can be obtained on request. In summary, they are as follows.
Applicant
The applicant confirms that, in addition to the undisputed frank injury to the right knee on 1 May 2017, he is claiming that he suffered a frank injury to the left knee on 3 August 2017 and a condition in that knee consequent upon the right knee injury. He notes that the respondent is disputing that he suffered a psychological injury, based on the assessment of Dr Graham Vickery in his report dated 11 August 2020[12]. The applicant initially submitted that he does not claim that he has suffered a psychological injury as such, rather he is claiming the cost of the psychological treatment recommended by Dr John Prickett in his report dated 10 December 2020[13] to help him cope with his persisting symptoms. However later in submissions the applicant submitted there should be a finding of psychological injury.
[12] Reply p 26.
[13] AALD p 11.
The applicant submits that Associate Professor Leon Kleinman (Dr Kleinman) who examined him on 8 July 2019 and produced a report of that date[14] seems to concede that he may have issues with his left knee but disputes the claimed consequential condition in that knee.
[14] Application p 33, Reply p 2.
The applicant submits that Dr Kleinman is wrong in saying that he only commenced complaining of pain in his left knee about six months after the accident of 3 August 2017.
Dr Larry Jongbloed, his general practitioner records in a clinical note dated 4 August 2017[15] that he had sore knees following the motorbike accident when he was thrown off his bike. When symptoms in that knee deteriorated, he was referred to Dr Berton.[15] Application p 171.
The applicant submits that Dr Andrew Porteous, an occupational physician who independently medically examined him in March 2020 and produced a report dated 10 March 2020[16], clearly supports the case that the left knee condition was as a result of the right knee injury, which caused increased weight bearing on the left knee and overuse. The doctor also finds injury to the right knee on 1 May 2017 and to both knees on 3 August 2017.
[16] Application p 57.
Dr Reece, who saw Mr Whiteman on 11 December 2017, also recorded a history in injury to both knees on 3 August 2017, as did Dr Berton who first saw Mr Whiteman on 1 March 2019. In his later report dated 13 May 2019 Dr Berton concedes that it is “potentially possible” that as a consequence of work related right knee problems over the years, the left knee has been overloaded and the underlying condition therein aggravated. In that same report Dr Berton states that he will put in an application to the insurer for bilateral knee arthroscopy, liability for which he thought would lay with the insurer.
The reasonable necessity for surgery is also supported by Dr Porteous who notes that
Dr Berton recommends undertaking an arthroscopic knee investigation and treatment of the pathology found, based on his own practice within his area of expertise.In respect of the applicant’s claim for treatment for his psychological condition, he refers to the report of Suzanne Osei, clinical psychologist, dated 14 July 2020[17]. Ms Osei found
Mr Whiteman met the criteria for Adjustment Disorder (Anxiety and Depression) and recommended he participate in Cognitive Behaviour Therapy and pain management counselling to assist him to improve his symptoms of anxiety and depression and to learn techniques to improve his pain management. The applicant seeks a finding that there is a diagnosable condition based on the findings of Ms Osei.[17] Application p 119.
Respondent
In response to the applicant’s claim for treatment for anxiety and depression, and for pain management, the respondent submits that it is not clear exactly what the applicant is seeking. Dr Vickery says that the psychological treatment sought by the applicant is not reasonably necessary because there is no diagnosable condition from which he suffers. The opinion is not to the effect that the applicant should not have pain management treatment.
In respect of the applicant’s claim for the reasonable cost of the bilateral arthroscopies, the respondent notes that the treating surgeon Dr Reece recommends against such treatment. Matters which must be determined in respect of the left knee are whether and to what extent the left knee injury bears any relationship to work, what is the injury or condition in the left knee and is the surgery proposed reasonably necessary for whatever that injury or condition is?
Another factor, whilst not decisive either way on the issue of the reasonable necessity for surgery, is that no costings of the surgery or subsequent rehabilitation have been supplied. In saying this, the respondent concedes that that cost is likely to be at the lower end of the scale of the cost of surgical intervention.
The respondent submits that it is only a tentative opinion proffered by Dr Berton in respect of the bilateral knee arthroscopies, and the causal nexus between the left knee condition and work. It is not clear what Dr Berton hopes to achieve from the surgery. These are features of concern in the applicant’s case, even without the opinion of Dr Kleinman.
The respondent submits that when Dr Berton, in his report dated 1 March 2019, considers that it would be quite fair and reasonable for liability in respect of both knees should rest with the insurer, he is straying outside the role of a treating practitioner and expressing an opinion on a matter which is in the province of the insurer, or the Commission, to determine.
The respondent submits that Dr Berton has not in his reports acknowledged the opinion of
Dr Reece in respect of surgery. It is not clear if he has seen Dr Reece’s reports, but if he has, he has not made comment thereon.The respondent reviews the earlier treatment by Dr Reece of the applicant’s left knee, noting the pre-injury MRI findings in the left knee on 24 April 2015[18] and the arthroscopy Dr Reece carried out on 22 December 2015. In a report dated 29 November 2017[19] Dr Jongbloed notes that there was a pre-existing tear of the meniscus in the left knee, which he suspects has been aggravated in the fall in the motor cycle accident. The point made by the respondent is that the applicant’s knee problems go well back beyond the pleaded work accidents.
[18] Application p 76.
[19] Application p 91.
The respondent submits that reading Dr Reece’s report dated 11 December 2017 together with the report of Dr Kleinman dated 8 September 2019, the most that could be said about any injury to the left knee on 3 August 2017 is that it was a contusion only. There was nothing of significance in terms of pathology.
It is also noted that Dr Reece performed an arthroscopy on the right knee on 23 May 2018, and that on 20 September 2018 she recommended against any further surgical intervention in the right knee. Dr Reece had previously, on 14 June 2018, recommended against any further surgical intervention in the left knee.
The respondent notes from the report of the exercise physiologist, Emmalee Harris, dated 29 November 2018 that conservative treatment was undertaken and that Mr Whiteman had made progress with his rehabilitation. However, he did not like the advice given by Dr Reece and therefore sought a second opinion from Dr Berton.
A significant matter according to the respondent is the applicant’s perception as to what the proposed arthroscopic surgery will do for him. It is apparent from [2] in his supplementary statement dated 19 April 2020[20] that his understanding is that the bilateral arthroscopy recommended by Dr Berton is to avoid total knee replacement. This is not the case, and
Dr Berton does not say this. It is contrary to the opinion of Dr Reece. In essence according to the respondent, what Dr Berton is proposing to result from the bilateral arthroscopies is to have a look at the knees and see what is there.[20] AALD p 3.
The respondent notes from the entries in the clinical notes of Dr Jongbloed dated 22 July 2016, 8 November 2016 and 14 March 2017 that the pre-injury symptoms in both knees were significant enough to take him to the doctor on those occasions.
The respondent submits that, given the previous knee problems suffered by the applicant, it is difficult to see how his case that he suffered a condition in the left knee consequent upon the right knee injury can succeed. There is no description of over reliance on the left knee in the evidence, and not much other evidence from in this regard. The respondent notes that the applicant’s knee symptoms waxed and waned, causing him to become less active, and if is a simplistic proposition to find that the left knee condition resulted from the right knee injury. Further, there was no serious left knee injury on 3 August 2017.
Applicant in response
The applicant acknowledges that part of the reason for the arthroscopies proposed by
Dr Berton is to further investigate the reason for the applicant’s symptoms in his knees and notes the MRI scans carried out on both knees on 5 March 2019[21] and Dr Berton’s comments in his report dated 18 March 2019[22].[21] Application pp 107-108.
[22] Application p 109.
The applicant also emphasises the willingness with which he has been able to return to work in the past despite his knee problems, and his current desire to return to work. He has been in pain for many years and looks to the surgery to relieve his pain and return to work.
FINDINGS AND REASONS
Injury to the left knee
The respondent puts in issue whether the applicant suffered an injury to his left knee on 3 August 2017 when he was propelled over the handlebars of his motorbike. The respondent raises the further issue as to the nature of any injury to the left knee on that date. The applicant submits that he suffered a frank injury to the left knee in that accident.
The applicant attended Maitland Hospital on the day of the accident complaining of bilateral knee pain[23]. He attended on Dr Jongbloed at the Branxton Medical Centre the following day. The doctor recorded a history of the accident, noted that Mr Whiteman had been assessed at Accident and Emergency the previous day, and inter alia recorded “Grazed knees”. Under “Examination:” Dr Jongbloed recorded “Grazes dressed not assessed”. On the subsequent attendance on Dr Jongbloed on 11 August 2017, the doctor recorded under “Examination” – “Healing grazes volar upper forearm Knees.” Dr Jongbloed saw the applicant again on 10 November 2017 and wrote to EML on that day in respect of increasing problems in the right knee. He noted that the applicant’s knees “…particularly the Right did receive some trauma in his motorbike accident…”[24] Dr Jongbloed said that the fall in the motorbike accident had probably aggravated his pre-existing knee problem or possibly damaged the knee further. Dr Jongbloed was clearly referring here to the right knee.
[23] Application p 85.
[24] AALD p 31.
Dr Reece saw Mr Whiteman for the first time after the motorbike accident on 11 December 2017. She noted that the last time she had seen him was in hospital about his left knee.
Dr Reece took a history of the “motorcycle accident at work”, and then recorded the following history:“He landed on both knees and both hands. He injured his left elbow and right hand and landed on both knees. The left knee has settled down and not caused any ongoing problems but the right knee is still problematic. It locks up. It cracks. There is pain in the front and he can not twist as it increases his pain.”
Dr Reece then went on in that report to discuss the right knee
In her next report dated 18 January 2018[25] Dr Reece refers to the “knee”, singular, but, having regard the contents of her previous report and the following one dated 15 March 2018,[26] is quite clearly referring to the right knee. The next report from Dr Reece is dated 31 May 2018 in which she notes that:
“His left knee is now playing up. We did do an arthroscopy on that in 2015 at Maitland Public and tided up his medial meniscus.
We are going to get a new MRI to see where that is up to. Thank for this referral.”
[25] Application p 94.
[26] Application p 96.
In her report of 14 June 2018 Dr Reece says:
“I reviewed Robert on the 14th June, 2018. We did the MRI of his left knee which bascially shows a lot of metal artefact but nothing in his knee that requires any surgical intervention. He does have some early degenerative change but he just needs to keep his leg strong so it can keep taking the extra weight.” [sic]
The “metal artefact” mentioned in that report refers to an incident in which the applicant was involved in 2012 when a wire from a whipper snipper penetrated his left knee as a result of which he developed sepsis. It is not clear if Dr Reece was referring to the “extra weight” because of the applicant’s right knee problems, although she makes no mention of this, or to Mr Whiteman’s body weight. In view of Dr Reece’s recommendation in her report dated 20 September 2019 for the applicant to lose weight, and reduce the load on his knees, I think that she was probably referring to weight loss in general rather than favouring the right leg and putting more strain on the left leg.
In her final report in evidence dated 20 September 2018 Dr Reece discusses the arthroscopy on the right knee that she carried out in May 2018 and findings thereon, a meniscal tear “…which was tidied up…” There is further discussion in respect of the right knee, including that:
“The articular cartilage changes are only going to worsen over time and he will come to a total joint replacement. The articular changes can not be treated in any other way….It is about managing the issues, the pain with strengthening and weight loss and reducing the load on his knees”
In his report dated 8 July 2019. Dr Kleinman was asked to consider if the work injury in August 2017 was a substantial contributing factor to the left knee condition. The doctor said that Mr Whiteman may have contused his left knee when he landed in August 2017 but he made no complaint about that knee until about six months later. That is not the case. He complained of bilateral knee pain when he attended the Maitland Hospital on the day of the accident and of grazes to his knees when he attended on Dr Jongbloed on 4 and 11 August 2017.
In Galluzzo v Commonwealth Bank of Australia[27] Roche DP said:
“A ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at [39]). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead[2011] NSWWCCPD 51 from [79] (Felstead)). Moreover, as was explained in Felstead (at [81]), to constitute a personal injury, such a physiological change or disturbance change ‘may be as simple as a bruise or a soft tissue strain’”
[27] [2014] NSWWCCPD 82 at [31].
Quite clearly the applicant suffered an injury to the left knee in the motorbike accident in which he was involved on 3 August 2017. It was at least a graze, causing pain, which was healing by the time Dr Jongbloed saw him on 11 August 2017.
Dr Reece reported on 11 December 2017 that the left knee had settled down and was not causing ongoing problems. However she reported on 31 May 2018 that it was playing up, and that an MRI was to be arranged. That is referred to at [41] above, and Dr Reece’s comments thereon at [42].
An MRI scan of the left and the right knee was carried out and reported on by Dr Slater on 5
March 2019. The comment in respect of the left knee is as follows:
“Comment
10mm tear with parameniscal cysts in the posterior corner of the medial meniscus with interval evidence of previous surgery to the medial meniscus compared to prior study.
Multiple metal artefacts.
No significant cartilage defect or ligamentous injury.”[28]
[28] AALD p 35.
Dr Berton comments on this MRI scan dated 5 March 2019 in his report dated 18 March 2019 and says that the cause of the applicant’s acute left knee pain is unclear but agrees with Dr Reece re weight loss. Dr Berton says that although there is no reported arthritic changes of the left knee on the MRI, there is a suggestion of loss of joint space on the left medial tibiofemoral joint. He says later in the report that:
“There may be a potential role for arthroscopy to further investigate and potentially remove what does appear to be a potential root tear of the medial meniscus.”
Dr Berton suggests reassessment by Guy Higgins and the team at Singleton Physio and to get some hydrotherapy underway, and suggests to Dr Innis, the doctor to whom the report is addressed, to assist with pain relief strategies and if possible some anti-inflammatories that might be helpful. He concludes the report that with the left knee, he would not be suggesting intervention at that point in time and hopes with BMI (which I interpret as Body Mass Intervention) optimisation, the left knee may settle as might the right.
In his next report dated 13 May 2019 Dr Berton notes that the left knee has had a medial meniscectomy and remains symptomatic. His understanding was that previously the insurer had approved MRI investigation under workers compensation for the left knee. He then notes that Mr Whiteman feels that as a consequence of his work related right knee problems over the years he has overloaded the left knee and aggravated the underlying condition present. Dr Berton says that is a potential possibility “…and under those circumstances I would have thought liability for the proposed arthroscopic surgery would lay with the insurer….I will put in application to the insurer for bilateral knee arthroscopy.”
Dr Berton does not make a diagnosis of the applicant’s left knee condition. He says that the cause of the left knee pain is unclear and raises the suggestion of loss of joint space on the left medial tibiofemoral joint. He says that there may (emphasis added) be a potential role for an arthroscopy to further investigate the left knee and potentially remove what does appear to be a potential root tear of the medial meniscus. One reading of his report dated 13 May 2019 is that the left knee remains symptomatic following the earlier medial meniscectomy, which was carried out by Dr Reece on 22 December 2015. He moves then to make the request of the insurer for bilateral knee arthroscopy surgery on the basis of his view that the liability for the proposed surgery would lie with the insurer.
Dr Kleinman comments on an earlier MRI scan of the left knee performed on 5 June 2018 in his report dated 8 July 2019 in the following terms:
“The MRI scan of his left knee performed in June 2018 does not show any significant pathology in his left knee other than small remains from the wire which penetrated his left knee in 2012 and scarring of the cruciate ligament which on the balance of probabilities is attributable to the two previous injuries to his left knee.
Therefore I do not believe that work injury in August 2017 is a substantial
contributing factor to his left knee condition.”
Dr Porteous refers in some detail to the examination and findings of Dr Reece, Dr Berton and Dr Kleinman. He comes to the view that the applicant sustained a soft tissue sprain injury and contusion to his left knee on 3 August 2107 and aggravated the pre-existing degenerative arthritis conditions in the left and right knees on that day. I do not accept this opinion, at least in respect of the left knee. Neither Dr Reece nor Dr Berton has made this diagnosis, and Dr Berton wants to perform the left knee arthroscopy to investigate the left knee, although he notes that there are no reported arthritic changes in the latest MRI scan dated 5 March 2019.
My finding is that the applicant suffered grazing to his knee in the motorbike accident on 3 August 2017 which was treated but not further investigated by Dr Jongbloed on 11 August 2017. By the time Mr Whiteman saw Dr Reece on 11 December 2017 the left knee had settled down and was not causing any further problems. On 14 June 2018 Dr Reece diagnosed some early degenerative change in the knee on the basis of the MRI scan which she had arranged, and which took place on 5 June 2018. Dr Kleinman commented on that MRI and said that it showed Mr Whiteman had minimal constitutional degenerative change in the left knee[29]. Dr Kleinman’s opinion must be viewed against the background that, as I have noted in [44] above, he is incorrect when he says that the applicant did not complain about left knee symptoms until about six months after the accident of 3 August 2017. This error must also be viewed in the context of Dr Reece’s finding on 11 December 2017 that the left knee had settled down following the motorbike accident and had not caused ongoing problems.
[29] Application p 41.
I find that the applicant did not aggravate a pre-existing arthritis condition in his left knee on 3 August 2017. Commenting on the MRI scan of the left knee dated 5 June 2018, both
Dr Reece and Dr Kleinman found that there was either early degenerative change in the left knee, or minimal constitutional degenerative change in the knee. The injury to his knee on 3 August 2017 was a minor one, the effects of which had settled by the time Mr Whiteman consulted Dr Reece on 11 December 2017.
Consequential condition in the left knee
Dr Reece does not comment on this issue. Dr Berton says in his initial report to Dr Innis dated 1 March 2019 that he thinks it is:
“…fair to say that he could have overloaded this knee due to the chronicity of his right knee problems, but that aside, he appears to have had an injury to both knees when he fell off the motorbike, do I would have thought it would be quite fair and reasonable to consider liability for both knees to be with his current insurer given that the injuries in May and injuries in August were with the same employer.”
In his later report dated 13 May 2019 to Dr Innis, Dr Berton says that it is potentially possible for Mr Whiteman to have aggravated the underlying condition present in the left knee as a consequence of his work related right knee problems over the years. He says this on the basis of what Mr Whiteman felt about the issue.
On 20 February 2020 Dr Innis, a general practitioner the applicant had been consulting at the Branxton Medical Centre, wrote to “UHG” in Victoria noting that he had been seeing
Mr Whiteman at Branxton since 8 August 2018 when he reported pain in both knees[30].
Dr Innis records the history of the two work injuries on 1 May 2017 and 3 August 2017 and also the earlier left knee injury in 2012. He says that the applicant has chronic pain and dysfunction in both knees since the injury of 1 May 2017 and 3 August 2017. He then goes on to say:“Dr Berton orthopaedic surgeon attributes the left knee pain to be a combination
of initial overloading while favouring the right knee after injury l /5/2017 then the injury 3/8/2017. The exact diagnosis of the of cause both knees is not clear except to say that there is chronic pain, chronic dysfunction.”[30] Application p 67.
On the evidence before the Commission, Dr Berton does not say this in the terms recounted by Dr Innis. As noted above at [55], in his report dated 1 March 2019 to Dr Innis, Dr Berton says that it is fair to say that Mr Whiteman could have overloaded the left knee due to the chronicity of his right knee problems, then goes on to advance the proposition that as he injured both knees when he fell off his motorbike, he would have thought it fair and reasonable to consider that liability for both knees to be with his current insurer given that the injuries in May and August were with the same employer.
As also noted above, in his later report dated 13 May 2019 Dr Berton says that it is potentially possible, based on Mr Whiteman’s feeling, that as a consequence of his work related right knee problems over the years he has overloaded the left knee and aggravated the underlying condition present. He then goes on to repeat his thought that liability for the proposed arthroscopy surgery would lie with the insurer.
Dr Porteous says that the evidence found by him indicates that the left knee condition is more likely than not, on the balance of probabilities, as a result of the right knee injury causing increased weight bearing on the left knee and overuse.
Dr Kleinman says in respect of the applicant’s left knee condition:
“He is complaining of pain in his left knee which he attributes to favouring as a
result of his right knee condition. However there is no evidence to suggest thatfavouring one leg will cause the contralateral knee to become arthritic.
Therefore while he has developed pain in his left knee as a result of protecting
his right knee, he has no significant pathology in his left knee on the MRI scan.”The respondent submits that in view of the pre-existing problem that applicant had with his knees, the fact that applicant did not suffer a serious injury to his left knee on 3 August 2017 and the very limited evidence from the applicant himself, it is difficult to see how the applicant can make out a case of a condition in the left knee as a result of injury to the right knee.
In Murphy v Allity Management Services Pty Ltd[31] at [57]-[58] Roche DP made reference to the “common sense test of causation” referred to in Kooragang Cement Pty Ltd v Bates[32]. This is the test used to determine the causation of a consequential condition. In this case, if it can be shown that the condition in the left knee results from the injury to the right knee, such a condition is established. The question to be answered is, did the injury to the right knee materially contribute to the condition in the left knee?
[31] [2015] NSWWCCPD 49 (Murphy).
[32] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)
In my view the applicant has not discharged the onus on him that he suffered a condition in the left knee consequent upon the right knee injury. Dr Berton gives very qualified support for the proposition, based on the applicant’s assertion that this is the case, rather than expressing an opinion based on his own findings and clinical examination. His opinion is in my view coloured by his view that the respondent’s insurer should accept liability for injury to both knees. Dr Kleinman says that while the applicant has developed pain in the left knee as a result of protecting the right knee, he has no significant pathology in the left knee on the MRI scan. I have found that the applicant suffered a minor injury only on 3 August 2017.
Dr Berton has not made a diagnosis of the applicant’s left knee condition, and notes from the MRI scan dated 5 March 2019 that there are no reported arthritic changes in the left knee, although there is a suggestion of loss of joint space in the left medial tibiofemoral joint. He wants to investigate the left knee by way of arthroscopy. He says in his report dated 18 March 2018 that “There may be a potential role for arthroscopy to further investigate and potentially remove what does appear to be a potential root tear of the medical meniscus.” There is no evidence to causally relate that potential pathology to any overloading of the left knee to favour the right knee.Dr Reece has made no comment on the issue of whether the applicant suffered a condition in his left consequent upon the right knee injury.
I find that the applicant did not suffer a condition in his left knee consequent upon injury to the right knee on 1 May 2017.
Reasonable necessity for surgery
As a result of my findings in respect of injury to, and consequential condition in, the left knee, it is clear that the arthroscopic surgery proposed by Dr Berton on the left knee is not reasonably necessary as a result of injury to the left knee on 3 August 2017, or as a result of a condition in the left knee claimed to be consequent upon injury to the right knee on 1 May 2017.
Dr Reece is quite clearly of the opinion that further right knee surgery is not necessary. She performed an arthroscopy on the right knee on 23 May 2018 and found the meniscal tear as she had expected from the MRI along with some articular changes in the medial femoral condyle which she tidied up because there was a flap of tissue. In her report dated 20 September 2019 the doctor says that the articular cartilage changes are only going to worsen over time and that the applicant will come to a total joint replacement. The articular changes cannot be treated in any other way. Later in the report Dr Reece says that trying to take more articular cartilage from behind the kneecap will just mean that the articular cartilage is gone faster. What the doctor is saying there is that removing more articular cartilage will hasten the total knee replacement surgery.
Dr Kleinman does not believe that the applicant will benefit from arthroscopic surgery to his right knee as there is no benefit from such surgery. He says that he may get temporary relief but his pain will recur and his knee will continue to deteriorate because the joint surface is damaged. Dr Kleinman then refers to academic medical discussion on guidelines for the use of arthroscopic meniscal knee surgery. The new guidelines reinforce the view that arthroscopy should not be used on patients who will inevitably come to total knee replacement surgery. This view seems to reinforce what Dr Reece is saying about further arthroscopic surgery on the right knee.
Dr Kleinman recommends that Mr Whiteman should participate in an exercise programme under the supervision of an exercise physiologist to strengthen his quadriceps and hamstring muscles and maintain range of motion in his knees. He also refers to the use of appropriate medication.
The applicant’s perception of the reason he wants to undergo the arthroscopic surgery is relevant. In his first statement he says that he would like to have the arthroscopies as recommended by Dr Breton to try and avoid total knee replacements for as long as possible. In his second statement he says that he requires the treatment recommended by Dr Berton for his bilateral knee conditions because he has significant pain in the knees, movement is restricted and both knees are unstable and have given way on a number of occasions. He has difficulty walking and requires a crutch for support on most days, especially when outside the home. He continues to take painkillers to manage the pain.
In his third statement Mr Whiteman says that his understanding is that to avoid total knee replacement, Dr Berton has recommended bilateral arthroscopy. He also notes in that statement his recent weight loss as a result of gastric sleeve banding surgery performed on 1 April 2021 and anticipates ongoing weight loss.
The purpose of the arthroscopic surgery recommended by Dr Berton is not to avoid total knee replacement. That seems inevitable in this case. Dr Reece says that the arthroscopy will hasten the need for total knee replacement surgery, which also seems to be the view of
Dr Kleinman although not as clearly expressed. Dr Berton says in his report dated 18 March 2019 that there may be a potential role for arthroscopy to further investigate and potentially remove what does appear to be a potential root tear of the medial meniscus. In that report
Dr Berton is predominantly addressing the left knee. He does not advance any further reason for the proposed surgery in his later report dated 13 May 2019, simply saying that he will put in an application to the insurer for bilateral knee arthroscopy.Mr Whiteman’s general practitioner, Dr Jongbloed, wrote to EML on 10 November 2017 seeking advice if the insurer would accept liability for the right knee problem following the motorbike accident. He noted the right knee MRI scan in May 2017 which showed a medical meniscus tear and focal grade 3 chondromalacia in the medial trochlear groove. This is the pathology Dr Reece addressed in the arthroscopy she performed on 23 May 2018, as noted in [43] above.
In Diab v NRMA Insurance Ltd[33], Roche DP set out at [88] in the context of s 60 the relevant matters, according to the criteria of reasonableness, as including but not necessarily limited to, the matters noted by Burke CCJ in Rose v Health Commission (NSW)[34], namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[33] [2014] NSWWCCPD 72 (Diab).
[34] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
At [89], Roche DP noted that:
“With respect of point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Dealing with these matters in Diab, I note:
(a) neither Dr Reece, who has performed bilateral arthroscopies on the applicant’s knees, nor Dr Kleinman think that the bilateral arthroscopic surgery now recommended by Dr Berton is appropriate. They both advocate weight loss, which the applicant has commenced with success, aided by the gastric sleeve banding surgery performed on 1 April 2021. Further weight loss is anticipated.
Dr Reece recommends strengthening of the applicant’s muscles. Dr Kleinman recommends participation in an exercise programme under the supervision of an exercise physiologist to strengthen the quadriceps and hamstring muscles and maintain range of motion in the knees. Localised use of Voltaren Gel and simple oral ant-inflammatories such as long acting paracetamol will be of benefit;(b) the alternative treatment outlined above is advocated by Dr Reece and
Dr Kleinman as being effective. In the longer term, a total knee replacement is the really only effective long term solution to the right knee problem. Dr Kleinman says that when Mr Whiteman can no longer tolerate the ongoing pain and stiffness in his knees, he will come to total knee joint replacement surgery. Certainly, Dr Reece and seemingly Dr Kleinman are of the view that further arthroscopic knee surgery will only hasten total knee replacement surgery.
Dr Porteous is of the view that it is more likely than not within the short to medium term that Mr Whiteman will require early bilateral total knee joint replacements, with the need for these accelerated by the subject work accidents.(c) the cost of the arthroscopic surgery is not an issue, notwithstanding the respondent’s submission that no such cost has been put in evidence by the applicant;
(d) the actual or potential effectiveness of the treatment is very much in issue. Neither Dr Reece nor Dr Kleinman are of the opinion that it will be effective apart from, in Dr Kleinman’s view, in giving temporary relief from pain which will recur with the continued deterioration in the knees. Dr Berton does not give evidence as to the likely effectiveness of the surgery. In his report dated 18 March 2019 he is discussing the left knee and says that there may be a potential role for arthroscopy to further investigate and potentially remove what does appear to be a potential root tear of the medial meniscus. He did not suggest intervention at that time. Dr Berton does not give a reason for the proposed right knee arthroscopy, although he does note in the report to Dr Innis dated 18 March 2019 that Mr Whiteman underwent an arthroscopy of the right knee on 23 May (2018) with chondroplasty to the medial femur and medial meniscectomy, and
(e) neither Dr Reece nor Dr Kleinman accept that the arthroscopic surgery proposed by Dr Berton is likely to be effective. Dr Berton does not offer comment on the likely effectiveness of the proposed surgery. Dr Innis says that the proposed bilateral knee arthroscopy is reasonable and necessary because he trusts
Dr Berton’s experience and opinion as a knee sub-specialist and he has been referring patients to him for over 20 years. Dr Porteous endorses the proposed surgery on the basis of Dr Berton’s opinion, to investigate and treat the pathology found, based on his own practice within his area of expertise. However Dr Berton has not specified what is the pathology he wishes to treat in the right knee. It seems that the proposed right knee arthroscopy is more for investigation only, not for treatment of a known condition.
In my view and taking these factors into account, the proposed arthroscopic surgery on the right knee is not reasonably necessary as a result of the injury that the applicant suffered to his right knee on 1 May 2017, aggravated by the fall off the motorbike on 3 August 2017. The effective treatment in the short term is that proposed by Dr Reece and Dr Kleinman, a course on which Mr Whiteman has already embarked with weight loss. There is simply insufficient evidence that the right knee arthroscopy is likely to be appropriate or effective. It is quite likely to hasten the need for the inevitable total knee replacement which Mr Whiteman must undergo to give him effective long lasting relief from the consequences of injury to the right knee in the form of pain, restriction of movement and significant restriction of activities.
Mr Whiteman is not correct when he says that the recommended bilateral arthroscopic surgery will avoid total knee replacement. It is likely to hasten it.
Treatment expenses for cognitive behaviour therapy and pain management
Based on the opinion of Suzanne Osei, clinical psychologist, in her report dated 17 July 2020 the applicant submits that there should a finding that the applicant is suffering from a diagnosable psychological condition in the form of Adjustment Disorder (Anxiety and Depression). Ms Osei says that Mr Whiteman meets the criteria for this illness.
In her report Ms Osei records the history provided by the applicant of the several work related injuries over the previous three years, and the mental health issues as a result of dealing with chronic pain, and the stress of dealing with a series of events whereby his pay was significantly changed and he ended up being investigated after being overpaid by EML. Mr Whiteman related to Ms Osei that prior to commencing anti-anxiety medication and anti-depressant medication he suffered from disturbed sleep. Since commencing that medication, his sleep had settled. He was unable to participate in his usual hobbies and leisure time activities because of the pain he was suffering, and his short term memory was affected. According to the Depression, Anxiety Stress Scale (DASS-42) completed by Mr Whiteman, as at 3 July 2020 he suffered from severe stress, extremely severe anxiety and severe depression. That was noted to be a self-reported instrument.
Ms Osei outlined the applicant’s need for treatment as follows:
“Mr Whiteman has had some improvement with the use of anti-depressant medication.
However, it is recommended that Mr Whiteman participate in Cognitive Behavioural Therapy and Pain Management counselling to assist him to improve his symptoms of anxiety and depression and to learn techniques to improve his pain management.”The conclusion of the report is that Mr Whiteman has multiple injury sites that cause pain and have decreased his function. These will impact significantly on his ability to improve and return to work. His pain and anxiety interact to wind up his nervous system and exacerbate each condition.
The respondent relies on the opinion of Dr Graham Vickery in his report dated 11 August 2020. Dr Vickery finds that the applicant does not suffer from a diagnosable psychiatric condition and quotes from a report of Dr John Prickett, pain management specialist, dated 21 November 2018 which sets out various household, child minding and hobby activities in which the applicant had been engaging. Dr Vickery also refers to a report of Dr Con Kafataris, Injury Management Consultant, dated 20 Match 2020 which the applicant notes is not in evidence.
The injury on which Dr Vickery was asked to comment was that of 3 August 2017, specifically to the right hand. It is apparent that the applicant suffered a significant injury to the hand on that day in the motorbike accident. Dr Vickery is of the opinion that the psychological sessions proposed for Mr Whiteman were not reasonably necessary as she was not suffering from a diagnosable psychiatric condition.
The report of Dr Prickett dated 21 November 2018 is not in evidence. However there is a short report dated 10 December 2020 in evidence[35]. In that report Dr Prickett says that he had not reviewed the applicant for a couple of years but supports his access to some psychology services to help him adapt and learn better coping strategies for his persisting symptom experience. It has a good evidence base in assisting patients with an ongoing pain experience.
[35] AALD p 11.
In the Application the applicant claims the cost of Cognitive Behaviour therapy and pain management. There are two schedules of Ms Osei’s consultation fees attached to the Application[36]. The applicant seeks payment of such fees in these schedules as have not been paid to date by EML.
[36] Application pp 239-240.
It is quite clear that the applicant has suffered significant pain and restriction in his daily activities as a result of the right knee injury suffered on 1 May 2017 and 3 August 2017. He has been afforded pain management treatment in the past by Dr Trickett. I accept the diagnosis of Ms Osei that because of his injuries, which I acknowledge not all of which are the subject of the current proceedings, have resulted in the Adjustment Disorder (Anxiety and Depression) diagnosed by her. I find that the treatment recommended by Ms Osei, the cost of which is claimed by the applicant, is reasonably necessary as a result of the injury that
Mr Whiteman suffered to his right knee on 1 May 2017 and 3 August 2017. In terms of the criteria of reasonableness in respect of s 60 expenses noted at [88] in Diab and referred to above at [76], the treatment is appropriate and is likely to improve his symptoms of anxiety and depression, and to assist him to learn techniques to improve his pain management.
Summary
The applicant suffered injury to his left knee arising out of or in the course of his employment with the respondent on 3 August 2017.
Award for the respondent in respect of the applicant’s claim that he suffered a condition in his left knee consequent upon injury to the right knee on 1 May 2017.
The arthroscopic surgery to the applicant’s left knee recommended by Dr Berton is not reasonably necessary as a result of injury to the left knee on 3 August 2017.
The arthroscopic surgery to the applicant’s right knee recommended by Dr Berton is not reasonably necessary as a result of injury to the right knee on 1 May 2017.
The Cognitive Behaviour Therapy and pain management treatment claimed by the applicant is reasonably necessary as a result of injury to the right knee on 1 May 2017.
The respondent is to pay for the cost of the Cognitive Behaviour Therapy and pain management treatment claimed by the applicant in the Application.
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