Zajec v State of New South Wales (South Western Sydney Local Area Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zajec v State of New South Wales (South Western Sydney Local Area Health District) [2022] NSWPIC 431
APPLICANT:	Christine Zajec
RESPONDENT:	State of New South Wales (South Western Sydney Local Area Health Districts)
MEMBER:	Cameron Burge
DATE OF DECISION:	2 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; permanent impairment compensation and medical expenses in respect of alleged consequential condition in right knee said to have arisen from accepted left knee injury; liability for consequential condition denied; Held — the applicant suffered a consequential condition in her right knee as a result of the left knee injury; the bilateral total knee replacement surgeries were reasonably necessary as a result of the applicant’s injury and the consequential condition respectively; the respondent is to pay the costs of and incidental to the bilateral knee replacement surgeries; the respondent is to pay the applicant weekly compensation in the amounts claimed as amended at the hearing; the claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the whole person impairment arising from the injury and consequential condition.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her left lower extremity (knee) in the course of her employment with the respondent on 29 December 2017. 2. The leave is granted to the applicant amend the Application to resolve the dispute to plead scarring (TEMSKI) as an injury. 3. Leave is granted without objection to the applicant to amend the claim for weekly compensation to claim weekly benefits for following periods: a. pursuant to s 37, from 16 July 2019 to 13 November 2019, and b. from 19 May 2020 to 1 October 2020. 4. As a result of the injury referred to in (1) above, the applicant suffered a consequential condition to her right lower extremity (knee). 5. At the date of injury, the applicant's pre-injury average weekly earnings were $1,816.68 per week. 6. The respondent is to pay the applicant weekly compensation as follows: a. for the period 16 July 2019 to 30 November 2018 at the rate of $1,453.34 per week, and b. from 19 May 2020 to 1 October 2020 at the rate of $1,453.34 per week. 7. As a result of her injury and consequential condition, the applicant has required bilateral total knee replacements. 8. The bilateral total knee replacements were reasonably necessary as a result of the injury and consequential condition. 9. The respondent is to pay the costs of an incidental to the bilateral total knee replacements. 10. The claim for permanent impairment is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: a. Date of injury 29 December 2017. b. Body system is referred left lower extremity (knee), right lower extremity (knee), scarring (TEMSKI). c. Method of assessment, whole person impairment. 11. The respondent is to pay the costs of and incidental to the bilateral total knee replacements. 12. The following documents are to be included in the referral to the Medical Assessor to assist with their determination: a. Application to Resolve a Dispute and attachments; b. Reply and attachments, and c. respondent's Application to Admit Late Documents dated 13 July 2022. 13. The report of Dr Ghabrial dated 1 May 2019 at page 75 of the Application to Resolve a Dispute is to be considered by the Medical Assessor only as to the history contained within it. The balance of the report, from the heading "Opinion" at the foot of page 76 and following is to be ignored by the Medical Assessor in making their assessment.

STATEMENT OF REASONS

BACKGROUND

On 29 December 2017 Christine Zajec (the applicant) suffered an admitted injury to her left knee in the course of her employment. The applicant struck her knee and suffered trauma against a background of pre-existing osteoarthritic changes.
The injury to the left knee is admitted. The applicant also alleges that as a result of the injury, she suffered a consequential condition to her right knee. The consequential condition is disputed by the respondent, which alleges the problems with applicant's right knee are caused by degenerative changes and not any condition consequent upon the accepted left knee injury.
The applicant brings proceedings seeking payment of bilateral total knee replacements, the payment of weekly benefits and of permanent impairment compensation. There is no issue that the bilateral total knee replacements were a medical necessity and the respondent has appropriately conceded that if the applicant succeeds in establishing the presence of the consequential condition, then it will be liable for the costs of and incidental to the right total knee replacement in addition to the left total knee replacement, the costs of which it agreed at the hearing it would meet.
The applicant’s claim for weekly compensation is limited to two closed periods. The respondent accepts that the latter of those periods, from 19 May 2020 to 1 October 2020, will be the subject of an order for payment of weekly benefits for total incapacity to the applicant. The initial period claimed, from 16 July 2019 to 13 November 2019, relates to incapacity caused as a result of the right total knee replacement. The respondent accepts that if the applicant establishes the presence of the consequential condition, then it will be liable to pay weekly compensation for total incapacity during that period, at a s 37 rate of $1,453.34 per week.

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant suffered a consequential condition to her right knee as a result of the accepted left knee injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 26 July 2022. 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 for 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.
At the hearing, Ms Goodman of counsel instructed by Mr Loveridge appeared for the applicant. Ms Balendra of counsel instructed by Ms Mikaelian appeared for the respondent.
At the hearing, the applicant was granted leave to amend the Application to Resolve a Dispute (the Application) to claim injury by way of scarring (TEMSKI). Additionally, the applicant was also granted leave to amend her claim for weekly benefits without objection in terms consistent with those set out under the heading “Background” above.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    respondent's Application to Admit Late Documents (AALD) and attach documents dated 13 July 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to her right knee

In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD8 (Kumar), Deputy President Roche dealt with the issue of whether an injured worker’s shoulder condition resulted from mobilising whilst recuperating from an accepted back injury. In that matter, the Deputy President referred to the decision of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). The Deputy President accepted that what is required in order to determine whether a condition is consequent upon an accepted injury to another body part is whether a common sense evaluation of the lay and medical evidence reveals an unbroken causal chain between the accepted injury and the claimed condition.
The decision in Kumar together with those which followed such as Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) make it clear that a worker does not need to prove the existence of a consequential condition in the same manner as they are required to prove an injury as that term is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act).
At [100] and following in Brennan, Snell DP summarized a number of Presidential decisions concerning consequential condition, including Kumar, as follows:
“100. There have been a number of presidential decisions dealing with the nature of claims in respect of consequential conditions, for example, Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding. It is unnecessary for a worker alleging such a condition to establish that it is an (‘injury’) including ‘injury’ based on the ‘disease’ provisions (within the meaning of Section 4 of the 1987 Act.)
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]-[46] described what is required:
‘44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he had used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder.
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in Section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the arbitrator and Dr Hunstdale approached the matter on the basis that Mr Moon had to establish that he suffered an ‘injury’ to his left shoulder in the course of his employment with Conmah, they asked the wrong question.
46.The test of causation in the claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely has the loss ‘resulted from’ the relevant work injury.’”
Deputy President Wood set out the circumstances in which the examination and diagnosis of the pathology of a consequential condition is relevant and appropriate in the recent decision of Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 (Grant).
In that matter, the applicant alleged consequential condition to his left upper extremity caused by overuse after an accepted injury to the right arm. Senior Member Bamber (whose decision was affirmed on appeal) noted the applicant's own independent medical examiner (IME) had diagnosed a central pain syndrome affecting the body part alleged in the Application to have suffered a consequential condition, and as such, there was no basis on which to find the left arm symptoms were caused by overuse.
What is apparent from the decision in Grant is the requirement to be persuaded of the existence of the fact that the applicant suffered a consequential condition by way of overuse. Wood DP concluded Senior Member Bamber was correct and noted the decisions in Kumar and in Arquero v Shannon'sAnti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero) were able to be distinguished on the basis that an examination of the available material revealed clear evidence and medical opinion that the worker's condition in those earlier matters was a consequence of the work-related injury.
In Arquero, the worker suffered a right knee injury in 2000, and in 2014 developed symptoms in his left knee. In that matter, there was clear evidence of altered gait and post-surgery leg length discrepancy consistent with the worker's own evidence.
The effect of these authorities is that when the cause of an alleged consequential condition is clear on the evidence, there is no need to identify any relevant pathology. As Snell DP observed in Brennan, the relevant authorities do not suggest any need that the finding of consequential condition necessarily makes the identification of pathology necessary. It is sufficient to a condition which results from an employment injury find if the evidence supports it.
As Wood DP noted in Grant, “While in many matters involving the claim for compensation in respect of a condition consequent upon an injury identification of the diagnosis is not necessary or relevant, each case turns on its own facts and the available evidence.” Where there is tension between an allegation of consequential condition based, for example, on overuse and various medical opinions that symptoms were caused by something not attributed to overuse, it is appropriate to enquire as to whether a diagnosis connected with the alleged cause of the consequential condition can be made out.
The mere existence of competing evidence is not enough to necessitate the making of a diagnosis in cases surrounding consequential condition. The question to be determined is whether, having regard to all the evidence, the applicant has discharged the onus of proof that her right knee condition has arisen as a result of overuse consequent upon the accepted left knee injury. For the following reasons, I believe that onus of proof has been discharged.
There is also no issue that in or about 2015, the applicant suffered a condition in her right knee. She has been forthright in admitting this is the case and has provided that history to the medical experts in this matter. Nevertheless, there is also no issue that an examination of the treating medical records reveals no complaint of right (or indeed left) knee problems until the injury on 29 December 2017.
The applicant was employed by the respondent as a registered nurse. She worked in the emergency department and was extremely busy and also spent most of her time on her feet, working at a fast pace. Her employment history is unchallenged and demonstrates a consistent pattern of employment in the nursing profession over many years.
Concerning the prior right knee condition, the applicant's uncontested statement evidence is as follows:
“7.     In or around 2014-2015, I had an episode of a sore right knee and was referred to Dr Marc Russo, pain specialist who later found via ultrasound a burst Baker’s cyst.
8.     In about July 2015 degenerative changes in my knees were identified as pre-existing osteoarthritis and I had injections in my left and right knees.
9.     Despite my osteoarthritis, I continued to work in my roles without ongoing restriction or pain.”
That history is also plainly borne out by the treating medical evidence in this matter.
The applicant’s injury came about when she was rostered on a casual night shift at the Liverpool Hospital. She had finished mixing up an intravenous drip solution and was rushing from the drug bay to the paediatric area of the hospital to provide treatment to a patient. As she moved towards the patient’s bed, she inadvertently smashed her left knee against the bed rail, immediately feeling a popping sensation in her left knee.
That evening, the applicant was taken to theatre and underwent a left quadriceps tendon exploration together with arthrotomy and debridement of an osteophyte which had loosened into her patella, which had a significant “clunk on flexion”. There was also a significant haematoma in the left knee which needed to be reduced.
The clinical picture in the immediate aftermath of the injury reveals the applicant making complaints surrounding her right knee shortly after the left knee injury. The applicant's general practitioner, Dr Saremi, referred the applicant to Dr Russo on 23 January 2018. In that referral, the general practitioner referred specifically to Dr Russo for “an opinion and management pain left knee after patella fracture repair and also right knee since with favouring right knee.” (Emphasis added.)
Dr Russo reported back to Dr Saremi on 15 February 2018. He recorded the history of injury and in addition to the left knee questions, noted “she has been heavily favouring the right knee since her operation and has developed focal pain over the right knee more in the medial aspect.”
The respondent referred the applicant to Dr Price, injury management consultant and occupational physician. He provided a report dated 12 March 2018 in which he referred to the applicant's subsequent progress since the injury as follows:
“She was having increased pain due to limping on her right knee and so Dr Russo, who gave her an injection, if I understood her correctly, into the right knee, I presume, of PDP.”
Dr Price noted the applicant was still experiencing discomfort and was walking with a limp.
The applicant's IME, Dr Bodel, provided two reports. Dr Bodel initially provided an opinion which included attributing some of the applicant's ongoing issues, two, the nature and conditions of her employment. Such a claim is not made by the applicant in this matter. Rather, she relies purely on the presence of a consequential condition. Nevertheless, Dr Bodel took the following history in his first report dated 15 October 2019:
“The left knee steadily deteriorated. She again came under the care of Dr Chin and she has been off work since 15 July 2019. She has been told that she needs to consider a knee replacement on the left side which is not yet been numb.”
Dr Bodel then provided the following history which plainly contains a typographical error:
“She has had a past history of an injury to the right knee and about four years ago, she had a right total knee replacement done on 16 July 2019. The left knee at that time was okay until there was the injury to the quadriceps mechanism. The right knee is coping reasonably well post operatively and the left knee is now at the stage where it needs to be done.”
The parties agreed and it is readily apparent from an examination of the balance of the medical material, that the applicant did not have a right total knee replacement in or about 2015. Rather, she had an episode of right knee pain around that time, and it was only after the injury in December 2017 that she later came to undergo the right knee replacement.
Dr Ghabrial, IME, provided a report for the applicant dated 1 May 2019. It is relied upon in these proceedings only as to the history contained within it. In that history, Dr Ghabrial recorded the following:
“She developed increasing pain in her right knee (she had pre-existing pain in the right knee but she could handle work without any problems) and the pain in her right knee became quite severe following the injury to the left knee.”
The applicant’s right knee replacement surgery was carried out by Dr Gomes, who provided a report to Dr Saremi dated 10 May 2019. In that report, Dr Gomes noted “the right knee is a major issue and the discomfort has probably been exacerbated by the deterioration of the left knee.”
Notwithstanding the error as to the applicant's history, Dr Bodel’s opinion as to the cause of her right knee problems is broadly consistent with that of all of the treating practitioners. His diagnosis concerning the left and right knees was:
“This lady had a disruption of the quadriceps in the region of the left knee as a consequence of the event that occurred at work in December 2017. She has developed a consequential aggravation, acceleration, exacerbation and deterioration of a degenerative right knee caused by the nature and conditions of work while favouring the right leg to protect the injured left leg.”

Ms Goodman submitted, and I accept, that in referring to the nature and conditions of employment in that paragraph, Dr Bodel is in fact referring to the applicant having returned to work after the left knee operation for a period of time. Such a finding is consistent with the very wording of the paragraph, namely that the right knee symptoms developed and worsened due to her favouring the left leg after the injury. There is no suggestion the applicant was favouring her left leg before the injurious incident at issue. That finding is also consistent with the treating medical material.
As to causation, Dr Bodel was satisfied there was a direct causal link between the injury to the left knee and to the condition in the right knee.
For the respondent, Ms Belandra relied upon the report of Associate Professor Miniter, who opined that the applicant’s problems in her right knee were caused by the underlying osteoarthritic pathology. With respect to Associate Professor Miniter, however, that does not address the relevant test.
Unlike the factual circumstances in Grant, there is no real medical issue as to the cause of the underlying pathology at play in the applicant's knees. That is, it is uncontroversial to say that she suffered and continues to suffer from arthritic changes in those body systems. Dr Bodel explains the onset and development of right knee symptoms after the left knee injury as follows:
"There is well-established arthritic change in both knees and that is a given. The injury to the left knee has caused a significant load on that left knee and also consequentially on the right knee.”
Associate Professor Miniter focuses on the question of the pathology, not on the increasing symptoms suffered by the applicant. The facts of this matter sit comfortably within the ratios in decisions such as Kumar and Moon. The pathology in this matter is not in issue. It has not been suggested that this is a matter where the Commission needs to make a finding as to the nature of the pathology in the body part at issue, and in my view, there is no need for the Commission to embark upon such a fact-finding exercise, as all of the doctors agree about the nature of that pathology.
In my view, the medical and lay evidence in this matter is overwhelming. The applicant is a witness of truth. That much is demonstrated not only by her statement evidence being uncontested but by the fact that she volunteered the presence of pre-existing right knee problems some years before the injury at issue. Moreover, there is also no issue the applicant had carried out demanding work as a nurse for several years before the injury at issue and had done so without incident.
Moreover, each of Dr Russo, Price, Gomes and Saremi all referred to the applicant favouring her right knee following the left knee injury and the onset of the symptoms shortly thereafter. On a common sense evaluation of the evidence, the applicant has established an unbroken causal chain between the accepted left knee injury and the onset of the right knee consequential condition. As such, I find for the applicant in relation to the consequential condition in the right knee, and will therefore make the findings and orders as set forth on page 1 of this Certificate of Determination.

[2022] NSWPIC 431

2 August 2022