Younan v Feris Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Younan v Feris Group Pty Ltd [2023] NSWPIC 126
APPLICANT:	Milad Younan
RESPONDENT:	Feris Group Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	29 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for future surgery by way of total knee replacement; medical necessity of surgery not in issue; the applicant suffered an accepted lumbar spine injury in 2016; alleges that injury caused weakness, numbness and instability in his right leg which led to him falling from an elevated garden bed in April 2020, causing a consequential condition by way of right leg fracture which gives rise to the accepted need for a total knee replacement; respondent disputed the presence of the alleged consequential condition, alleging the fall causing the right leg fracture was not as a result of the accepted lumbar injury; Held – on a common-sense evaluation of the causal chain, the right leg fracture occurred as a result of the lumbar spine injury; Kooragang Cement Pty Ltd v Bates applied; applicant need only demonstrate the accepted injury was a material cause of the need for the proposed surgery, even if other factors were also present which may have contributed to that need; Taxis Combined Services (Victoria) Pty Ltd v Schokman followed; caution must be had in relying on histories recorded by treating medical practitioners; Mason v Demasi & Anor followed; the complaints can in no way be said to be recent inventions; on a common-sense evaluation of the causal chain, the preponderance of the evidence establishes the accepted injury was a material cause of the requirement for the surgery; no dispute the surgery is medically necessary; respondent is ordered to pay the costs of and incidental to the proposed right total knee replacement.
determinations made:	1. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 8 January 2016. 2. As a result of the injury referred to in [1] above, the applicant suffered a consequential condition to his right lower extremity (knee). 3. The total knee reconstruction proposed by Dr Balalla is reasonably necessary as a result of the consequential condition referred to in [2] above. 4. The respondent is to pay the costs of and incidental to the proposed right total knee replacement surgery.

STATEMENT OF REASONS

BACKGROUND

On 8 January 2016, Milad Younan (the applicant) suffered an injury to his lumbar spine in the course of his employment with Feris Group Pty Ltd (the respondent) as a form worker when a four metre x three metre plank of timber fell and struck him across his back and hip from a height of between two to three metres.
The injury to the applicant’s lumbar spine is not in issue. The applicant’s ongoing symptoms in relation to his back and right leg are well documented in the treating material upon which the parties relied.
The applicant also alleges that as a result of his injury, on the evening of 8 April 2020 while at home having a family meal, his right leg gave way, causing him to fall backwards onto the ground. An ambulance was summoned, and the applicant was taken to Westmead Hospital where he remained until 20 April 2020, at which time he underwent an open reduction and internal fixation of his right knee at the hands of Dr Balalla. After the operation, the applicant contracted an infection which caused him to remain in hospital for approximately six weeks.
The applicant alleges that he fell and fractured his right leg due to the ongoing right leg numbness and weakness caused by the injury to his lumbar spine on 8 January 2016.
By s 78 notice dated 24 June 2020, the respondent disputed liability for the applicant’s right knee condition, saying there was no causal link between the accepted lumbar spine injury and the alleged consequential condition. There is no issue the surgery by way of right total knee replacement recommended by Dr Balalla is a medical necessity. The only question is whether the requirement for that surgery has been brought about by the alleged consequential condition.

ISSUES FOR DETERMINATION

The only issue for determination is whether the requirement for the right total knee replacement surgery has been brought about by the accepted injury to the applicant’s lumbar spine.

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 hearing on 27 February 2023. At the hearing, the applicant was represented by Mr Epstein of counsel instructed by Mr Caristo. The respondent was represented by Mr Joseph of counsel instructed by Ms Pearson.
At the outset of the hearing, Mr Joseph made an application to cross-examine the applicant. That application had not been foreshadowed at the preliminary conference.
Mr Epstein for the applicant opposed the application to cross-examine his client, noting it related to various versions of events contained in certain documentation as to the circumstances of the fall which led to the right knee fracture.
The parties’ attention was drawn to the decision of Acting Deputy President Parker in Finney Pty Ltd t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13 (Finney). In that matter, the Acting Deputy President noted it was inappropriate to make findings which affect the direct rights of witnesses, for example that they have lied or have tailored their evidence, without directly putting those propositions to them in cross-examination. A failure to do so, the Acting Deputy President held, constitutes a breach of the procedural fairness requirements of the Commission.
Mr Epstein nevertheless maintained his opposition to the application and noted Finney was a case where there were two opposing versions of events provided by lay witnesses, some of whom were not given the opportunity to explain their versions of events before adverse findings were made against them. He noted this matter was materially different in that the applicant is the only witness who has provided a statement, and the respondent was proposing to cross-examine him on versions of events contained in treating medical material. Moreover, Mr Epstein noted the applicant has had the opportunity to deal with the varying histories and has done so in his further statement evidence.
Accordingly, Mr Epstein submitted there was nothing to be achieved by cross-examination, as the applicant has responded to the allegations relied on by the respondent and it is up to the Commission to decide which history of the events at issue to believe.
After hearing submissions from both counsel, I declined to grant the application to cross-examine the applicant.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his right knee

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. Authorities such as Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 make it clear that the applicant does not need to satisfy the requirements of a S4 injury in order to succeed on a claim for consequential condition.
In Kumar, the Deputy President noted the question of whether a consequential condition exists is one of causation, and that the relevant test for determining questions of causation is that set out in the oft-quoted passage of Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
The decision in Kooragang makes it clear that what is required in determining questions of causation in the worker’s compensation context is a commonsense evaluation of the causal chain to determine whether the consequential condition results from the work injury and is to be determined on the basis of the evidence, including where applicable, expert opinion and lay evidence.
Unlike many cases involving an alleged consequential condition, the nature of the applicant’s right knee condition is not disputed. It is plainly a serious fracture which requires surgical intervention by way of a total knee replacement. It is therefore not necessary to examine the pathology brought about to the right knee. Rather, the question for determination is whether the lumbar injury led to the right knee condition.
As Roche DP noted in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 (Schokman) at [54]:
“[The relevant inquiry is whether], as a matter of common sense, the injury was a material cause of the need for the proposed treatment ... even if other factors were also present that may have also contributed to that need.”
In this matter, there is no issue the applicant suffered a serious injury to his lumbar spine on 8 January 2016. An X-ray of his lumbar spine on that date revealed multilevel osteophytosis in keeping with degenerative change. The injury to the applicant’s lumbar spine plainly caused an aggravation to that pathology, as was demonstrated on a CT scan performed three days later which showed broad based disc bulges at the lower three lumbar vertebral levels resulting in moderate narrowing of the neural exit foramina bilaterally at L5-S1, more so on the right than the left with an element of impingement of the exiting L5 nerve in the sub foraminal recess. There was also an undisplaced fracture of the transverse process at L4 on the right side.
Mr Epstein noted a number of doctors have diagnosed the applicant as suffering from radiculopathy in his right leg since the accident in 2016. In a report dated 7 December 2016, Dr Suttor, treating spinal surgeon, noted the applicant suffered an undisplaced L4 transverse process fracture, “but his main complaint has been lower back pain and right leg pain”. At that time, Dr Suttor recommended the involvement of a multidisciplinary pain team.
On 6 September 2016, the applicant underwent a bone scan of his lumbar spine which demonstrated bony injury involving the superior and inferior end plates of L5 vertebra.
Dr Guirgis, treating orthopaedic surgeon, provided a report to the applicant’s general practitioner (GP) Dr Latif on 7 November 2017. In that report, Dr Guirgis noted the applicant displayed symptoms of right sided L5 radiculopathy.
Dr Guirgis ordered neurological testing of the applicant, which was carried out by Dr Cordato on 18 December 2017. The nerve studies revealed “electrophysiological evidence of a moderate right L5 radiculopathy”.
Those findings were consistent with those of treating neurosurgeon, Dr Davies, whose diagnosis in a report to Dr Guirgis dated 31 May 2018 was right L5 radiculopathy. In explaining the presence of the radiculopathy given the nature of the fracture to the applicant’s lumbar spine, Dr Davies said:
“The L4 transverse process fracture is ‘trivial’. It is a stable fracture and these fractures rarely cause long-term back pain. The significance of Milad’s transverse process fracture, however, is that it is a surrogate marker of the force of the impact of the plank of wood and subsequent fall to the ground. In other words, there is no doubt Mr Younan has had significant trauma to his lumbar spine, fortunately not causing any significant fracture or life-threatening injury. It has however rendered some pre-existing lumbar spinal canal stenosis symptomatic. This is probably on the basis of changing the morphology of the L4/5 disc in a small way which has incrementally narrowed his spinal canal and set off an L5 radiculopathy.
Milad therefore now has some back pain due to a combination of the trauma and facet joint and discovertebral arthritis in addition to a disabling right L5 radiculopathy associated with spinal canal stenosis. The management of his back pain will be centred on a regular exercise programme including swimming or walking in the water three or four days a week in addition to core strengthening exercises. These measures are likely to manage the problem more effectively but probably not cure it.
Milad’s right leg pain is secondary to L5 nerve root compression at the L4/5 lateral recess level. He has failed conservative treatments for this for more than two years and it is unlikely that with the same treatment he is already having that there will be any improvement in the future. There is some ‘room to move’ with regards to his analgesic regime. I would not advocate narcotics but would suggest he meet with Dr Latif to explore a trial of Lyrica or Neurontin. Beyond this, further involvement of the pain management unit at Sydney Adventist Hospital may be effective.” (Doctor’s emphasis)
In relation to the incident on 8 April 2020, the applicant gave a background of ongoing difficulties in relation to his right leg, including difficulty placing weight on it. He stated he was not able to walk properly and tended to walk with a limp when walking. He noted that on 5 February 2020 he had a right hip ultrasound, following which Dr Guirgis diagnosed trochanteric bursitis in his right hip and a lower back injury as a result of the incident on 8 January 2016.
The applicant stated he continued to walk with a stiffened, painful right leg which he had to drag because of his painful lower back, right hip and pelvis pain and numbness. He said he had difficulty lifting his right leg and felt it was unstable and weak. In relation to 8 April 2020, the applicant stated:
“26. On the evening of 8 April 2020, I was at home in the back garden having a family meal. I was walking to the back garden with my wife. I was not using my walking stick as I was told by rehabilitation to limit my reliance on using the walking stick especially whilst I stayed home. I was getting a fruit from a tree. While walking onto the garden bed which is on the boundary of my residence and lifting my leg onto the raised garden bed and putting weight on my right leg, my right knee gave way. I fell backwards onto the ground. I felt severe pain around my right lower knee. I was unable to move. My wife called the ambulance and I was taken to Westmead Hospital. I recall that I was in such pain that I was given a green whistle to manage my pain. I was put on a board stretcher. I underwent x-rays and a fracture of the right tibia was diagnosed. On 20 April 2020 I underwent surgery, open reduction internal fixture. A plate and screws were inserted. I saw Dr Bu Balalla - orthopaedic specialist at Westmead Public Hospital as it was an emergency. To make things worse, I contracted an infection at hospital. I was in the hospital for about six weeks.”
The point of contention in this matter is that the applicant’s version of events in his statement differs from those contained in various other material. The applicant referred to those other histories in his statement at paragraph [26] as follows:
“I am aware of the history written at the hospital of falling off a stool. That history is incorrect. I am unaware of who gave that history. I do have a problem with the neighbour but there wasn’t any argument on 8 April 2020. I was more worried about getting better and undergoing the necessary treatment. It was during Covid and I didn’t believe in getting the Covid vaccinations.”
The applicant is referring to an entry contained in the ambulance records on 8 April 2020 which provided a case description of
“52 YOM post fall from approximately 1m. Patient was standing on bench seating garden bed looking over fence when the seat wobbled causing him to fall backwards onto concrete. Patient COR leg from buttock to foot.”
As Mr Epstein pointed out, it is not clear who provided that history. It does not necessarily follow the applicant provided the history to the ambulance, particularly so given the uncontested statement evidence of the applicant is his wife called the ambulance because he was lying on the ground in pain.
In any event, what is uncontroversial is the applicant suffered a comminuted fracture of the lateral tibial plateau with a central fragment which appeared to be depressed. He remained in hospital for many weeks after the incident. A triage entry from 8 April 2020 also recorded a fall from one metre “while on bench arguing with neighbour over the fence, falling onto concrete”. There is no mention in that entry of the bench being wobbly.
A further entry from the emergency department provides a history of “lost balance on stool he was standing and fell to ground (one metre height)”.
A later entry from the orthopaedics department at Westmead Hospital found at Reply p 335 records the mechanism of injury as a fall from one metre height.
There is well-established authority that caution must be taken in relying on histories recorded by treating medical practitioners: see Mason v Demasi & Anor [2009] NSWCA 227. In my view, that is especially the case in relation to ambulance and public hospital records where an initial history, regardless of who provides it, is often repeated throughout a set of clinical notes. That caution is particularly warranted where it is unclear on the face of the hospital records who provided the relevant history to the ambulance and to the hospital at various times.
Fortunately, there is some direct evidence of the history which the applicant was providing shortly after his knee injury. That evidence arose from a telephone conversation between a representative of the respondent’s insurance company and the applicant which took place between 8 April 2020 and the applicant undergoing surgery whilst still in Westmead Hospital. That much is clear from the transcript, where the applicant notes the injury happened on “Wednesday night” and the applicant telling the respondent’s representative he was still waiting for his surgery.
As an aside, the transcript of the interview between the applicant and the respondent insurer’s representative does not indicate the insurer representative told the applicant the call was being recorded. That, in my view, is thoroughly inappropriate. Nevertheless, no objection was taken by the applicant to the transcript of the telephone call being placed into evidence. The relevant passages of the conversation are as follows, with the questions being asked by the respondent’s representative and the answers given by the applicant:
“Q6 Great. Just calling to check in and see how you got on, and what’s happening. Did you end up having surgery?
A6 Yeah. I’m still waiting for surgery.
Q7 You’re still waiting for surgery? Okay.
A7 Yeah.
Q8 You’re still in hospital. Jeez.
A8 Yeah, yeah...
Q15 Yeah. And, are they planning on sending you home, or are you waiting to have surgery before you go home?
A15 No. Got to have surgery. I can’t- they tried to get me on crutches and that, to walk, and- no. Couldn’t do it.
Q16 Okay. No worries. Can I just get a little bit more information as well about what happened, exactly? So like, when- when did it happen?
A16 Wednesday night.
Q17 Wednesday night.
A17 Yes.
Q18 And what were you doing?
A18 Just sitting down, having a bit of dinner with children. And, just got up to walk towards the fence, which was because the neighbour was complaining about something. It was the fire. We’ve got the fire going. ‘Turn that bastard off’ and he’s yelling and raving at me.
Q19 Okay.
A19 I, sort of, just walked towards the fence. Not that good. But, I walked towards the fence, and I guess to a garden bed, it’s, like, a 200. And, I sort of, lifted my leg up to step up, but I didn’t make it.
Q20 Okay.
A20 Came back down in a- I don’t know, funny way. And, just snapped.
Q21 Wow.
A21 Yeah.
Q31 So, are you putting this injury through- are you saying that this is related to your workplace injury? Is that what-
A31 Well, I mean, I- I mean- you know, I mean- is there a paper there?
(unidentified female voice) note on the back of that.
Yeah. That’s it. Yeah. Back. Thank you. Well, Rosie, I mean, I don’t know. I mean, anything could have- could have happened without me having the injury before, but cause I always kept on complaining about my leg is always numb, and you know---
Q32 Which leg is it? Sorry, your right leg, or---
A32 The- the right leg. Yeah.
Q34 Yeah. Okay. Just because we are in the middle of, obviously, determining your impairment for the section 39 stuff, when you went to have that appointment and everything. So, this- we just need to know if you’re going to be claiming this as part of your- your injury or not. And, we- yeah. We just need to, you know, do a bit of an assessment and see what’s happening. Cause, it- it makes a change, things so---
A34 Yeah. Yeah. Well, like I said, I mean I’ve never been in the position before. And, now this has happened, and from- from what I’ve been noticing with my leg, having no feeling in it, and going numb, and things like that, I’m- I’m thinking it could have been from that.”

The contemporaneous evidence from the applicant that his leg had been numb, weak and was causing him difficulties is telling. It is consistent with the findings of radiculopathy by treating doctors over the years since the original incident in January 2016 right up until 2020. It is also consistent with complaints made by the applicant in that timeframe.
Mr Epstein submitted, and I accept, that the transcript of the evidence, however questionably obtained, is of great significance. The applicant had been in hospital for many days. He was no longer in shock. He had been treated and was specifically being asked by the insurer’s representative to think about whether the incident was work-related, and he said he thought it was. His opinion is not, of course, determinative of the causative issue in the proceedings, but it is consistent with his statement in that the applicant told the insurer representative his right leg had given way immediately before the fall at issue.
A further record from Westmead Hospital from 4 May 2020 noted the applicant had been admitted on 8 April with a right tibial plateau fracture following a fall “whilst walking up steps”. There is no mention of the applicant having walked up steps in any other entry, and the utility of this clinical record is to again demonstrate the care which must be taken in accepting at face value histories which are recorded by treating clinicians.
The history which the applicant has given of his leg giving way is, in my view, consistent with the findings of treating surgeon, Dr Guirgis, who wrote in reply to a letter from the applicant’s GP, Dr Latif, in February 2020 (before the fall causing the knee fracture) that the applicant was suffering symptoms of L5 radiculopathy. On 21 May 2020, Dr Guirgis provided a post-knee injury history as follows:
“He presented walking with the help of two elbow crutches and gave me the history that on 8-3-2020 [plainly the incident took place on 8 April 2020]. He was going up one step and as he lifted his left leg and was going to put weight on his right leg, he felt increased numbness in the right leg - (his right leg was felt numb since the morning of that day) - when his right leg gave way on him and as a result he fell down sustaining a fracture of his upper tibia.”
That history is, in my view, broadly consistent with that provided to the insurer’s representative by the applicant directly whilst in hospital and awaiting surgery.
For the respondent, Dr Chase, independent medical examiner (IME), provided a number of reports. Relevantly, Dr Chase had seen the applicant on several occasions between the original injury in January 2016 and the fall at issue. On 16 March 2020, approximately three weeks before the fall which caused the knee fracture, Dr Chase examined the applicant and provided a report to the respondent. Dr Chase provided the following relevant history:
“He is now under the care of Dr Medhat Guirgis and has now developed symptoms of right hip pain and Dr Guirgis has diagnosed a greater trochanteric pain syndrome ...
Physical examination is detailed in Appendix A but in summary he had restricted range of motion, generalised tenderness and negative nerve tension signs. I could not obtain the patella jerks bilaterally but the ankle jerks were present. There was no lower limb muscle wasting. He had reduced sensation in his entire right leg in a non-physiological distribution. Power was normal ...
On the basis of history, examination and imaging, there does appear to be little doubt that he sustained an undisplaced fracture of the right transverse process at L4. That healed without any residual deformity. He is now describing what is most accurately, ‘low back pain of unknown or uncertain aetiology’. It would be equally valid to describe this as ‘mechanical low back pain’ or, ‘non-specific low back pain’. He is describing non-verifiable radicular symptoms into the right leg but I can find no evidence whatsoever of a frank radiculopathy as defined.”
With respect to Dr Chase, it appears he did not have the benefit of the nerve conduction studies which revealed the presence of radicular signs in the applicant’s right leg. In any event, the complaints by the applicant of weakness, numbness, and pain in his right leg are consistent with those recorded by treating doctors between 2016 and 2020. They are also consistent with the complaints made by the applicant in his statement as to his condition between 2016 and 2020. I have no difficulty in finding on balance that the applicant was suffering from a pattern of right leg weakness, numbness and loss of strength following the original injury in 2016.
Dr Chase then provides further reports dated 3 June 2020, 21 August 2020 and 1 July 2021. In the report dated 21 August 2020, Dr Chase adopts what can only be described as an advocate’s enthusiasm for the respondent’s position. When asked about the varying histories provided to different doctors, Dr Chase stated:
“The Westmead Hospital notes do make reference to him suffering from chronic low back pain though there is no mention at any point in the documents that he suffered from a right lower limb radiculopathy or any neurological abnormalities in the right lower limb. Indeed, other than listing low back pain in the problem list, there is minimal reference to low back pain except for one entry I noted that states his back pain was worse because of the hospital beds.”
Dr Chase was aware at the time he wrote the above paragraph, independent of any hospital records post April 2020, that the applicant had been complaining for years of weakness, loss of strength, numbness and pain in his right leg after his low back injury. The fact the applicant was not recorded as referring to those symptoms whilst in hospital after April 2020 is, in my view, clearly understandable given he was admitted for a comminuted fracture of his tibia which required open reduction and internal fixation.
Dr Chase then indicated the applicant fractured his right tibia as a result of falling off an unstable stool or bench. In doing so, he has plainly adopted the history recorded in the clinical records. As I have indicated, caution should be taken in relying upon such history. Curiously, Dr Chase does not appear to have been provided with a copy of the transcript between the applicant and the respondent’s representative from April 2020 in which the applicant clearly stated his leg was weak, numb, lacking in strength and gave way on him immediately prior to the fall.
Dr Chase’s reliance upon the clinical records to dismiss any complaints of right leg weakness before the incident in April 2020 is curious given the admitted history which he set out in his last report dated 1 July 2021. In that document, he was asked whether the applicant had sustained a consequential condition to his right hip and set out the following:
“When I saw Mr Younan on 13 May 2016, he told me that he had pain in his right low back, right buttock and entire right leg. There was no tenderness over the hip. When I saw him on 13 March 2020 he agreed with the history that I obtained four years before and that he had symptoms in the entire right leg with numbness, pins and needles and pain in the entire leg. Physical examination in 2020 again demonstrated tenderness of the low back and I have highlighted in my previous report ‘there was no hip tenderness’.”
Dr Chase’s histories may well indicate there was no prior hip tenderness, however, they do clearly demonstrate the applicant had consistently complained of right leg symptoms since the 2016 injury, something which Dr Chase completely ignored in his immediate post-knee injury report as a potential causative factor of the applicant’s fall. In my view, Dr Chase’s findings are selective, do not take into account the full history of the applicant’s issues since the incident in 2016, and I reject them.
For the respondent, Mr Joseph referred to a number of other entries relating to prior problems which the applicant had before the 2016 injury with his right leg, including with his knee. Whilst I do not question those submissions or the presence of those prior complaints, it is notable that Dr Latif, the applicant’s longstanding GP, provided a Question and Answer report to the respondent dated 21 May 2020. That report contained a question noting pre-existing right leg issues from November 2004 to October 2015. Quite appropriately, the respondent asked the applicant’s general practitioner about those matters, and Dr Latif replied “very old, minor injuries with no relation to or contribution to his right leg injury”.
Whilst it is the case that there were clearly some issues in the applicant’s past which caused him to see a doctor concerning his right leg, the fact is he had engaged in full-time employment with the respondent, and there is no consistent history of ongoing treatment of any problem with his right leg before the 2016 incident. Rather, I accept the applicant from time to time suffered small injuries or symptoms which resolved.
Mr Joseph submitted that other than the CT scan from 2016, the applicant’s entire case relies on the versions of events in statements or provided to doctors. I do not accept that submission in total, however, I note the applicant had consistently complained of pain, weakness, numbness and loss of strength in his right leg from the time of his lumbar injury.
Those complaints are not a recent invention. They are longstanding, and there is some objective evidence by way of the neurological studies of the applicant’s right leg which demonstrate the presence of radiculopathy consistent with the findings of Dr Davies, Dr Guirgis and Dr Suttor.

55. Dr Balalla, treating surgeon also provided an opinion on causation. He took the following history:

“Unfortunately Milad had a fall on 08 April, 2020. His right knee gave way and he sustained a serious fracture of his right knee. This was treated under my care at Westmead Public Hospital. Milad had a bone graft and internal fixation of his lateral tibial plateau fracture. Unfortunately this was complicated by a post operative infection which required washout and a PICC line .The infection eventually settled…
Milad has asked me whether I feel that the knee injury is related to his back injury. I
feel that it is almost certainly related. He describes an episode of instability that lead to the fall which caused his knee fracture. This instability was a direct consequence of his weakness from his spine injury.”

Dr Balalla is a treating specialist and, absent his opinion being based on a flawed history or otherwise containing some error, is entitled to be given considerable weight.
The applicant also made complaints to Dr Gray, treating spinal surgeon of reduced sensation and numbness in his right leg. Dr Gray opined the applicant “presents with severe low back pain and nonspecific right leg neurogenic symptoms on a background of a low back injury at work in January 2016.”
Dr Ramchandaran, pain specialist provided a number of reports. On 26 May 2017, doctor stated “He is coming to the end of his pain management programme and there is still significant right lower limb weakness from secondary deconditioning.”
In my view, the evidence clearly discloses a consistent pattern of complaint by the applicant from the time of his lumbar injury up to the fall which caused the right leg fracture.
On balance, I accept the applicant’s version of events in relation to the incident as set out in his statement. I do not accept the applicant’s fall was caused by falling from a wobbly bench or stool. It is unclear where that history came from, and his version of events to the insurer representative, coming relatively contemporaneously as it did from his hospital bed, supports the version contained in his statement. Whether the applicant was engaged in a verbal confrontation with his neighbour or was simply picking a piece of fruit at the time of his fall is, with respect, irrelevant. In either instance, the applicant’s evidence is that he stepped up onto an elevated garden bed with his right leg, at which time it gave way, causing him to fall and suffer the fractured knee at issue.
On a commonsense evaluation of the causal chain, given the applicant’s post-2016 consistent complaints of problems with his right leg after the lumbar spine injury, and his conversation from his hospital bed with the insurer representative which broadly corroborates his statement, I am satisfied that the fractured tibia was caused as a result of the lumbar spine injury and is a consequential condition of it.
As noted, there is no issue the applicant requires the surgery contemplated by Dr Balalla as a result of the fall which caused the fractured tibia. Having made the above findings with regard to causation of that fall, it follows the surgery is reasonably necessary as a result of the original lumbar spine injury and the respondent will accordingly be ordered to pay the costs of an incidental to the proposed right total knee replacement.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 126

29 March 2023