Wyborn v Integrated Steelmill Services Pty Lte
[2023] NSWPIC 478
•15 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wyborn v Integrated Steelmill Services Pty Lte [2023] NSWPIC 478 |
| APPLICANT: | Leonard Wyborn |
| RESPONDENT: | Integrated Steelmill Services Pty Limited |
MEMBER: | Brett Batchelor |
DATE OF DECISION: | 15 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant worker sought compensation pursuant to section 60 for the cost of left total knee replacement surgery for a condition in that knee claimed to be consequent upon an undisputed injury to the lumbar spine; the applicant claimed that the condition in the knee resulted from a change in gait due to the lumbar spinal injury; the respondent employer resisted the claim on the basis that that condition in the knee resulted from a pre-existing degenerative disease in the left knee and not a change in gait; Held – finding that the applicant did experience a change in gait as a result of the injury to the lumbar spine, as a consequence of which he experienced symptoms in his left knee; finding that the condition in the left knee was consequent upon the injury to the lumbar spine; the total left knee replacement surgery found to be reasonably necessary as a result of injury to the lumbar spine; pursuant to section 60 the respondent ordered to pay for the costs of and incidental to the total knee replacement surgery. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a condition in his left knee consequent upon injury to the lumbar spine on 8 August 2018. 2. The left knee replacement surgery recommended by Dr Harbury is reasonably necessary as a result of injury to the lumbar spine on 8 August 2018. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay for the costs of and incidental to the left knee replacement surgery recommended by Dr Harbury in his report dated 9 March 2022. |
STATEMENT OF REASONS
BACKGROUND
Leonard Wyborn (the applicant/Mr Wyborn) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of left total knee replacement surgery as a result of injury to his lumbar spine on 8 August 2018 arising out of or in the course of his employment as a machine operator with Integrated Steelmill Services Pty Limited (the respondent).
On 8 August 2018 Mr Wyborn sustained injury to his back while pushing a 300kg bin with a “jimmy bar”. He underwent physiotherapy treatment for about two months, and returned to pre-injury duties on 5 October 2018.
On 30 November 2018 Mr Wyborn developed significant back pain while doing a bagging task at work, following which he took time off work due to back pain, and was then certified fit for partial work capacity. He came under the care of Dr Willem Volschenk, specialist pain medicine physician, in May and June of 2019 who administered treatment in the form of a median branch block and radiofrequency ablation, which assisted with pain relief in the lower back.
In January 2020 the applicant experienced a recurrence of lower back pain radiating down his right leg after spending time working on a forklift. Dr Volschenk administered further treatment in the form of transforaminal injections, a further medial branch block and radiofrequency ablation. In August 2020 the applicant says that he developed a recurrence of left sided pain radiating to his knee while at work. He received further treatment from
Dr Volschenk throughout 2020 and 2021, and says that he continued to experience flare ups of pain from his lower back into his left hip, down his upper leg and into the left knee. In
July 2021 a spinal cord stimulator implant was placed in the applicant’s lumbar spine which did not provide significant relief. Mr Wyborn began experiencing a series of falls where his knees would give way.The applicant was referred to see Dr Richard Harbury, orthopaedic surgeon, who initially consulted with Mr Wyborn on 9 March 2022. The doctor recorded a history of Mr Wyborn’s back injury and development of pain in the left knee on the anteromedial joint line, present with all walking and causing him to limp, and also occasional rest and night pain.[1] Dr Harbury also noted the applicant ceased work after he had a spinal cord stimulator inserted.
[1] Report Dr Harbury 9 November 2022 to Dr Christine Aus, Application to Resolve a Dispute (ARD) p 316.
Dr Harbury recommended that the applicant undergo a total left knee replacement, and approval for payment of the cost of this surgery was sought from the respondent’s insurer, EML on behalf of icare (EML), on 9 March 2022.[2] In that request Dr Harbury noted alternative treatment options had been considered and expressed the belief that the surgical procedure requested was the optimal one available. He said:
“I believe there to be no significant impact or and pre-existing conditions.
I believe surgery is required as a result of the lumbar back injury sustained in 2018 related to his abnormal gait.
I believe the mechanism of injury on that date is consistent with the current condition.”
[2] ARD p 318.
The applicant was independently medically assessed by Dr Chris Harrington, orthopaedic surgeon, on 10 May 2022 who produced a report dated 12 May 2022.[3] On the basis of that report, EML issued to the applicant a notice dated 17 May 2022 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998, denying liability for the cost of the surgery.[4]
[3] Reply p 1.
[4] ARD p 11.
In his report dated 12 May 2022 Dr Harrington said he did not believe that the applicant’s arthritic left knee is secondary to his lower back injury, and that the pathology was due to varus arthritis, not altered gait. He said of Mr Wyborn:
“I believe the knee replacement is reasonably necessary for his left knee condition, however I do not believe it is related to his lumbar spine.
…
I believe the symptoms are due to varus arthritis, which is constitutional (pre-existing)”
The respondent accepts liability for the back injury on 8 August 2018 and that total left knee replacement surgery is reasonably necessary to address the condition of the applicant’s left knee. It does not accept that the condition in the left knee is consequent upon the back injury.
ISSUE FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the applicant suffers from a condition in the left knee consequent upon injury to the lumbar spine on
8 August 2018.
PROCEDURE BEFORE THE PERSONAL INJURY 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 hearing on 12 September 2023. Ms Balendra of counsel appeared for the applicant briefed by Mr Jones. The applicant was present.
Mr Mueller of counsel appeared for the respondent briefed by Mr McCarthy. A representative of EML attended.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they are as follows.
Applicant
The applicant refers to the evidence in his statement dated 15 March 2023[5] and the significant problems he experienced with his back following the injury on 8 August 2018. After the recurrence of pain in August 2020, the implantation of a spinal cord stimulator by
Dr Volschenk did not provide any significant relief, leading to the referral to Dr Harbury.[5] ARD p 1.
The applicant notes that Dr Harbury in his medico-legal report dated 3 November 2022[6] accepts that the aetiology of the left knee condition is an area that is subject to interpretation, but his suggestion is that it is likely that the knee has become worsened by Mr Wyborn’s abnormal gait secondary to his lumbar pathology. Dr Harbury says that it is not probable that Mr Wyborn would require the proposed procedure if his gait had not become disturbed by his lumbar pathology.
[6] ARD p 17.
The applicant refers to his treatment at the Hunter Pain Clinic under the hands of
Dr Volschenk, and the history recorded by that doctor in his report dated 14 March 2019 to Dr Peter Spittaler.[7] The management recommended is for continuation of active physiotherapy and possibly upgrade to exercise physiology once the lower lumbar muscle spasm has settled. Intervention therapy in the form of a right sided L4/5 transforaminal injection with local anaesthetic and steroid combined with a right-sided sacroiliac injection was recommended. A diagnostic medial branch block at L4 to S1 bilaterally to ascertain if the facet joint arthralgia played a significant role in the applicant’s pain generation was also foreshadowed. Arrangements were made to proceed with this treatment.[7] ARD p 186.
The applicant submits that the condition in his lumbar spine caused a significant interference on his physical wellbeing, and on his ability to stand, sit and walk.
Respondent
The respondent notes that there is no issue as to the applicant’s back injury or incapacity as a result thereof.
The respondent notes that Dr Harrington does not dispute that the applicant requires knee surgery, but submits that in accordance with what was said by Kirby P in Kooragang Cement Pty Ltd v Bates,[8] and referred to by Deputy President Bill Roche in Kumar v Royal Comfort Bedding Pty Ltd,[9] there was not an unbroken chain of undisputed evidence in this case to link the lumbar spinal injury with the condition in the applicant’s left knee.
[8] (1994) 35 NSWLR 452 (Kooragang).
[9] [2012] NSWWCCPD 8 (Kumar).
The respondent submits that the opinion of Dr Harbury contained in his report dated
3 November 2022 does not provide strong support for the applicant’s case. The doctor says that the aetiology of the left knee condition is an area that is subject to interpretation but it is his suggestion that it is likely that the knee condition has become worsened by his abnormal gait secondary to his lumbar pathology. The terms used by the doctor provide significant caveats to acceptance. Dr Harbury also concedes that there is no objective investigation or definitive test which proves one way or the other the causal link sought to be established by the applicant.The respondent submits that there is no reference in the clinical notes in evidence to interference with gait.
The respondent submits that there is no mention in the applicant’s statement dated
15 February 2023 of interference with his gait, referring to the evidence at [7] of that statement in particular. The respondent submits that the evidence of the applicant experiencing a series of falls are symptoms of an unclear pathology in the knee, whereas the pathology in the left knee appears to be arthritis. The evidence does not link those symptoms with an altered gait.No doctor apart from Dr Harbury, refers to interference with gait as a consequence of the back injury.
The respondent relies on what Dr Harrington records in his report dated 12 May 2022 as to the current status of the applicant, his findings on examination, and the doctor’s answers to the specific questions put to him. The respondent submits that Dr Harrington has given a careful and considered opinion on the issue of causation of the left knee condition.
In summary, the respondent submits that having regard to the lay evidence and expert medical evidence, and notwithstanding that workers compensation legislation is beneficial legislation, no causal chain has been established between the injury to the applicant’s lumbar spine and the condition in the left knee, which now requires surgery.
Applicant in response
The applicant concedes that while there is no particular reference to altered gait in the clinical records, the assumption on which his submissions proceeded was that there was an altered gait in existence.
The applicant submits that the statement by Dr Harrington that “He was apparently told that his left knee was related to an altered gait to compensate for his back pain, which I don’t agree with” could be read as, not that there was no altered gait, but an alternative reading of the statement is whether or not his left knee was related to an altered gait to compensate for his back pain. At no point in his report does Dr Harrington actually say that that applicant does not have an altered gait. Dr Harrington accepts that there is an issue with the applicant’s left knee.
Dr Harrington provides a description of the unusual presentation of the applicant when he notes a pre-existing condition given the varus alignment of the left knee.
The applicant submits that the fact that he does have an altered gait is not in issue, but whether that gait is a consequence of his back injury. Dr Harrington does not say that
Mr Wyborn’s gait is not altered. What Dr Harrington does say at [9] of his report is that he has not identified a pathological process to connect Mr Wyborn’s lower back injury and his left knee condition. The applicant submits that that is not the task in determining whether or not there is a consequential condition. There doesn't need to be a pathological process, but there needs to be a commonsense evaluation of the causal chain. The applicant accepts that there is a pathological condition in the left knee.
Respondent’s further submissions
The respondent notes that there may (emphasis added) have been an alteration of gait due to the arthritic condition in the knee, but that is not what the applicant must prove.
In respect of the issue of whether or not the applicant has an altered gait as a consequence of the back injury, the respondent submits that it is important to look at the chronology in a commonsense way. To succeed, the respondent submits that the applicant must show that he suffered a back injury, as a result of which he altered his gait which gave rise to a condition in his left knee. It cannot be looked at as a back injury somehow causing a condition in the knee which then caused the applicant to alter his gait.
FINDINGS AND REASONS
Law
In Kumar, Deputy President Roche at [47] cited what Kirby P in the Court of Appeal said in Kooragang at 463-464, after referring to earlier English authorities:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although it is not disputed that the applicant did have pre-existing pathology in his left knee at the time he injured his back on August 2018, the applicant does not have to demonstrate that the condition he alleges occurred in his left knee consequent upon the back injury caused pathology in that knee. Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[10] said at [169]:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.”
[10] [2016] NSWWCCPD 23
What the applicant must show is that he experienced symptoms in his left knee because he altered his gait as a result of injury to his lumbar spine. I accept the applicant’s submission critical of what Dr Harrington says at [9] of his report dated 12 May 2022, referred to at [31] above. That is, that the doctor has not identified a pathological process to connect
Mr Wyborn’s lower back injury and his left knee condition. I also accept the respondent’s submission in [33] above that the applicant must show that he suffered a back injury, as a result of which he altered his gait which gave rise to a condition in his left knee. The experiencing of symptoms in the left knee as a result of the altered gait will be sufficient.
Evidence
The whole of the evidence must be considered. Firstly, did the applicant suffer an alteration of his gait?
The applicant underwent extensive pain relief treatment by Dr Volschenk, pain specialist, including transforaminal injections, medial branch blocks and radiofrequency ablation. In
July 2021 a spinal cord stimulator was inserted which the applicant says gave him no significant relief. He also says that he began experiencing falls where his knees gave away.The clinical records of Dr Volschenk are in evidence.[11] In the report dated 14 March 2019
Dr Volschenk says:“Functionally, his lower back pain is creating a significant sleeping disturbance, he finds very difficult to sit and stand for long periods of time, unable to garden or compete in golf as before. His support structure is through his wife and his son who is 16 years of age. His sitting tolerance has decreased to less than 30 minutes. He is unable to walk more than 500 metres without stopping and has to move position while he stands for more than 30 minutes. He has difficulty climbing out of the motor vehicle especially to his right.”
[11] ARD p 155.
Dr Volschenk reviewed the applicant regularly in 2019, 2020 and 2021 at the Hunter Pain Clinic. Initially it appears that the applicant experienced benefit from the spinal cord stimulator inserted on 12 July 2021,[12] but by 1 February 2022 felt he was not having significant relief from this device.[13]
[12] ARD p 165.
[13] ARD p 162.
The applicant saw Dr Harbury initially on 9 March 2022 as noted above in [5]-[6] above. In the report to Dr Aus of that date, Dr Harbury recorded that the applicant’s back had been extensively reviewed and:
“…he has had a spinal cord stimulator as well as radiofrequency neurotomy in the lumbar region which had been partially effective but his left knee pain remains. It is anteromedial in nature, present with all walking with his speed and distance limited causing him to limp.”
Later in the report Dr Harbury said:
“I have had a talk to him today about his options for treatment of his degenerate knee. The first one is to continue as he is with simple oral medications, activity modification and physiotherapy. It is very unlikely that these will significantly improve him to a satisfactory state.
The other option is to consider replacement of the knee…
The aim of surgery is to restore alignment in both the sagittal and coronal planes, to give him pain relief (hopefully but not assuredly complete), to give smooth predictable range of movement and improved stability, resulting in better function overall.”
Dr Harbury’s opinion on the requirement for surgery are set out in the quote from the report to EML in [6] above. My reading of the reports of Dr Harbury is that the applicant had an altered gait at the time he was first assessed by the doctor. Dr Harbury was well aware that Mr Wyborn had a degenerate knee. He does not however comment on his previous occupations as does Dr Harrington.
The relevant parts of Dr Harbury’s report dated 3 November 2022, and the respondent’s submissions thereon, are set out at [17] and [22] above. In noting that there is no objective investigation or definitive test which proves one way or another that the injury to the lumbar spine caused the abnormal gait in the applicant, Dr Harbury says that his previous experience shows there often to be a link between one area of the body being weak and dysfunctional and compensatory changes such as has been the case with Mr Wyborn.
In Dr Harrington’s report dated 12 May 2022 he records under “HISTORY” that the applicant reported gradual onset of pain on the medial side of his left knee about 10 months after his back injury. That would be in about mid-2019, by which time the applicant was receiving treatment from Dr Volschenk. On 14 March 2019 Dr Volschenk recorded the following history:
“Functionally, his lower back pain is creating a significant sleeping disturbance, he finds very difficult to sit and stand for long periods of time, unable to garden or compete in golf as before. His support structure is through his wife and his son who is 16 years of age. His sitting tolerance has decreased to less than 30 minutes. He is unable to walk more than 500 metres without stopping and has to move position while he stands for more than 30 minutes. He has difficulty climbing out of the motor vehicle especially to his right.”
The applicant’s condition improved to a degree with the treatment administered by
Dr Volschenk as appears from his reports. However, in the long run, even with a spinal cord stimulator, there was no significant improvement. It is quite clear that in March 2019
Mr Wyborn was significantly incapacitated.Dr Harrington makes no specific finding as to whether the applicant did have an altered gait. He does express his belief at [6] of his report that Mr Wyborn’s arthritic left knee is not secondary to his original lower back injury, but that the pathology in the knee is due to varus arthritis, not an altered gait. He says:
“I’m not sure how someone can make the connection between an arthritic knee from an altered gait. When someone has back pain, they tend to move less which protects the knees.”
That last comment of Dr Harrington contrasts with Dr Harbury’s experience which to shows there often to be a link between one area of the body being weak and dysfunctional and compensatory changes such as has been the case with the applicant. It is a concept not uncommonly arising in workers compensation proceedings.
Altered gait
I find that, having regard to the evidence of Dr Volschenk, Dr Harbury and Dr Harrington that I have summarised, the applicant was suffering from an altered gait in the period following his significant back injury. On the history recorded by Dr Harrington, there was a gradual onset of pain on the medial side of the left knee about 10 months after the back injury. It is reasonable to infer that the altered gait had commenced at least by then.
Cause of left knee symptoms
What must now be considered is, did the altered gait cause symptoms in the left knee? The answer given by Dr Harrington at [1] on the fourth page of his report that he does not believe employment is a substantial contributing factor to the applicant’s arthritic left knee is not helpful. To be fair to the doctor, that was in reply to a question posed to him in those terms.[14] That is not the test required for a finding of a condition in one part of the body as a consequence of injury in another part of the body.
[14] Reply p 5.
There is an undisputed pre-existing condition in the left knee given the varus alignment of the knee with narrowing of the medial joint seen on X-ray, commented upon by Dr Harrington. He says that there could be an acceleration due to the applicant’s body habitat given that he is an ex-jockey and ex-soccer player, both of which historically tends to see men develop bandy-leg alignment, that is, varus deformity. However, that is speculation only, and not relevant to the issue to be determined.
However the fact that Mr Wyborn does have this pre-existing degenerative condition in his left knee could be consistent with a change of gait. Was that change as a result of the pre-existing condition, or the significant pain Mr Wyborn was experiencing in his lumbar spine?
In my view and adopting a commonsense appraisal of the evidence in this matter, there is an unbroken line of causation between:
(a) the serious back injury suffered by the applicant in August 2018 causing significant ongoing pain notwithstanding extensive conservative treatment;
(b) the restrictions recorded by Dr Volschenk in March 2019, and
(c) the restrictions recorded by Dr Harrington in May 2022 (“can walk on flat ground for 30 minutes at his own pace”),
and the gait adopted by the applicant as a result of his back pain. There is no issue as to the credibility of the applicant, with Dr Harrington describing him as a genuine man with significant knee pain that requires definitive surgical intervention. The applicant told
Dr Harrington that he first experienced left knee pain about 10 months after his back injury, and this is consistent with a gradual onset of symptoms due to increasing back pain.Dr Harrington expresses the incorrect reason in respect of the applicant’s employment being a substantial contributing factor to his arthritic left knee, and in not identifying a pathological process to connect Mr Wyborn’s lower back injury and his left knee condition. Those are not the criteria by which a consequential condition is to be determined.
The opinion of Dr Harbury as to change of gait as a result of the back injury is, notwithstanding the qualifications he places on that opinion which are highlighted by the respondent, consistent with the timeline for the onset of symptoms in the left knee.
As submitted by the parties, in the final analysis, the only opinions put forward by medical practitioners are those of the two qualified orthopaedic specialists, Dr Harbury and
Dr Harrington.In my view, having regard to the whole of the evidence that I have discussed, the opinion of Dr Harbury should be accepted in preference to that of Dr Harrington.
There will be a finding that the applicant suffered a condition in his left knee consequent upon injury to the lumbar spine on 8 August 2018.
In this circumstance, there is no issue that the proposed surgery is reasonably necessary as a result of injury to the lumbar spine on 8 August 2018, and the respondent will be ordered to pay for the costs of and incidental to the left knee replacement surgery recommended by
Dr Harbury.
SUMMARY
The applicant sustained a condition in his left knee consequent upon the injury to the lumbar spine on 8 August 2018.
The left knee replacement surgery recommended by Dr Harbury is reasonably necessary as a result of injury to the lumbar spine on 8 August 2018.
Pursuant to s 60 of the 1987 Act the respondent is to pay for the costs of and incidental to the left knee replacement surgery recommended by Dr Harbury in his report dated 9 March 2022.
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