Zulamoska v ISS Property Services Pty Ltd
[2024] NSWPIC 552
•3 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Zulamoska v ISS Property Services Pty Ltd [2024] NSWPIC 552 |
| APPLICANT: | Violeta Zulamoska |
| RESPONDENT: | ISS Property Services Pty Ltd |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 3 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; applicant worked for 20 years to age 70 as a cleaner of a primary school alleging disease injury to her left knee; claim for weekly compensation and cost of, and incidental to, left knee total knee replacement; “injury” and whether the knee replacement was reasonably necessary treatment as a result of injury were disputed; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services, and Diab v NRMA Ltd applied; Held – pursuant to section 4(b)(ii) the applicant sustained an injury to her left knee with her employment with the respondent being the main contributing factor to the aggravation of disease; pursuant to section 60 the treatment proposed of left total knee replacement is reasonably necessary treatment as a result of injury in the course of employment with the respondent; the respondent is to pay for the costs of and incidental to the left knee replacement surgery; the respondent is to pay the claimed incurred section 60 expenses on production of accounts, receipts and/or Medicare Notice of Charge at the SIRA gazetted rates; the respondent is to pay the applicant weekly compensation pursuant to section 37; the claim for lump sum compensation is withdrawn. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained an injury to her left knee with her employment with the respondent being the main contributing factor to the aggravation of disease with a deemed date of injury of 1 November 2023. 2. Pursuant to s 60 of the Workers Compensation Act 1987 the treatment proposed by 3. The respondent is to pay for the costs of and incidental to the left knee replacement surgery. 4. The respondent is to pay the claimed incurred s 60 expenses on production of accounts, receipts and/or Medicare Notice of Charge at the SIRA gazetted rates. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 15 March 2024 to 31 March 2024 at the rate of $342.19 (being 80% of the pre-injury earning figure of $427.74), and (b) from 1 April 2024 and ongoing at the rate of $348 being 80% of the pre-injury earning figure of $435), subject to increases in the future for indexation. 6. The claim for lump sum compensation is withdrawn. |
STATEMENT OF REASONS
BACKGROUND
Violeta Zulamoska, the applicant, is 70 years old and has been employed by the respondent, ISS Property Services Pty Ltd, for 20 years as a primary school cleaner. She alleges she sustained an injury to her left knee with a deemed date of injury of 1 November 2023 arising out of or in the course of her employment and, in the alternative, she has suffered an aggravation etc of the disease in her left knee.
The compensation claimed in these proceedings is comprised of the following:
(a) Pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred expense for a consultation with Dr Lim on 30 November 2023 in the amount of $188, proposed expenses for consultations with Dr Chien, her treating orthopaedic surgeon and physiotherapy consultations. In addition, her Application to Resolve a Dispute (ARD) was amended to claim the cost of proposed left knee replacement surgery.
(b) Pursuant to s 66 of the 1987 Act in relation to permanent impairment of the left lower extremity. However, this claim is withdrawn if the applicant succeeds in relation to the proposed surgery claim as she concedes she would then have not reached maximum medical improvement.
(c) Weekly compensation pursuant to s 37 of the 1987 Act with her pre-injury average weekly earnings figure in the period 15 March 2024 to 31 March 2024 being $427.74 and in the period from 1 April 2024 ongoing at the rate of $435, due to indexation. (During the applicant’s submissions the respondent’s solicitor advised he would not be making submissions in relation to the weekly compensation claim.)
The respondent is a self- insurer. It issued a notice accepting provisional liability and making a work capacity decision on 24 November 2023.[1] On 22 February 2024 it issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that any injury was sustained in accordance with s 4, s 4(b) and /or s 9A of the 1987 Act and also disputing liability on the basis that the applicant had recovered from the effects of any injury sustained.[2] Liability was also disputed in relation to weekly compensation and s 60 expenses. Following the amendment to the ARD to include the claim for the proposed left knee replacement surgery, leave was given for the respondent to dispute whether this surgery is reasonably necessary treatment.
[1] ARD p 8.
[2] ARD p 15.
The applicant’s solicitor sought a review of this decision under s 287A of the 1998 Act relying on a report from Dr Chien dated 5 March 2024.
On 13 March 2024 the insurer issued a further declinature notice preferring the opinion from their Dr Wilcox.[3] On 4 April 2024 the applicant’s solicitor sought a further review of the declinature relying on a report from Dr Soo dated 3 April 2024.
[3] ARD p 21.
On 6 May 2024 the applicant’s solicitor filed the ARD and the insurer filed its Reply on
29 May 2024.On 11 July 2024 the insurer issued a further s 78 notice maintaining the declinature of liability and declining the claim made for the total knee replacement surgery which had apparently been made in letter dated 25 June 2024 by the applicant’s solicitor.[4]
[4] See AALD-1 p1-6.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter proceeded in arbitration hearing on 25 July 2024. Mr Joshua Beran, counsel, instructed by Walker Legal solicitors, appeared on behalf of Ms Zulamoska, who was present with her son. Mr Thomas Murray, solicitor, appeared for the respondent instructed by Mr Daniel Wood and Mr Villaver from the insurer.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD-1) dated 16 July 2024 filed by the respondent;
(d) Application to Admit Late Documents (AALD-A) dated 22 July 2024 filed by the applicant;
(e) correspondence filed by the respondent dated 31 July 2024 attaching the Resume of Dr Wilcox, and
(f) submissions in response filed by the applicant dated 12 August 2024.
Oral evidence
There was no oral evidence. Both parties made oral submissions which were sound recorded and a copy of the recording is available for the parties.
FINDINGS AND REASONS
Applicant’s statements
Ms Zulamoska has provided statements dated 3 May 2024[5] and 22 July 2024.[6] In her first statement she provides a detailed account of her duties as a cleaner for the respondent at Erskineville Public School where she worked each Monday to Friday 2.30pm to 6.00pm, when she was aged 50 to 70 years. These duties are discussed in more detail later in these reasons.
[5] ARD p 1.
[6] AALD-A p 1.
She describes the onset of pain in her left knee on Wednesday 1 November 2023, which she says was significant and the pain intensified as her shift progressed and her knee started to swell. She says she had to hold onto the railing as she went up and down the stairs due to the pain and weakness in her left knee. She says her knee was still painful on her journey home by train. She did not report her knee pain that day as it was too late.
She went to Dr Siddiq the next day and was prescribed medication and she had that day and the next off work. Her husband sent her sick leave certificate to her supervisor but did not mention her injury. She returned to work on Monday 6 November 2023 she says she felt better because of the medication and break from work. She states that during her work the pain became worse and she was struggling such as on the stairs. Her knee was still painful on the journey home from work.
She says the next day she could not stand without assistance and she was taken to St George Hospital where she stayed until 10 November 2023. Her knee was drained to reduce the swelling. She says her husband messaged her supervisor to inform him she would not be at work and that he would send in another certificate but he cannot recall if he told the supervisor of her injury or why she was in hospital. On 11 November 2023 she says her son, Jimmy, sent her supervisor her medical certificate from St George Hospital and told him she would return to work on 20 November 2023. She says her son says he did not mention her knee injury because he thought the supervisor had already been told about it by his father.
Her son called her present solicitor for help to make a workers compensation claim.
Ms Zulamoska then related attending upon Dr Mo at the Workers Doctors practice on
16 November 2023 and she relates details of her current condition. In her second statement she confirms that she wishes to have the knee replacement surgery recommended by
Dr Chien. She says she is in a lot of pain, limping and struggles with her daily activities and she has not returned to work since 6 November 2023.
Pradeep Adhikari’s statement
Mr Adhikari is the Client Service Manager of the respondent. He has provided a detailed statement dated 11 December 2023.[7] He confirms the duties performed by the applicant cleaning seven classrooms, the administration area, hall and four small bathrooms as well as external cleaning. He estimates she would spend one hour every shift vacuuming including around and under tables and chairs, wearing a back pack vacuum cleaner. He confirms there is no trolley to carry equipment due to there being stairs between buildings. At [38] he says he regards her duties as repetitive in nature and at [39] physical. He says bending, reaching and squatting are involved. At [48] he says she is a good cleaner. He says her last day at work was on 6 November 2023.
[7] Reply p 113.
Dr Saddiq
On 2 November 2023 at 09:06:20 Dr Saddiq records that Ms Zulamoska consulted him with a history of left knee pain for two days. On examination he found her knee was “swollen, tender, pre patellar area with effusion”. He diagnosed osteoarthritis and prescribed Celebrex capsules.[8]
[8] ARD p io157.
On 27 November 2023 Dr Saddiq requested Ms Zulamoska undergo a left knee aspiration under ultrasound guide. The history on the request is that she has recurring left knee pain with swelling affecting her mobility and that she stated she had a left knee injury at work from repeated squatting and heavy cleaning materials.[9]
[9] AALD-A p 2.
St George Hospital
Ms Zulamoska was an in-patient at St George Hospital from 7 to 10 November 2023.[10] She attended with a history of six days of left knee pain and swelling. It is recorded that on admission she described sudden onset of “atraumatic knee pain” which was affecting her ability to perform work duties as well as her usual home chores. She was unable to weight bear on her left foot and her mobility was impaired due to pain. On examination her left knee flexion was limited by pain, it was warm and an effusion was noted in the suprapatellar region. She was treated with a steroid injection in her left knee. In the Emergency documentation it is recorded “reports 1/52 hx swelling, worsened today”.[11] In the progress notes it is stated “pain and swelling in left knee since Wednesday 6/7 days ago”.[12] I note
1 November 2023 was a Wednesday. It is also recorded that she saw her general practitioner and was commenced on tablets for arthritis and she needed to take two days off secondary to pain, which improved somewhat over the weekend and she was able to go to work on 6 November 2023. The entry then states this morning (being 7 November 2023) Ms Zulamoska was walking in her kitchen and had a sudden onset of increased pain and inability to weight bear. Elsewhere in the notes it states she was usually active and on her feet most of the time at work[13] and that she worked as a cleaner in school 3.5 hours per day.[14][10] ARD p 36.
[11] ARD p 92.
[12] ARD p 95
[13] ARD p 97.
[14] ARD p110.
Dr Mo
Dr Mo is a general practitioner from the Workers Doctors practice. He has provided a report stating he saw Ms Zulamoska on 16 November 2023 following left knee pain at work on 1 November 2023.[15] He records the history of injury after repetitively squatting, climbing stairs and carrying heavy cleaning materials with 20 years of physical work. Dr Mo records that on 1 November 2023 Ms Zulamoska was walking upstairs with a vacuum on her back and experienced left knee pain and she continued working and finished her shift. He noted she took two days off work and attempted to return on 6 November but noticed severe worsening of her knee pain. On examination Dr Mo found swelling in her left knee, antalgic gait and an inability to bend through and load the knee. She had tenderness along the medial joint line and medial patella border. The doctor states that work was the main contributing factor to her injury. Dr Lim from the same practice provides the same report dated
30 November 2023.[16] He provided a referral to Dr Chien.[17] Dr Lim in report dated18 December 2023 alters his report slightly by adding that work was the main contributing factor for the aggravation, acceleration, deterioration and exacerbation of her condition and that she has aggravated the disease process.[18][15] ARD p 44.
[16] ARD p 47
[17] ARD p 53.
[18] ARD p 51.
On 30 November 2023 Dr Mo issued a SIRA Certificate of Capacity advising how the injury was related to work stating, “L) knee injury after repetitively squatting, climbing stairs and carrying heavy cleaning materials. This in the setting of 20 years of physical work”.
Dr Chien
Dr Calvin Chien is Ms Zulamoska’s orthopaedic surgeon. He has provided several reports including that dated 29 December 2023.[19] He states that the MRI scan revealed a meniscal tear, chondral injuries along with ACL and PCL tears. Dr Chien records that prior to
1 November 2023 Ms Zulamoska did have some knee symptoms but the injury of
1 November 2023 aggravated her symptoms. The doctor considered that her work over 20 years as a cleaner for the respondent was physical involving carrying a vacuum back pack, walking up stairs and squatting. In his first report he opines that the constant, repetitive duties would have contributed to the development of osteoarthritis but the incident on1 November 2023 acutely aggravated her condition. Dr Chien advised non-operative management including analgesia, rest and gentle physiotherapy. He noted weight bearing X-rays revealed advanced osteoarthritis. On examination he found an antalgic gait and varus alignment of the left knee and tenderness over the lateral, medial and patellofemoral compartments.[19] ARD p 54
On 5 March 2024 Dr Chien provided a report to Ms Zulamoska’s solicitor.[20] Dr Chien states that prior to 1 November 2023 Ms Zulamoska was able to perform all her work duties and her medical records do not reveal a significant problem with her left knee before that date. He expresses the view that her employment is a major contributing factor to her symptoms and diagnosis. He states that the osteoarthritis and some of the other MRI findings were likely pre-existing. He adds it is to be expected that there would be accumulated damage to her knees in an individual who has been working as a cleaner for over 20 years right up to the age of 70. Dr Chien explains that aggravation is a result of an additional insult often causing permanent increased derangement. He states this could be additional chondral damage, extension of a meniscal tear, fracture of pre-existing small exostoses or rupture of any remaining fibres of ligaments, all of which exist on her MRI and may have caused the large knee effusion.
[20] ARD p 56.
Dr Chien agrees with Dr Wilcox that minor every day strain could aggravate her knee but he pointed out that Ms Zulamoska’s everyday activity does not involve carrying an industrial vacuum and climbing multiple stairs. He says it is much more likely that that the injury occurred due to her work activity of commercial cleaning, especially as she is 70 years of age. He explains that an exacerbation can settle after rest, as it did with Ms Zulamoska after 1 November 2023 but it can be easily aggravated again especially as she returned to work. He says it is common sense that working as a cleaner would more likely cause an aggravation rather than standing in the kitchen. In this report he says he has recommended symptomatic management for now but should this fail she will likely need a knee replacement. He says a knee replacement will improve her function and pain significantly.
On 20 June 2024 Dr Chien reports that Ms Zulamoska returned to see him and her symptoms were continuing to interfere with her day to day activities. He said she walked into his room limping and she was considering a total knee replacement.[21]
[21] AALD-A p 20.
On 28 June 2024 Dr Chien provided Ms Zulamoska’s solicitor with a report stating she has significant osteoarthritis in her left knee. He says there is no doubt there will have been a pre-disposing condition but her employment was a major contributing factor to her developing symptoms. He explained that the underlying cartilage abnormality may have been present before she commenced employment with the respondent but it certainly worsened due to her employment duties and her symptoms appeared out of it.
Dr Chien commented on the opinion of Dr Wilcox about her duties being classified by the US Department of Labour as being light to moderate, and that her pre-existing degenerative pathology had reached a stage whereby even a minor everyday strain could cause it to become symptomatic. Dr Chien says these statements actually support Ms Zulamoska’s case. He states that her regular work duties over time had made her knee condition worse and made it symptomatic. He makes the point that light to moderate duties to a young American labourer can be considered as heavy for Ms Zulamoska. He says the stair climbing at work is much greater than when she was not at work. He also states that the history taken by Dr Wilcox about her presentation was not noted by him over several visits.
Dr Chien opines that as Ms Zulamoska persists with disabling symptoms despite six months of non-operative treatment the proposed knee replacement surgery is reasonably necessary.
Dr Chien provided a further report dated 12 July 2024, he again challenges Dr Wilcox’s views about causation and the need for surgery. He also draws attention to the fact that he is the treating orthopaedic surgeon and Dr Wilcox is a general surgeon.[22]
[22] AALD-A p 26.
Dr Soo
Dr Soo is an orthopaedic surgeon specialising in shoulder and knee surgery. He has provided medico-legal reports for the applicant dated 3 April 2024[23] and 27 June 2024.[24] He has a brief history of the development of the left knee pain. On examination he found that
Ms Zulamoska walked with an obvious limp, was unable to perform a deep squat due to pain in the left knee and she had marked crepitus and tenderness to the medial facet. The doctor diagnosed aggravation of underlying severe osteoarthritis of the left knee. Dr Soo recommended in his first report for Ms Zulamoska to exhaust all non-surgical measures including physiotherapy, hydrotherapy, pain management, cortisone injections and activity modification. He said if these measures fail to improve her pain or function the only option is total knee replacement, which would be reasonably necessary as a result of the work injury on 1 November 2023.[23] ARD p 29.
[24] AALD p 27.
In his second report Dr Soo reviews the report by Dr Wilcox. He agrees with Dr Wilcox that Ms Zulamoska’s symptoms are due to underlying degenerative and pre-existing osteoarthritis in the left knee but Dr Soo states that he believes that there has been aggravation of the arthritis caused by her job as a cleaner and that her employment has been the main contributing factor to the aggravation and to the need for the knee replacement recommended by Dr Chien.
Dr Wilcox
Dr Wilcox according to his Resume held multiple surgical positions from 1966 to 1984 and he states he performed many orthopaedic cases in his operating lists. His qualification is as a surgeon. There is no evidence on his resume that he has performed knee replacement surgeries.
He has provided reports to the insurer dated 5 February 2024,[25] 14 May 2024[26] and
2 July 2024.[27] In his first report he takes a history relating the circumstances of the alleged injury to Ms Zulamoska’s left knee. He recounts that she said on 1 November 2023 she was walking up a flight of stairs at the school, wearing the backpack vacuum cleaner when she felt a minor pain in her left knee. She continued to walk up the stairs and performed her normal duties until the end of her shift but the pain in her left knee continued and became more uncomfortable. She did not mention it to anyone as she was on her own at the school with her shift ending at 6.00pm. She caught the train home and said when she was walking up the stairs at Sydenham Station the pain in her knee significantly increased and she had to use the handrail. The following morning her knee was more painful and on 2 November 2023 she saw Dr Saddiq, who was not her normal general practitioner. She says she was prescribed analgesics. She performed her normal work on Monday 6 November 2023 but at the end of her shift she walked up and down the stairs at the train station holding the handrail. When she got out of bed the next morning she felt pain in her left knee, with sudden sharp pain when she went into her kitchen to make coffee. She went to St George Hospital.[25] Reply p 1.
[26] Reply p 15.
[27] AALD-1 p 7.
Dr Wilcox has a history that she was an in-patient for three days and had aspiration of the knee which made the pain a little better. Following this she has not returned to work. She then had physiotherapy twice a week with no benefit and she has decreased her painkillers.
The doctor sets out a history about her work duties. In his opinion Dr Wilcox states that her description of her duties would be classified by the US Department of Labour as being light to moderate. He said they were not heavy and did not require a lot of squatting or kneeling. Dr Wilcox says that the radiology indicates she had pre-existing degenerative changes principally osteoarthritis affecting her left knee joint.
Dr Wilcox says there was no specific incident or injury and she was just walking up the stairs normally when she felt something in the left knee. He opines that her pre-existing pathology had reached the stage whereby even a minor everyday strain could cause the pathology to become symptomatic. He opines that the walking up the stairs was not a substantial contributing factor to her subsequent symptoms. He adds that it was walking up the stairs at Sydenham Station when she experienced more definite severe left knee pain. He also stated that she was able to work on 6 November 2023 and given her most severe knee pain was on 7 November 2023 at home are reasons to conclude she had no workplace injury.
Dr Wilcox discusses various journal articles he says the significant contributing factors to her osteoarthritis in her left knee is her obesity, being female, her malaligned knees and possibly a genetic causation. He adds if she does need a knee replacement in the future is due to the underlying disease not her employment. Dr Wilcox recorded her height at 151cm and weight 76.3kg.
In Dr Wilcox’s report dated 20 May 2024 he has the history that her knee pain has increased a lot.
Submissions
The parties’ submissions have been sound recorded and therefore I will not recount them verbatim. The main thrust of their submissions is summarised below.
Ms Zulamoska’s counsel submitted about the following:
(a) The nature of her work duties:
(i)that she has worked for 20 years for the respondent, working three and a half hours every day Monday to Friday at Erskineville Public School and she started this work when she was 50 and is now 70 years of age performing duties that are repetitive with bending and crouching and frequent use of her knees;
(ii)in her statement she describes her cleaning duties including seven classrooms, five bathrooms, an office and a large and small kitchen. She vacuums one to one and a half hours every day carrying a backpack vacuum cleaner weighing 5 to 10kg. She is required to wipe down benches and tables and carry rubbish bins and mop. There is no trolley because of the stairs so she has to carry the equipment;
(iii)Mr Adhikari, Ms Zulamoska’s supervisor, confirmed in his statement in the Reply that her duties were repetitive and physical in nature;
(iv)as it is a primary school, all the tables and chairs are small so she has to bend to get under the tables. Counsel argues this is a crucial history not taken by Dr Wilcox, the respondent’s IME, and
(v)Dr Wilcox does not accurately understand what Ms Zulamoska’s duties were as the doctor states that her description of duties would be classified as “light to moderate” and did not require a lot of squatting or kneeling. It was submitted that this inadequate history infects all of Dr Wilcox’s reports and if one cannot accept his underlying history of her duties, you cannot accept his opinion based on that history. As further example of an inadequate history, counsel cited Dr Wilcox stating that her work consisted of mainly standing and walking.[28] Counsel submitted that the doctor showed no understanding of the bending involved to clean under the small tables and chairs.
[28] Respondent’s AALD p 10.
(b) The revelation of her symptoms occurred on 1 November 2023 but the genesis of her condition is the nature and conditions of her employment. It is argued in the alternative that Ms Zulamoska’s employment is the main contributing factor to the contraction of disease or exacerbation, acceleration or aggravation of the disease.
(c) It was also submitted that Dr Wilcox is a general surgeon not an orthopaedic surgeon, unlike Dr Chien and Dr Soo who support Ms Zulamoska’s claim.
(d) In terms of causation and the issue of injury, reliance was placed upon the opinion of Dr Chien, from whom there are numerous reports. He is her treating orthopaedic surgeon. In addition, counsel submitted that while Dr Soo’s reports are not of particular assistance regarding causation, they are helpful in relation to the issue of the need for surgery.
(e) Counsel summarised her treatment and her recount of her current symptoms in Ms Zulamoska’s statement and he submitted that she is severely disabled because of the condition in her left knee. Ms Zulamoska’s counsel also referred to her statement in the Late Documents wherein she describes seeing Dr Chien and that a knee replacement was recommended and that Ms Zulamoska wants to have the left knee replacement surgery.
(f) Ms Zulamoska did not have many problems with her knee before her condition became manifest on 1 November 2023 as the clinical records from the Beverley Hills Medical Centre and Hurstville Town Medical Centre show. The first record of the left knee is 2 November 2023. Counsel noted that Dr Wilcox surmised that
Ms Zulamoska must have been limping for some time due to having plantar fasciitis. However, her counsel submits there is only one entry in the clinical notes about this, that is on 2 September 2023 but it is only mentioned once with no further record of left foot pain.(g) In the late documents filed by the applicant at page 2 there is a referral from
Dr Saddiq for left knee aspiration. The clinical entry refers to left knee injury at work with repeated squatting. The St George Hospital records show she presented with left knee pain affecting her work duties. Dr Mo takes history of the work injury and says work was the main contributing factor. Dr Chien opines that her constant repetitive duties would have contributed to the development of osteoarthritis and he opines that regarding the aggravation of left knee osteoarthritis her employment is the most significant contributing factor. Counsel submitted the fact that Dr Wilcox says she may have been more vulnerable due to her age is not the test. Dr Wilcox’s opinion about commercial cleaning versus home work is not sound.(h) Dr Chien says Ms Zulamoska’s presentation to him differed to that recounted by Dr Wilcox of her not needing a walking stick and only taking two Panadol per day. Whereas, Dr Chien says she walked into his consultation rooms limping. Her counsel submits that there is no medico-legal benefit for her to limp when she was seeing her own treating doctor.
(i) Counsel submitted that Dr Chien reinforces his opinion that Ms Zulamoska needs the knee replacement surgery. He points out that he has seen Ms Zulamoska on multiple occasions and in the further report of 12 July 2024 Dr Chien draws attention to Dr Wilcox being a general surgeon not an orthopaedic surgeon.
(j) Counsel refers to Dr Soo’s report and notes no prior history of left knee pain. In respect to treatment he recommends conservative treatment but says if these fail to improve her pain and function the only option is knee replacement. In his supplementary report Dr Soo accepts the fact that there is pre-existing osteoarthritis but states that there was aggravation at work on or following the incident of 1 November 2023. He says the job of cleaner is main contributing factor to aggravation of osteoarthritis and to the need for surgery.
(k) If the opinion of Dr Wilcox is rejected, the Commission is left with the opinions of Dr Chien and Dr Soo. Counsel concedes Dr Soo is not helpful regarding causation but argues the doctor does support the need for surgery.
(l) The need for surgery results from the ongoing symptoms, which are ongoing and the chain of causation has not been broken, as the symptoms have persisted since November 2023 and there is no alternative to surgery. Dr Chien and Dr Soo support that Ms Zulamoska has exhausted conservative treatment and needs surgery. There is a material contribution as the underlying osteoarthritis condition was either caused by employment or aggravated by employment. He submits the principles of Diab v NRMA Ltd[29] have been satisfied.
[29] [2014] NSWWCCPD 72, Diab.
The applicant’s counsel submitted that Ms Zulamoska has no capacity for employment and the respondent’s solicitor stated he would make no submissions about capacity.
The respondent submitted:
(a) There is tension in the way the applicant has presented her case. It was argued that Dr Soo relies upon an aggravating event on 1 November 2023 but the applicant’s counsel stated there was no event on that day and that was the time of the realization of symptoms and the injury was sustained solely due to the nature and conditions of her employment.
(b) There is no evidence of the height of the tables and chairs in the applicant’s statement nor in the medical evidence she relies upon. Dr Chien does not discuss this. Therefore, it is submitted that the same alleged deficiencies in
Dr Wilcox’s reports feature in all the applicant’s reports.(c) Ms Zulamoska states walking up and down stairs caused her injury. Furthermore, from her statement it seems her son called Walker Legal before any injury was reported or notified and prior to her giving a history to medical doctors about work. She then attends the medical practice of Workers Doctors and Dr Wilcox has the history that this was due to her solicitors’ recommendation. The submission was made that it is only after attending Workers Doctors that the initial WorkCover certificate was issued.
(d) The respondent relied on the early medical evidence to suggest that work was not the cause of Ms Zulamoska’s left knee condition. It referred to Dr Siddiq, who Ms Zulamoska saw on 2 November 2023, did not have history of work injury and his certificate does not suggest she had a work-related injury. Also, the St George Hospital records for 7-10 November 2023 records refer to atraumatic left knee pain, pain and swelling in left knee since Wednesday doing housework. It was submitted that Ms Zulamoska at these attendances did not report any work related injury nor did she complain about her duties as being responsible for her symptoms. The respondent submitted that she has the onus of proof and she has not discharged it as Dr Chien and Dr Soo did not grapple with this medical evidence. The respondent relies upon cases such as Paric v John Holland (Constructions) Pty Ltd[30] and Hancock v East Coast Timber Products Pty Limited[31].
(e) It was submitted that Ms Zulamoska has a significant underlying osteoarthritis condition and the respondent argues that this is what caused the aggravation in her left knee and this thesis has not been dealt with by the applicant’s doctors. Reliance was placed on Dr Wilcox’s opinion that innocuous events can aggravate osteoarthritis. He referred to the six day history recorded of left knee pain with sudden onset affecting her ability to perform her work duties and housework.
(f) The respondent was critical of Dr Chien because his initial history was there was onset knee pain walking upstairs carrying vacuum and he noted she already had some knee pain. The respondent says Dr Chien has not applied the correct test when he states that constant repetitive duties for 20 years would have “largely contributed” to the development osteoarthritis, whereas the correct legal test is whether the employment was the main contributing factor to the cause or aggravation of the condition.
(g) In relation to whether the proposed surgery is reasonably necessary treatment, the respondent submits that both Dr Chien and Dr Soo wished Ms Zulamoska to exhaust all non-operative treatment before considering a knee replacement. But there is no evidence of Ms Zulamoska having physiotherapy between March and June 2024. The respondent submits there is no evidence of her exhausting conservative treatment. Reference was made to the physiotherapy notes which showed she was deriving some benefit from the treatment.
(h) In respect to the applicant’s counsel challenging Dr Wilcox’s qualifications it was submitted that he is a SIRA qualified assessor of the lower limb to provide assessment of permanent impairment and he has presented papers at orthopaedic conferences. It was argued that therefore his qualifications cannot be said to give rise to a conclusion that his opinions should have no weight.
(i) It is unarguable that some individuals may find duties more arduous than others but that does not negate Dr Wilcox’s opinion. His opinion is more logical that her underlying knee problem became symptomatic with minor every day employment and her underlying condition would have become symptomatic no matter what she did that day. The respondent also submitted that there is no evidence employment being causative of the knee pathology. Dr Chien does not discharge her onus. It was argued that Dr Wilcox makes specific reference to the St George Hospital records and the applicant’s doctors have not considered this. Dr Wilcox does not accept employment made any contribution to aggravation of that pathology.
(j) It was submitted that Dr Chien’s report in the Late Documents does not add anything because it is just a restatement of his opinions, not based on any updated history. It was also submitted that even though Dr Chien has Dr Wilcox’s report he does not engage with evidence such as from St George Hospital and also that because symptoms started on 1 November 2023 at work does not mean that work caused this, especially Ms Zulamoska concedes no injury occurred that day.
(k) Dr Wilcox says Dr Chien has not referred to the most severe symptomatic exacerbation at home on 7 November 2023 so it was argued that there is significant difficulty in accepting Dr Chien’s opinion.
(l) Dr Wilcox refers causative factors such as age, weight and being female and Dr Chien does not refer to these. And finally, Dr Wilcox says she has not reached time for knee operation. There is no evidence that Ms Zulamoska has exhausted conservative treatment and Drs Chien/Soo had earlier required her to do more physiotherapy and there is no explanation for a change in their views, that surgery is now required. It is submitted that Diab has not been complied with as there are less costly and risky treatments she should undertake.
[30] [1985] HCA 58; 59 ALJR 844, Paric.
[31] [2011] NSWCA 11, Hancock.
In reply, the applicant’s counsel submitted that liability for physiotherapy was disputed by the insurer in March and it is now incongruous that the insurer says she should have had more physiotherapy. Ms Zulamoska relies upon Dr Soo’s opinion that if she was not better in three months, she should have surgery.
It was submitted that it is not case that nothing happened on 1 November 2023, as Ms Zulamoska was working and climbing stairs. It was submitted that the work duties exacerbated her condition over a period of time of 20 years and it does not matter that anything could have aggravated it, because the work duties were the main contributing factor to the aggravation. Counsel relied upon the decision in AV v AW[32], submitted that absence of medical evidence about main contributing factor is not fatal as it is Member’s decision.
[32] [2020] NSWWCCPD 9, AV v AW.
Counsel submitted that there was nothing in the general practitioner’s notes to show
Ms Zulamoska had prior knee symptoms. He also submitted that Dr Wilcox may be trained about assessing impairment but he is not qualified to give opinion about surgery.
DETERMINATION
Injury
In Ms Zulamoska’s case the disease provisions are relevant. It is not in dispute that she suffers from a disease in her left knee in the form of osteoarthritis. The dispute centres on whether she has satisfied the requirements in s 4 (b) of the 1987 Act which provides that the employment must be the main contributing factor to the contracting of the disease or to the aggravation etc of the disease.
The legal test of causation was discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[33] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. The Court also recognised that an event can set in train a series of events.
[33] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
To determine the cause of her complaints in the left knee and whether her employment has been the main contributing factor to the aggravation of the osteoarthritis in her left knee one needs to firstly consider in some detail the nature of her work duties.
At [29] of her statement Ms Zulamoska says the kid’s tables and chairs are very close to the ground because they are young primary school children and so there is extra bending and crouching to clean under the tables. While Ms Zulamoska has not given the height of these tables and chairs, I find she has described them sufficiently for me to conclude that she did engage, as she says, in crouching and bending to clean under them. I also find that other relevant facts have been established by her such as the duration of her employment, for 20 years, that she worked five days per week, she was required to walk up and down stairs with a vacuum backpack and carry equipment, that her duties were physical and repetitive. I find that her supervisor, Mr Adhikari, supports her evidence.
In addition, I find it is relevant to take into account her age. She commenced this employment when she was 50 and worked until she was 70. To the extent the respondent has endeavoured to cast doubt on her credit, by submitting that she did not report her work being the cause of her left knee symptoms until after she saw a lawyer and went to Workers Doctors, I reject the tenor of that submission.
Ms Zulamoska has impressed me as a hard-working woman who has provided a detailed and credible account of her duties over 20 years, and on 1 November 2023 and in the days following. In her statement I find no attempt at embellishment. The respondent’s lay evidence is confined to Mr Adhikari, whose statement I find is supportive of Ms Zulamoska’s evidence. He refers to her having to clean under tables and chairs and her duties involve bending, reaching and squatting. He states she is a good cleaner. She has explained at [38] of her statement that she did not report the pain in her left knee on 1 November 2023 as she says it was too late in the day. Mr Adhikari recounts she ends work at 6.00pm so I find it is credible that it was too late for her to report her left knee pain to her employer.
She explains how the symptoms came on in her knee on 1 November 2023, that she had significant pain in the knee and it began to swell. It is a testament to her that she completed her work shift despite having to hold on the railing for support to assist her to go up and down the stairs at the school. She says her left knee was still painful on her train journey home from work that day.
Dr Wilcox has taken a history about Ms Zulamoska experiencing pain in her left knee while walking up the stairs at work. He acknowledges that she said the pain in her left knee continued and became more uncomfortable during her work shift. He says walking up the stairs at Sydenham Station resulted in the pain in her knee being significantly increased and she had to use the handrail. I find that this does not mean she did not have an aggravation of her underlying osteoarthritic condition because of her work. Her knee was already symptomatic before she set off for home and it is not surprising that she had difficulties on that journey in those circumstances.
Dr Wilcox’s opinion about the onset of pain in Ms Zulamoska’s left knee on 1 November 2023 in his first report is focused on there being no actual injury and the fact that the extensive abnormalities found in the knee could not have been caused by walking upstairs in a normal manner. However, Dr Wilcox does not consider if a 20-year history of performing her employment duties could have aggravated her left knee underlying osteoarthritic condition to render it symptomatic. Dr Wilcox is quite dismissive, classing the onset of symptoms to a “minor everyday strain”. I reject this characterization of Ms Zulamoska’s work. She had to walk up and down the stairs at the school multiple times in a shift with a vacuum on her back and carry equipment, together with her other duties. The fact that he says it was the more severe pain at Sydenham Station walking up the stairs does not detract from the conclusion that her work over 20 years aggravated her osteoarthritis, particularly when one takes into account her age from 50 to 70 performing this work. Applying Kooragang, I find the preferable conclusion is that her employment set in train the likelihood on the balance of probabilities that such work duties were the main contributing factor to her osteoarthritis becoming symptomatic. I consider it is artificial to consider the causation issue as Dr Wilcox does. I accept Ms Zulamoska’s counsel’s submission that his reports have been infected with a faulty understanding of the nature of her work duties. Her work has been constant for 20 years, repetitive and physical and involved bending and crouching every day to clean under the low tables and chairs in multiple classrooms.
Dr Wilcox also attempts to downplay the role of her work by focusing on the onset of pain on 7 November 2023 in her kitchen as being causative. The reality is once her left knee became symptomatic on 1 November 2023 the aggravation caused by her many years of work did not cease. I accept the submissions of Ms Zulamoska’s counsel that the genesis of her injury was the years of work and the symptoms on 1 November 2023 and following were the revelation of that injury.
Dr Wilcox relies on the US Department of Labour classifying her duties as “light to moderate” however, even if that characterization is apt that does not mean performing such work over 20 years could not have aggravated underlying osteoarthritic disease in her left knee. In any event, I do not find this characterization helpful instead I find one needs to focus on the actual work Ms Zulamoska did for 20 years, five days per week and the physical requirements of her actual job. Dr Wilcox says, “there could have been no strain going through the knee other than climbing stairs which is done by almost everybody during the course of a day”.[34] I find this demonstrates a simplistic approach to the facts of the case by the doctor. Firstly, it ignores the fact that Ms Zulamoska went up and down stairs repeatedly at the school every day, five days per week for 20 years. Just because that was when her symptoms became apparent does not mean the climbing of the stairs that day was the cause. The doctor has not taken into account the whole of her working life. Dr Wilcox speaks of the pathology in Ms Zulamoska’s left knee as showing “extensive abnormalities”. He does not consider if her work over many years aggravated the underlying disease.
[34] Reply p 8.
I also reject Dr Wilcox’s attempt to break down the sequence of Ms Zulamoska feeling pain in her knees and trying to attribute the walking up the stairs at Sydenham Station as the cause or standing in her kitchen making coffee was causative. This approach again does not focus on the issue as to whether her work was the cause of the aggravation, rendering her left knee pathology symptomatic. While it is true that Ms Zulamoska did housework over the period of employment and moved about outside of work, I find the impost of her work being repetitive, constant and involving bending, carrying vacuum on her back, carrying equipment up and down stairs have led me to the view that her work was the main contributing factor to the aggravation of her left knee disease.
I reject the opinion of Dr Wilcox and prefer the opinion of Dr Chien who is the treating orthopaedic surgeon who I find is better placed to consider issues of causation because he has seen her on more than one occasion. Also, I find his qualifications are more relevant than that of Dr Wilcox. An orthopaedic surgeon who is currently practicing and specializes in operating on knees to my mind should be preferred to the opinion of a general surgeon concerning whom there is no evidence that he has performed knee replacement surgery.
I do not accept the respondent’s submission about the inadequacy of Dr Chien’s history of Ms Zulamoska’s work duties. In his first report he does refer to her having to squat. While he does not refer to cleaning under low desks, in my view the doctor does demonstrate an appreciation of the full range of Ms Zulamoska’s duties whereas Dr Wilcox does not. As Dr Chien states her duties were more than minor every day strains and I accept his opinion that it is more likely than not that the injury occurred due to her work activity of commercial cleaning, especially due to age, rather than her housework. The respondent also argued that as Dr Chien and Dr Soo did not refer to the St George Hospital records that should diminish their opinions. I do not accept this argument. The St George Hospital records have a history that I find is consistent with a history of Ms Zulamoska becoming symptomatic at school on 1 November 2023. The Hospital records refer to a six-day history of left knee pain and swelling, this was on 7 November 2023. It was also noted that this pain affected her ability to perform work duties. Finally, I find that Dr Siddiq’s examination on 2 November 2023 to be highly relevant because he found her knee was swollen and tender, there was effusion. He prescribed Celebrex. This is consistent with Ms Zulamoska’s statement and even though he does not provide an opinion about the cause being her work the timing is consistent with the revelation of her symptoms, as she states at work. Furthermore, in the request dated 27 November 2023 for Ms Zulamoska to undergo left knee aspiration under ultrasound, Dr Siddiq does refer to left knee injury at work from repeated squatting and using heavy cleaning materials.
I am satisfied that Ms Zulamoska has discharged her onus of proof that she has sustained an aggravation of disease in her left knee with her employment being the main contributing factor to that aggravation.
“as a result of”
In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd,[35] whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under s 60 of the 1987 Act.
[35] [2015] NSWWCCPD 49, Murphy.
Deputy President Roche stated at [58]:
“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).”
I find that Ms Zulamoska has established that the workplace injury has materially contributed to the need for surgery for the reasons set out earlier. The fact is that since her symptoms emerged at work on 1 November 2023 they have not ceased, the aggravation is ongoing. Dr Chien has recommended surgery and this is supported by Dr Soo.
“Reasonably necessary”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Ltd[36] wherein Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
[36] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[37] with approval and stated:
[37] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The respondent relies upon the fact that Dr Chien initially recommended further conservative treatment. However, time has progressed and the insurer declined to fund such treatment.
Ms Zulamoska has explained how her symptoms have persisted and become worse. I find that Dr Chien is best placed to advise on whether the surgery is reasonably necessary because he has seen her multiple times, he is in the best place to gauge if further conservative treatment should be undertaken. He now supported proceeding with the surgery. I accept his opinion. He is an expert in performing knee surgery. There is no evidence that Dr Wilcox has ever performed a knee replacement or even evidence as to whether he last operated on someone. Dr Chien currently practices. I find these facts have led me to place more weight on his opinion than that of Dr Wilcox.I find the factors in Diab have been satisfied. A knee replacement is appropriate treatment for Ms Zulamoska’s knee complaints according to Dr Soo and Dr Chien. The alternate treatment of more physiotherapy will not cure Ms Zulamoska and its effectiveness must now be questioned so long after the injury whereas the surgery is more likely than not to be effective to give her more pain free function in the knee. The cost of the treatment is not a particular issue and, in any event, I find is within the range of costs of appropriate treatment.
Therefore, I find that the surgery proposed by is reasonably necessary treatment as a result of the deemed date of injury of 1 November 2023 and I order that the respondent is to pay the costs of, and incidental to that surgery.
There were additional past s 60 expenses claimed and given my findings above, I have made a general order in the applicant’s favour for these expenses.
The weekly compensation claim has been effectively conceded, should the applicant succeed on liability and orders have been made under s 37 of the 1987 Act.
Finally, the applicant advised should she succeed on the treatment dispute claim she would withdraw the lump sum claim because having surgery would render her not maximum medical improvement. Therefore, I have made an order to that effect.
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