Woodward v Cerebral Palsy Alliance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woodward v Cerebral Palsy Alliance [2023] NSWPIC 498
APPLICANT:	Maxine Woodward
RESPONDENT:	Cerebral Palsy Alliance
MEMBER:	Jill Toohey
DATE OF DECISION:	25 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of total right knee replacement; no dispute as to injury; no dispute the applicant had pre-existing degenerative condition; no dispute the proposed surgery was reasonably necessary treatment for the applicant’s condition; whether the proposed surgery was reasonably necessary as a result of the accepted injury; reliability and credibility of the applicant’s evidence considered; relevance of previous right knee injury considered; pre-existing condition rendered more symptomatic by the injury; Murphy v Allity considered; Held – finding that the injury materially contributed to the need for treatment; responded to pay the cost of an incidental to the total right knee replacement.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her right knee arising out of or in the course of her employment with the respondent on 24 July 2022. 2. The right total knee replacement proposed by Dr Vasili is reasonably necessary treatment as a result of the applicant’s injury on 24 July 2022. 3. The respondent is to pay the costs of and incidental to the proposed treatment.

STATEMENT OF REASONS

BACKGROUND

On 24 July 2022, Maxine Woodward, the applicant, was working as a carer in a group home run by the respondent, Cerebral Palsy Alliance. She was helping a resident put on his shoes when he had a drop seizure and fell on her. She sustained an injury to her lumbar spine and right knee for which the respondent has accepted liability.
By an Application to Resolve a Dispute (ARD) lodged with the Commission on 19 June 2023, Mrs Woodward claims the cost of right total knee replacement surgery recommended by
Dr Con Vasili.
There is no dispute that Mrs Woodward has a pre-existing degenerative condition in her right knee that was aggravated by the incident on 24 July 2022. There is no dispute that the proposed surgery is reasonably necessary treatment for her right knee condition.

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the right total knee replacement proposed by Dr Vasili is reasonably necessary treatment as a result of
Mrs Woodward’s injury on 24 July 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing on 15 September 2023. Mrs Woodward was represented by Mr Allen Parker of counsel, instructed by
Mr Damien Hill. The respondent was represented by Mr Andrew Parker of counsel, instructed by Ms Fatma Zreika. The parties could not reach agreement and the matter proceeded to an arbitration hearing.

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;
(c)    Application to Admit Late Documents (AALD) lodged by the applicant on
7 September 2023 and attached documents, and
(d)    AALD lodged by the respondent on 13 September 2023 and attached documents.

Oral evidence

There was no oral evidence.

Mrs Woodward’s evidence

Mrs Woodward provided an undated statement of evidence with the ARD.[1] She states that she is 70 years old and has worked for the respondent for about 15 years. She describes her duties generally, and the incident on 24 July 2023 the details of which are not in dispute. She also refers to the lumbar spine injury sustained on that date for which the respondent has accepted liability and which is not presently relevant.
[1] ARD page 1.
Mrs Woodward states that this is her “first significant claim for workers compensation”. She states that she had a work injury several years ago when she tore her left knee meniscus after which she was on light duties and “the injury came good”. She cannot recall whether she lodged a formal workers compensation claim or not. On 23 February 2021, she underwent a left knee replacement under Dr Vasili. She states this was “due to wear and tear” and was not a workers compensation matter.
Mrs Woodward states that she was “fully fit prior to my current injury”. She was doing “frequent back-to-back shifts” during the COVID-19 pandemic without any problems. In particular, she states, she had “no problems with my lower back or right knee prior to this incident, to the best of my recollection” and she was walking 2km every day.
After completing her shift on 24 July 2022, Mrs Woodward drove home. She had to stop and get out of the car three times because of the pain in her right knee and there was a lot of swelling around the knee. She attended on her general practitioner, Dr Shuhana Perveen. Dr Perveen referred her to Dr Vasili who had previously operated on her left knee.
On 26 July 2022, Mrs Woodward saw Dr Vasili who referred her for an MRI of her right knee. An MRI on 1 August 2022 showed advanced degenerative changes. On 9 August 2022,
Dr Vasili recommended a right knee arthroplasty.
Mrs Woodward states that she uses a walker now and finds it helps with her lower back and knee pain. She refers to a report dated 3 November 2022 of an assessment for the respondent by orthopaedic surgeon, Dr Anthony Smith. She states that she disagrees with Dr Smith’s opinion because she “had no symptoms in [her] right knee prior to the work accident” and she now needs a knee replacement.
Mrs Woodward states that she saw Dr Vasili on 14 February 2023 because of her worsening right knee pain. An X-ray on the same date showed “osteoarthritis, severe in the medial compartment”. She continues to experience severe pain in her right knee. Her mobility has declined and she can only walk short distances before her right leg/knee can no longer bear any weight and she is at risk of falling. Before her injury, she would enjoy walking in the park and around shopping centres but she is no longer able to do these things.

Supplementary statement

In a supplementary statement lodged with the AALD on 7 September 2023, Mrs Woodward refers to her earlier statement regarding a work injury in which she tore her left knee meniscus. She states “I confirm that this is a typographical error and in fact I tore my right knee meniscus”.[2]
[2] Applicant’s AALD lodged on 7 September 2023, page 1.
Mrs Woodward states that she has had the opportunity to review Dr Perveen’s clinical file attached to the Reply. She refers to notes showing she saw Dr Perveen on 18 January 2017 for right knee pain. She states she does not “have much of a recollection of the incident that caused the pain”. She refers to records showing she underwent an MRI scan on
23 January 2017 confirming a tear in her meniscus. She states “This is the injury that I was referring to at paragraph 8 of my earlier statement”. She does not recall losing any time off work because of that injury and states “the records indicate it had come good by March 2017.”
Mrs Woodwood refers to Dr Perveen’s record of a further injury to her right leg on 21 May 2017. She states she has “a good recollection of that incident” and she describes how it occurred. She recalls that it “caused a recurrence of [her] right knee pain as well as pain about [her] right hip.” She does not recall losing any time off work and she was given light duties for several weeks. She refers to a record on 2 June 2017 indicating she had some physiotherapy and had requested a return to full pre-injury duties, and a further record on 9 June 2017 that her pain had deteriorated over the previous week. She states that she managed her symptoms with medication, she returned to work on full unrestricted duties and was able to undertake them “without issue” for several years until the injury which is the subject of the present claim.
Mrs Woodward states that, prior to her return to unrestricted duties, she was required to undergo a comprehensive fitness test because some residents can become aggressive, and staff need to be fully fit to deal with “difficult and physical situations”. She passed that test “with no issue”. She did not have cause to attend on Dr Perveen for any right knee difficulties between 2018 and July 2022.

General practitioner’s records

Records from Gold Cross Medical Centre from 18 January 2017 to 7 November 2022 are in evidence.[3]
[3] Reply page 52.
On 18 January 2017, Dr Perveen recorded that Mrs Woodward injured her right knee one week earlier at work. She noted “Sudden onset Rt knee pain” and requested an MRI.
On 25 January 2017 Dr Perveen noted that the MRI report showed “Extensive Tear to Medial meniscas [sic]” and Mrs Woodward was “mobilising with some restriction”. She referred
[4] Reply page 36.
Mrs Woodward to Dr Roger Brighton for opinion and management.[4]
On 3 February 2017, Dr Perveen noted that Mrs Woodward had seen Dr Brighton that day. She noted “Recommended Light duties for another one month”. There is no report from
Dr Brighton in the records and no indication of the outcome of the consultation with him.
On 3 March 2017, Dr Perveen noted “Happy to go back full Pre injury duties” and “Symptoms significantly improved”.
On 24 May 2017, Dr Perveen noted “Work place injury again on 21/5/17” and Mrs Woodward was having “pain in whole RT leg”. She noted “Because of previous Knee injury now also having pain in Rt Hip”.
Dr Perveen’s record for 2 June 2017 shows Mrs Woodward “would like to go back full pre injury duties”. She noted:
“pain has improved
how ever since the injury Knee and Hip giving more pain”
On 9 June 2017, Dr Perveen recorded Mrs Woodward’s “knee pain is worsening”. She noted that the MRI showed meniscal tear and degenerative disease and “Patient like to try short course of Endone”. On 6 October 2017, she noted that Mrs Woodward was going to America and “need to take Endone for pain management to help her walking”.
There are no further references in the notes to Mrs Woodward’s right knee pain until
25 July 2022 when she saw Dr Perveen in relation to her present injury. In the meantime, in late 2020 she saw Dr Perveen several times in relation to left knee pain. A report from
Dr Vasili dated 10 May 2021 shows that he performed a left total knee replacement on
[5] ARD page 32.
23 February 2021 with which Mrs Woodward was “very satisfied”.[5]

Dr Vasili’s reports

On 26 July 2022, Dr Vasili reported to Dr Perveen that Mrs Woodward remained “extremely satisfied” with the total left knee replacement.[6] He said:
“Maxine now presents with an exacerbation of right knee pain following a workplace injury where a seizing client fell on her right leg. Maxine describes diffuse right knee pain which wakes her, is exacerbated by weight-bearing and driving, and responds to Nurofen. The knee swells, locks, clicks and gives way. Due to this complaint, Maxine finds it difficult to attend to footwear, negotiate stairs, and into the car.
On examination, the gait was antalgic. Maxine was unable to squat. The right knee demonstrated an effusion, diffuse tenderness, and an active range of 5-80 degrees. Further assessment was not feasible due to pain.”
[6] ARD page 32.
On 9 August 2022, Dr Vasili reported to Dr Perveen that there had been “minimal improvement” and Mrs Woodward continued to complain of severe right knee pain. He noted similar findings on examination as previously and he noted the report of the MRI. He said given “the extent of the medial meniscal injury and the articular cartilage loss” he recommended total knee replacement “to address [her] presenting complaint”.[7]
[7] ARD page 34.
On 15 August 2022, Dr Vasili responded to a request from the insurer for further information.[8] He referred to the report of the MRI scan on 1 August 2022. He stated:
“1. … Given the acute onset of symptoms following the injury on 24 July 2022, the most likely diagnosis is an acute meniscal tear complicating pre-existing degenerative changes.
2. The described incident of the client falling on Maxine’s right knee seems to be the predominant cause of the current presentation.
3. The imaging demonstrates degenerative changes in the right knee which predate the injury, but which were minimally symptomatic. The described incident most likely exacerbated the symptoms.
4. The radiological findings, the larger fusion and extensive meniscal tear, seem to be consistent with the described mechanism of injury.
5. I am not aware of any pre-existing injuries directly affecting the current presentation.
…
7. It is possible that Maxine may have required a right total knee replacement in the future given the imaging findings, and the history of a left total knee replacement last year.
…”
[8] ARD page 35.
On 15 November 2022, Dr Vasili reported to Dr Perveen that Mrs Woodward remained “bothered by severe right knee pain” which had precipitated two recent falls and required her to use a walking frame over longer distances.[9]
[9] ARD page 36.
On 14 February 2023, Dr Vasili reported that Mrs Woodward presented that day with worsening severe diffuse right knee pain and recurrent falls. He noted findings on examination of the left knee. He noted that X-rays showed the left knee replacement was in good position without complication and there was “severe narrowing of the right knee medial femorotibial compartment with subchondral sclerosis and osteophytes, and mild narrowing of the patellofemoral compartment with osteophytes”.[10]
[10] ARD page 37.

Dr Giblin’s reports

Orthopaedic specialist, Dr Matthew Giblin, saw Mrs Woodward for assessment on
11 April 2023 and provided a report of the same date.[11] He took a history of the injury on
[11] ARD page 27.
24 July 2022 which is uncontroversial. He noted that Mrs Woodward’s right knee stopped her walking for more than approximately 300m, and that was with a frame. She could not manage stairs and was unable to squat or kneel.
Dr Giblin took a history that, before the accident, Mrs Woodward was “active, working full time, doing extra shifts and all the housework.” He noted the history of successful left total knee replacement and said she “never required any treatment for the right knee prior to this injury.” He noted his findings on examination and reports of MRI of the left knee on
19 November 2020, MRI of the right knee on 1 August 2022 and X-ray of both knees on
14 February 2023.
Dr Giblin said Mrs Woodward’s injuries were consistent with the accident she described. She had an “aggravation of underlying degenerative change of her lumbar spine and her right knee, both of which have not settled since the time of the original injury and the associated pain is due to the [injury on 24 July 2022].” He said the symptoms of pain in her right knee could reasonably be attributed to the injury which was an aggravation of pre-existing degenerative change.
With respect to reports of Dr Anthony Smith dated 3 November 2022 and 11 November 2022, Dr Giblin said he agreed with Dr Smith that Mrs Woodward has “a significant aggravation of pre-existing degenerative change” and that she requires a total knee replacement. He disagreed with Dr Smith’s opinion that the knee replacement would be treating her knee arthritis and not any pathology that arose from the incident on 24 July 2022. He said:
“Whilst ever there is some truth to this statement that the knee replacement will be treating her knee arthritis, the aggravation of that arthritis which was caused by the fall, has not ceased. Considering the nature of her injury, I consider there has been new pathology caused by the fall and be this [sic] further deterioration of her degenerative change or even further tearing of the medial meniscus. She was extremely asymptomatic prior to the injury and it has only been since the injury that she has now ended up on a walking frame. If it hadn’t been for the injury, she would not be In this position at the moment and wouldn’t be requiring a total knee replacement at this point in time.”
Dr Giblin provided a further report on 6 September 2023.[12] He referred to the findings in the MRI report of 23 January 2017. In relation to Dr Smith’s report that there would appear to be little difference with regard to the right medial meniscus between 2017 and 2022, he said:
“This may well be the case, but I am not convinced that the meniscus was just the cause of this patient’s pain and as mentioned in my report, I felt that the incident caused an aggravation of underlying degenerative change of the knee of which the meniscus is only one part and I think it is more the degenerative changes that have been aggravated permanently that are the current cause of the patient’s symptoms.”
[12] Applicant’s AALD page 5.
Dr Giblin said the MRI report of 23 January 2017 did not cause him to change his opinion and he remained of the view that the proposed surgery is reasonably necessary as a result of the July 2022 workplace injury.

Dr Smith’s reports

Dr Smith saw Mrs Woodward on 26 October 2022 and reported to the insurer on 3 November 2022.[13]
[13] Reply page 15.
Dr Smith observed that there were no general practitioner notes available but there was a note from Dr Vasili dated 26 July 2022 referring to the satisfactory left knee replacement and “an exacerbation of right knee following a workplace injury”. Dr Smith noted that Mrs Woodward’s right knee “swells, locks, clicks, and gives way”. He noted the report of the MRI on 1 August 2022. He noted investigations of her lumbar spine and cervical spine following the injury and said there was “no other relevant past medical history”.
Dr Smith said Mrs Woodward had bilateral knee osteoarthritis. The left knee was replaced successfully about 12 months before 24 July 2022. He said the right knee was “substantially asymptomatic” and “only mildly symptomatic prior to that date”. Later in his report he described the right knee as “previously relatively asymptomatic”. He diagnosed “a significant exacerbation/aggravation to her right knee osteoarthritis, which continues to be painful”.
Dr Smith said in his opinion the meniscal tear seen on the MRI of the right knee would pre-date the injury on 24 July 2022. He said the radiological findings were not the result of injury but were the consequence of long-standing degenerative process that was present in Mrs Wodward’s knee before the incident on 24 July 2022.
As to whether Mrs Woodward would have required a right total knee replacement regardless of the incident on 24 July 2022, Dr Smith said about 20% of the population of Caucasian origin have knee osteoarthritis and less than half of that group have enough symptoms to warrant knee replacement. He said those who have enough symptoms to warrant knee replacement, and have replacement on one side, commonly require the other side to be done but “no one can predict these things with certainty”.
In a supplementary report dated 11 November 2022,[14] Dr Smith stated that Mrs Woodward sustained “a severe aggravation to a previously mildly symptomatic right knee osteoarthritis”. He referred to the MRI following the injury, the images of which he said were not available to him but he noted the radiologist reported an extensive complex tear in the medial meniscus. He said were that to be a consequence of the injury, then there would be bone marrow oedema immediately under the meniscus in the tibial plateau or in the femoral condyle, but no such anomaly was reported. He concluded “the meniscal injury/degenerative disease” pre-dated of the accident on 24 July 2022. He said:
“The knee replacement will be treating her knee arthritis.it will not be treating any pathology that arose in the accident on 24 July 2022.”
[14] Reply page 21.
In a further report dated 25 July 2023,[15] Dr Smith referred to the report of the MRI of the right knee from 23 January 2017. He said it described the findings on the medial meniscus in the same terms as the MRI on 1 August 2022. He said Dr Giblin had not had the advantage of seeing that report. Dr Smith considered there was no significant change in the five years between 2017 and 2022. He reiterated his comment that, had the substantial meniscal tear seen on the MRI on 1 August 2022 been the result of that incident, there would be bone marrow oedema in the adjacent tibia and or femoral condyle, and none was reported, indicating, he said, that the tear is old.

SUBMISSIONS

[15] Respondent’s AALD lodged 13 September 2023 page 1.

The applicant’s submissions

Mr Allen Parker submits that it is understandable that Mrs Woodward forgot, when providing her original statement of evidence, that she had a previous injury to her right knee. He submits that the medical records show she had injuries to her left and right knees in 2017 and she last saw her doctor regarding her right knee on 9 June 2017. After her right knee symptoms resolved, she did not see her doctor again about the right knee until her injury in July 2022.
Mr Parker submits that Mrs Woodward forgot to mention her earlier injury to Dr Vasili and the independent medical examiners but that this was resolved by putting her full history to
Dr Giblin, who in his most recent report took that history into account and still says the proposed surgery is reasonably necessary as a result of the 2022 injury. The full history was also put to Dr Smith.
Mr Parker submits that, regardless of the earlier injury, Mrs Woodward’s symptoms since the July 2022 injury are new. She performed vigorous duties working with elderly people for approximately five years from 2017 without any symptoms. The injury in July 2022 brought on severe pain and accounts for her present symptoms.
Mr Parker submits that Dr Vasili reports that Mrs Woodward needs the proposed surgery for her presenting complaints which are due to the 2022 injury. Dr Vasili says he believes the incident seems to be the predominant cause of her current symptoms. The imaging showed degenerative changes in the right knee which predated the injury, but which were minimally symptomatic, and the incident most likely exacerbated the symptoms.
Mr Parker submits that Mrs Woodward’s claim is supported by the general practitioners’ notes which show no consultation regarding problems in her right knee between 2017 and
[16] In her statement, Mrs Woodward say she did not see her doctor about her right knee between 2018 and 2022. The last record of seeing Dr Perveen is dated 6 October 2017.
July 2022.[16] Dr Vasili said it was possible that Mrs Woodward would need surgery in future in light of the scans, and history of her right knee, but he nevertheless says she needs the surgery now because of the injury in July 2022.
Mr Parker submits that the evidence supports the claim that the proposed treatment is reasonably necessary as a result of the injury to Mrs Woodward’s right knee on 24 July 2022.

The respondent’s submissions

Mr Andrew Parker submits that Mrs Woodward is not a reliable or credible historian and that the doctors’ opinions based on her evidence cannot be accepted. The clinical notes show that she suffered injury to her right knee on 18 January 2017 after which she returned to work before injuring her right knee again, and her right hip, on 24 May 2017. On 2 June 2017 her pain was worse and by 9 June 2017 she needed Endone to manage it.
Mr Parker submits that I would be sceptical of Mrs Woodward’s evidence and would find that it is deliberately or inadvertently misleading. She now says she was mistaken in referring to her left leg injury but this is still a problem for her credit and reliability. She also says in her first statement that this is her first workers compensation claim which is not correct.
Mr Parker submits that Mrs Woodward states that she had no problems previously with her back or knee. However, the clinical notes show that she was referred to Dr Brighton in January 2017 and to a physiotherapist in May 2017 when there was plainly a significant tear in the meniscus and degenerative change in her right knee. Mr Parker submits it is implausible that she forgot the earlier injury, that she had undergone MRIs, been referred to a specialist, and had submitted to workers compensation claim.
Mr Parker submits that Mrs Woodward’s claim that she performed light duties for a time and then the right knee “came good” in 2017 cannot be accepted. She underwent treatment for at least five months for her injury. The evidence shows she had significant problems and it is implausible that she forgot them.
Mr Parker submits that Mrs Woodward’s supplementary statement should be disregarded. He submits that she only made it after she was “caught out” and after seeing the clinical notes.
Mr Parker submits that it is fatal to Dr Vasili’s opinion that he did not know the full history. He understood Mrs Woodward had few problems following the 2017 entry and then returned to work whereas she had significant pathology which is virtually identical to the present pathology. Nor did she tell Dr Giblin about the earlier injury. Mr Parker submits that
Mrs Woodward works in health care and it cannot be accepted that she forgot. He submits that Mrs Woodward’s evidence cannot be accepted unless it is independently corroborated.
With respect to Dr Giblin’s opinion, Mr Parker submits it is based on Mrs Woodward being “extremely asymptomatic” prior to her injury and symptomatic after it, and using a walking frame; his opinion is based entirely on the history she gave him, with no idea of the true condition and history.
Mr Parker submits that Dr Smith provides a fair report. Dr Smith finds that the injury on
24 July 2022 aggravated Mrs Woodward’s pre-existing condition. He said 20% of the population have degeneration of the kind seen on her scans, and that is what the proposed surgery is to treat. His observation that there is little difference in the right medial meniscus between 2017 and 2022 is fundamental to his opinion.

Submissions in reply

In reply, Mr Allen Parker submits that Dr Vasili’s opinion is that the condition in
Mrs Woodward’s right knee was exacerbated by the injury in July 2022. He describes her presenting symptoms including swelling, locking, difficulties with stairs and so on. Prior to this injury, she was able to do all these activities including her duties at work. She saw her doctor regularly for five years without complaints about her right knee. The symptoms resulting from her 2022 injury need treatment, as Dr Vasili says.

CONSIDERATION

Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that Mrs Woodward sustained injury to her right knee on 24 July 2022. There is no dispute that the proposed total knee replacement it is reasonably necessary treatment for the condition in her right knee. The issue for determination is whether the proposed treatment is reasonably necessary as a result of her workplace injury.
A “common sense” approach is to be taken to determining questions of causation, by careful analysis of the evidence, including a careful analysis of the expert evidence: Kooragang Cement Pty Ltd v Bates and Kirunda v State of New South Wales (No 4).[17]
[17] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang); Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45.
Mrs Woodward bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[18] and Nguyen v Cosmopolitan Homes.[19]
[18] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[19] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Mr Andrew Parker submits that Mrs Woodward’s failure to mention in her first statement and to the doctors that she had injured her right knee in 2017 raises serious questions as to the reliability and credibility of her evidence. He submits that I would find her evidence is deliberately or inadvertently misleading and cannot be accepted unless it is independently corroborated.
I agree that Mrs Woodward’s evidence raises serious questions about her reliability and credibility. It is possible that she forgot the earlier injury, or confused it with the condition in her left knee. However, even if she recovered from the January 2017 injury within a relatively short time, and had no reason to see her doctor about her right knee again after October 2017, it is difficult to accept that she forgot that she saw Dr Perveen over several months about her right knee, that she underwent an MRI, that she was referred to an orthopaedic specialist and a physiotherapist, and that she lodged a workers compensation claim.
Mrs Woodward’s supplementary statement offers no explanation for her failure to mention the earlier injuries in her first statement. She simply states that the reference to the left knee in her first statement was "a typographical error” and she “in fact tore my right meniscus”. It is conceivable that she forgot or overlooked the earlier injury, but she does not say so. In the absence of any further explanation, it is very difficult to accept that it was a mere typographical error. She underwent the left knee replacement in February 2021 four years later. It is difficult to credit that she confused the two, and Mrs Woodward does not say she did.
Nor does the supplementary statement offer any explanation as to why Mrs Woodward did not mention the earlier injury to Dr Vasili, Dr Giblin or Dr Smith. Dr Giblin took a history from that she “never required any treatment for the right knee prior to this injury”. That is plainly incorrect and it is reasonable to infer that Dr Giblin obtained that history from Mrs Woodward herself.
I am not persuaded to find that Mrs Woodward deliberately withheld information about her 2017 injury. However, for the reasons set out above, her evidence and the opinions of the doctors based on that evidence must be approached with caution.
All that said, and even if Mrs Woodward deliberately withheld information, I am not persuaded that the problems with her evidence are fatal to her claim. It would be a different matter if there was evidence of continuing symptoms or complaints about her right knee in the period from 2017 to July 2022 and she had overlooked or withheld that information. Such evidence would fundamentally undermine the doctors’ opinions about the significant aggravation or exacerbation in her condition resulting from the injury in July 2022 and the need to treat symptoms resulting from it.
Dr Perveen’s records on 18 January 2017 show that Mrs Woodward injured her right knee at work one week earlier. On 3 February 2017, Dr Perveen noted that Mrs Woodward had seen Dr Brighton that day. There is no report from Dr Brighton in evidence, and nothing in
Dr Perveen’s records to indicate the outcome of his consultation and nothing to suggest
Mrs Woodward saw him again. On 3 March 2017, Dr Perveen noted Mrs Woodward’s symptoms were “significantly improved” and Mrs Woodward was “happy” to resume her pre-injury duties.
On 24 May 2017, Dr Perveen noted “work place injury again on 21/5/17” and Mrs Woodward was having “pain in whole RT leg”. She noted “Because of previous Knee injury now also having pain in Rt Hip”. This record does not refer to a further injury to the right knee or continuing symptoms. Mr Andrew Parker submitted that my knowledge and experience would lead to me conclude that pain in the right hip would involve symptoms in the right knee but I am not persuaded that I can draw that conclusion without some medical evidence to that effect.
On 2 June 2017, Dr Perveen recorded Mrs Woodward’s knee was giving her more pain. Her symptoms were sufficient to warrant a further MRI which was performed on 2 June 2017.[20] On 9 June 2017, Mrs Woodward’s knee pain was worsening and on 6 October 2017 she needed Endone “for pain management to help her walking” on an overseas trip.
[20] Reply page 29.
Dr Perveen’s records show that Mrs Woodward was still experiencing symptoms in her right knee in October 2017 but there is no evidence in the records that Mrs Woodward had any symptoms in her right knee between October 2017 and July 2022. Mrs Woodward says she returned to work and worked full time in relatively heavy duties, and there is no evidence to the contrary. She continued to see her general practitioner for various unrelated complaints throughout that period without any records of symptoms in her right knee. It is reasonable to conclude that they had ceased or were not serious enough to warrant seeing her doctor.
If Mrs Woodward had any symptoms in her right knee after 2017, the evidence indicates they were only mild. In his report on 3 November 2022, Dr Smith took a history that her right knee was “substantially asymptomatic” around the time of the left knee replacement and “only mildly symptomatic prior to that date”. Dr Giblin described her knee as “extremely asymptomatic” prior to the injury in July 2022.[21] It is reasonable to infer that Mrs Woodward described some mild symptoms to Dr Smith in the intervening period.
[21] Report 11 April 2023.
The absence of any record in the general practitioners’ notes of right knee symptoms between October 2017 and July 2022 lends weight to Mrs Woodward’s claim that she had recovered from her 2017 injury and that it did not interfere with her work or everyday activities for approximately five years.
There is no dispute that the incident on 24 July 2022 aggravated or exacerbated the degenerative condition in Mrs Woodward’s right knee.
On 26 July 2022, Dr Vasili noted Mrs Woodward’s presenting symptoms following the exacerbation of her right knee pain in the 2022 workplace injury. She described diffuse right knee pain, her knee would swell, lock, click and give way, and she found it difficult to attend to footwear, negotiate stairs and into the car. Her gait was antalgic and she was unable to squat. On 9 August 2022, she continued to complain of severe right knee pain and on 14 February 2023 the pain was worse. Given the extent of the medial meniscal injury and the articular cartilage loss, Dr Vasili recommended total knee replacement “to address her presenting complaint”.
Dr Smith and Dr Giblin are substantially in agreement as to the effects of the injury on 24
July 2022. Dr Smith considered that Mrs Woodward had a “significant exacerbation/aggravation” of her right knee osteoarthritis which continued to be painful.[22]
[22] Reply page 17.
[23] ARD page 30.
Dr Giblin agreed. [23] Both described similar, continuing symptoms following the 2022 injury. It is clear that, whether “mildly symptomatic” or “extremely asymptomatic” previously, Mrs Woodward’s right knee was rendered considerably more symptomatic by her injury.
In Rose v Health Commission (NSW)[24], Burke CCJ considered what constitutes reasonably necessary treatment. He said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health.”
[24] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose).
His Honour added: “Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
It is not clear from Dr Smith’s report why he discounts the 2022 injury as playing any part in the need for the total knee replacement. Despite saying there had been a significant exacerbation of her symptoms which was continuing, he simply states that the surgery will be treating her knee arthritis and not any pathology that arose in the accident on 24 July 2022. He noted that the findings on the MRIs in 2017 and 2022 were virtually identical. However, that does not take account of the increase in her symptoms.
Dr Giblin disagrees with Dr Smith. He explains his reasons. He agrees that there is a “some truth” to the statement that the knee replacement will be treating Mrs Woodward’s arthritis but he says the aggravation caused by the fall in July 2022 has not ceased. He states that, had it not been for the injury, she would not be “in this position” at the moment and would not require the total knee replacement at this point.
The basis for Dr Giblin’s statement that there was “new pathology caused by the fall” is not clear. He refers to further deterioration of the degenerative change ”or even further tearing of the medical meniscus”. His statement is not supported by the MRIs or other scans. However, he states clearly the symptoms that now require treatment.
Dr Vasili agrees with Dr Giblin. He considered Mrs Woodward “may have required a right total knee replacement in the future” given the imaging findings and following the history of the left total knee replacement the previous year, but he said it is necessary now to treat the symptoms arising from the 2022 injury. I do not understand Dr Smith to take issue with the descriptions of Mrs Woodward’s current symptoms.
Dr Vasili was not aware of the earlier MRI and appears to understand that the meniscal tear occurred in the incident in July 2022. The MRI report from 2017 makes clear that it predates that incident by at least five years. However, that does not change that he recommends surgery to treat symptoms that resulted from aggravation caused by the 2022 injury.
I agree with Mr Allen Parker’s submission that Mrs Woodward’s failure to tell the specialists about her previous injury has been addressed by putting that history to Dr Giblin and
Dr Smith. Each maintains his opinion. The fact that the findings on the MRI in 2022 were essentially the same as in 2017 did not change Dr Giblin’s opinion.
I prefer Dr Giblin’s opinion that the proposed treatment is reasonably necessary as a result of the 2022 injury to Dr Smith’s opinion. Having seen the earlier MRI report, Dr Giblin maintained his opinion. He considered the effects of the aggravation whereas Dr Smith has not explained why he discounted it as a reason for the treatment other than to say the findings on both MRIs were the same.
In Murphy v Allity Management Services Pty Ltd[25] Deputy President Roche said at [57]-[58]:
“The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[25] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
There is no dispute between Dr Giblin and Dr Smith that the 2022 injury was a significant aggravation and rendered Mrs Woodward’s right knee more symptomatic after a period of approximately five years virtually symptom-free. The need for the treatment results from the injury because its purpose and potential effect is to alleviate the consequences of the injury.
For these reasons, I find that, despite the difficulties with her evidence, Mrs Woodward has established, on the balance of probabilities, that the proposed treatment is reasonably necessary as a result of the injury to her right knee on 24 July 2022.

[2023] NSWPIC 498

25 September 2023