CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Burrell v Marble Group Pty Ltd [2023] NSWPIC 481	
		
APPLICANT:	Brandon Burrell	
		
RESPONDENT:	Marble Group Pty Ltd	
		
Member:	Diana Benk	
DATE OF DECISION:	18 September 2023	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; expenses for right knee arthroscopy; medical evidence with respect to material contribution; Murphy v Allity Management Services Pty Ltd considered; Held – award for the applicant pursuant to section 60.

determinations made:	The Commission determines:
1.	Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant’s medical, hospital and related treatment expenses of, and incidental to, the arthroscopic procedure requested by Dr Rahme – AMA Item Number MW260.

	
STATEMENT OF REASONS
BACKGROUND
1.	Mr Burrell (the applicant) sustained an injury to his right knee on 13 November 2019.  Liability was accepted by the respondent. Following arthroscopic repair in December 2019 and a period of rehabilitation, the applicant returned to pre-injury duties in March 2020 ultimately resulting in his case being closed by the insurer.
2.	In August 2022, the applicant requested the respondent reopen his claim and meet the costs of arthroscopy proposed by his specialist Dr Rahme.
3.	In a s 78 notice dated 16 August 2022, the respondent rejected the claim without obtaining independent medical or factual evidence. It denied liability for the following reasons;
“You have recently experienced increased pain in your right knee over the last 1-3 months after standing up from a crouched position. Associated locking and a repeat MRI imaging that you had in June, noted a further tear to the posterior horn of the medial meniscus. 
It is in our opinion, that the new tear to your right knee is casually related to the 2022 injury where you stood up from a crouched position, rather than a recurrence of the injury of 13 November 2019. You had previously made a good recovery and reported to be asymptomatic. 
Based on this information we do not agree that your new tear to your right knee injury is a recurrence of the injury of 13 November 2019. It follows that under this claim, no compensation is payable for weekly payments, medical or related treatment for the new tear to your right knee injury in accordance with Section 33, 59 and 60 of the Workers Compensation Act 1987.”
4.	A request for further internal review was unsuccessful prompting the Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission). 
5.	The standard case management pathway was employed with a preliminary conference convened at which time the respondent’s Reply was filed out of time. This was relevant as the respondent sought to amend the s 78 grounds for dispute to include ss 4b, 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act). These amendments were opposed both at the preliminary conference and at the Arbitration hearing as they did not form part of the 
s 78 dispute notice and so failed to comply with s 79(3) of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act). 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
6.	At the conciliation/arbitration hearing, the applicant was represented by Ms Compton of counsel instructed by Mr Bechara. The applicant was present. The respondent was represented by Mr Hanrahan of counsel instructed by Ms Ralph. A representative from the insurer, Mr Vincent was present. 
7.	Following robust and at times forceful discussion via facilitated conciliation, galvanised impasse resulted in a joint request that I determine whether the injury on 13 November 2019 made a material contribution to the need for the surgery proposed.  
8.	Conciliation resulted in the respondent abandoning its request to amend the s 78 notice to plead the defences of ss 4b, 15 and 16 and not opposing the applicant’s Application to Admit Late Documents. Despite this, it continued to encourage the applicant to discontinue the proceedings and join subsequent employers/insurers, such invitation being vociferously declined by the applicant. The applicant did not oppose the admission of the attachments to the late reply, which regurgitated its own medical evidence.
EVIDENCE
Documentary evidence
9.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents;
(b)	documents attached to the Reply, and
(c)	Application to Admit Late Documents filed 13 September 2023.
Application to Resolve a Dispute’s evidence
Applicant’s statement
10.	The applicant was not cross examined. The history of injury is recorded in his statements dated 20 June 2023 and updated statement dated 11 September 2023.
11.	The statement dated 20 June 2023 confirms the injury on 13 November 2019 and its sequelae including incapacity for work, right knee arthroscopy on 19 December 2019 and subsequent rehabilitation with the applicant asserting he continued to have problems and limitations in the right knee following surgery, but tried to get back to work for financial reasons and also because he enjoyed working. 
12.	The statement continues with the applicant declaring that he had a relapse/recurrence of his right knee symptoms on 25 May 2022 whilst working as a product assembler with another employer and where he was required to repetitively alternate between squatting and bending motions and where he ‘stood up and felt an instant, shooting pain in my right knee’ resulting in the knee giving way and him collapsing to the ground. Assessment at the hospital on the same day and review by Dr Rahme indicated further surgery was required. 
13.	Functional limitations said to arise out of the 13 November 2019 injury are enumerated in paragraph 36 of the statement including chronic knee pain, swelling, decreased range of motion, weakness, restricted ability to climb, squat, bend, crouch and kneel coupled with mental and social impairment. 
14.	Paragraph 37 represents ‘to the best of my recollection, I have no prior medical history relating to significant injury, illness or disability’. 
15.	Paragraph 53 states ‘since my injury’ (13 November 2019), restrictions in regard to employment, social, domestic, recreational, sporting and employment activities continued. 
16.	The supplementary statement dated 11 September 2023, reinforces that despite being certified fit to work following his rehabilitation from the 13 November 2019 injury, that from 
22 May 2020 he continued to suffer pain, restriction, instability, locking, loss of strength, and instability. 
17.	Paragraph 11 of the above statement confirms that ‘I suffered a relapse of my right knee symptoms when I was standing up from a crouched position’ on 25 May 2022’. The statement continues by declaring that the general practitioner, Dr Faraj and orthopedic specialist Dr Rahme informed the applicant that the recurrence was due to the original injury, which resulted in the applicant approaching the insurer for indemnification for surgical costs.
18.	Paragraph 21 of the statement fortifies the previous representations that the applicant did not suffer a ‘fresh injury with my new employer. I have continued to have right knee pain and restrictions, loss of strength and locking with my right knee after my surgery, and this caused my right knee to give way and collapse at the time’.  
Dr Rahme
19.	The request for surgery by Dr Rahme is dated 3 August 2023. The report is repeated in full (unedited):
“Brandon is two-and-a-half years since undergoing right knee surgery for repair of a bucket-handle tear of the medial meniscus. Brandon recovered well returning to normal function including work. Over the last two months unfortunately he has had increased pain and locking in the right knee. A recent MRI has demonstrated propagation of the original medial meniscal tear with an unstable component. Brandon would benefit from an arthroscopy for debridement of the unstable component of the meniscal tear. 
I expect Brandon will require two weeks off work and then may return to light duties thereafter, aiming to be able to perform pre-injury duties by approximately six weeks after surgery. Will Brandon’s insurer please indicate acceptance of liability for AMA Item #MW260 so that we may proceed with surgery in a timely fashion.”
Dr Kai Lee
20.	Dr Lee was qualified by the applicant. In a report dated 5 April 2023, he records a history of the incident and treatment following the 13 November 2019 incident, then stating:
“’On or around 25/05/2022 he was doing installation and as he got up, the knee locked again. He stopped working for a few days. His boss gave him lighter duties. When 
Dr Rahme wanted to re-scope his knee, he was told to submit a new claim. Unfortunately, he did not have his own insurance. His boss was kind enough to allow Brandon to claim through his insurance, but they have not gone through the red tapes yet. He is not having physiotherapy. He is working 4 days a week mainly in the workshop and delivery’…
Brandon was 179cm tall weighing 60kg. There was gross wasting of the right quadriceps muscle. The thigh measured 37cm 10cm above the patella on the right side and 40cm on the left. There was a flexion contracture of just over 10° and he could flex to 110° on the right. His left knee was straight and could flex to over 130°. There was no observable swelling. He has pain in all compartments of the right knee. The grinding test was painful in both medial and lateral compartments…
Brandon suffers from torn medial meniscus right knee and requires arthroscopy….
Brandon used to play NRL, running, swimming, and cycling. He did not go back to these activities after the first injury. He was not confident enough to walk his dogs after the first injury. He cannot train in the gym. He is anxious when using public transport...
Brandon would not have injured his right knee in May 2022 if his right knee were not injured on 13/11/2019. I consider the injury on 13/11/2019 is the main cause of his current condition…”
21.	In a supplementary report dated 21 June 2023, Dr Lee states (unedited):
“Brandon injured his right knee on 13/11/2019. He had meniscal repaired by Dr Rahme at the end of December 2019. He re-injured his right knee on or around 25/05/2022. He got up from a squatting position and the knee locked. His MRI scan showed horizontal tear at the posterior horn of medial meniscus with no chondral injury. In my original report, I opined he should benefit from another arthroscopy. Although the re-injury was on or around 25/05/2022, he would not have injured his knee again had he not have the previous injury on 13/11/2019. The injury on 13/11/2019 can be considered to be the substantial contributing factor to the current injury. It is reasonable and necessary and casually related to his work injury on 13 November 2019 to his right knee.”
Other evidence
22.	The balance of the documents in the ARD includes WorkCover Medical Certificates, Rehabilitation case notes including closure reports and treatment notes. None of this is contested by the respondent who subsidised the treatment and were actively involved in the applicant’s rehabilitation resulting in case closure. The balance of the documents do show that rehabilitation was successful in obtaining a clearance certificate for work with suggestions that the applicant work in a self-paced and careful fashion. 
Respondent’s evidence
23.	The respondent accepts it has not obtained any independent medical or factual evidence to challenge the opinions of the above medical practitioners.
Submissions by counsel
24.	In summary, the applicant submitted:
(a)	there is no dispute regards injury. The respondent had an opportunity to dispute injury but did not do so;
(b)	there is no medical evidence by the respondent to challenge whether the treatment is reasonable or necessary;
(c)	there is no evidence of ‘fresh injury’ and the medical evidence is consistent in that the applicant simply got up from a crouched position and his knee locked and the general medical consensus is that the locking would not have occurred had it not been for the original injury in November 2019, an injury that was accepted by the insurer;
(d)	to dispute injury, the respondent would have to have some evidence to contradict the medical opinions before the Commission;
(e)	when declining liability, the s 78 notice did not rely on medical evidence or factual evidence, no additional particulars were sought and it was simply based on the ‘determinative opinion’ of a case manager which is not a legal test;
(f)	the statement evidence of the applicant is unchallenged and is largely consistent with that reported by his medical practitioners;
(g)	the bulk of the evidence supports that the need for surgery is due to the injury in November 2019. I was referred to the decision of Roche DP in Murphy v Allity Management Services Pty Ltd[2] (Murphy) which is an authority for the position that whilst there can be multiple causes for treatment, compensation will be payable so long as the injury made a material contribution to the need for treatment, and
(h)	in conclusion, it was submitted that there was no evidence that whatever took place in 2022 has materially contributed to the need for surgery and so on balance, the opinions of Dr Rahme and Dr Lee should more than satisfy me that surgery is reasonably necessary as a result of the injury that occurred on 
13 November 2019. 
25.	In summary, the respondent submitted:
(a)	that there must have been a further injury/event in May 2022 which has materially contributed to the need for surgery because the applicant had no treatment or complaint since his claim was closed in mid 2020;
(b)	there is no evidence to show why the applicant failed to make ongoing complaints to his medical practitioners which is inconsistent with his claim of ongoing symptoms in his statement evidence;
(c)	the applicant’s statement evidence should be taken ‘with a grain of salt’ as there are many inconsistencies. Specifically he has denied any previous injuries which is direct contrast to the records of Bankstown Hospital which states ‘R knee locking and giving way for many years, no previous MRI or orthopaedic review’;
(d)	there is no dispute that the treatment proposed by Dr Rahme is reasonable and appropriate to treat the pathology evident and so it is unnecessary to slavishly troll through the principles of Diab v NRMA Ltd and Rose v Health Commission NSW;
(e)	that this is not a case where I have to decide between two conflicting medical opinions; rather I have to be mindful that the medical evidence has been infected by inaccurate history provided by the applicant. That is neither, Dr Rahme nor Dr Lee were provided with a ‘fair climate’ in which to provide their opinions. In this regard, I was asked to consider this factual scenario carefully with reference to Paric v John Holland (Constructions) Pty Limited; 
(f)	the hiatus of complaints cannot be ignored and nor can the activities undertaken by the applicant at the time of onset of the alleged symptoms in May 2022 which to date have not been confirmed, that is was he ‘kneeling’ or ‘crouching’ or ‘arising from the kneeling position’?;
(g)	the MRI findings should be contrasted and compared and if done so would reveal a retear, that is a fresh injury, and
(h)	the applicant is not credible. Whilst the misrepresentations range between ‘baby missteps’ such as nominating that he surgery at St George Private Hospital when he actually had surgery at Strathfield Private Hospital, to the ‘more significant misrepresentations’ that he has had no previous injuries, must result in a conclusion that his statements are to be given little weight. 
26.	In reply the applicant submitted;
(a)	the applicant’s evidence is uncontested either by way of competing medical or factual evidence submitted by the insurer, and
(b)	the applicant is credible, his statements have been consistent in that he returned to work following the original injury for financial and personal reasons but has continued to have ongoing symptoms. It cannot be inferred that his lack of complaint to medical practitioners between 2020 and 2022 meant that he was without symptoms. 
ASSESSMENT
27.	Section 60 of the 1987 Act requires employers to pay the cost of reasonably necessary medical treatment required as a result of an injury.
28.	Despite the submissions of the respondent, I accept that the applicant has had continuing symptoms in the right knee resulting in physical and social impairment. The statements by the applicant, I find, were consistent. Certainly, I agree with the respondent that there has been a ‘hiatus’ of complaints relating to the right knee for a period of two years until the ‘event’ in 2022 but the report of Dr Lee confirms gross wasting of the right quadriceps. Dr Lee assessed the applicant in early 2023 and whilst he does not explain the reason for the gross wasting, it is nonetheless present and presumably the result of the pathology in the knee.  Such gross wasting is unlikely to have occurred solely between 2022 until the time of 
Dr Lee’s assessment in an applicant that has continued to remain active albeit in a reduced fashion. Again, this is just an overview of the evidence before me and not a medical finding of fact, but it does support the applicant’s statement that he has had symptoms since his original arthroscopy and that such symptoms have prevented much of his previous social and recreational physical activity but did not prevent work activity. This would explain, to some extent the ‘gross wasting’ however, I found the report of Dr Lee to be unhelpful in the main, apart from his findings on examination.
29.	Further, Dr Lee muddies the waters. He refers to an ‘injury’ in 2022 when his supplementary opinion seems to suggest that it was a recurrence and not an aggravation. Again, his opinion is difficult to follow and overall, I prefer the report of Dr Rahme, the original treating orthopaedic surgeon.
30.	Dr Rahme, in his report dated 3 August 2023, could have assisted the parties by offering a medical opinion in plain English. His use of the term ‘propagation of the original medial meniscal tear’ is unhelpful and caused confusion. I understand the definition of propagation in medical terms means to reproduce. Reading the report as a whole, I understood the term to mean that the genesis of the current complaint was reproduced from the original injury.  Nothing turns on this criticism of the use of medical jargon. 
31.	Dr Rahme does offer comfort particularly in regard to the statements made by the respondent regarding a hiatus in symptoms and treatment, thereby putting my mind at ease regarding credibility. Dr Rahme continues by reporting the applicant returned to normal function including work but that ‘over the last two months unfortunately he has had increased pain and locking in the right knee [my emphasis].  I understand this to mean that the applicant had continued to experience underlying pain in the knee which had increased. This is consistent with the applicant’s statements of ongoing pain over the years despite a return to work and absence of treatment. 
32.	Counsel for the respondent, encouraged me to contrast the two MRI reports both prior to the original arthroscopy and the most recent report subsequent to symptoms arising in 2022.
I find that I cannot do so. This is because the initial MRI was undertaken on 
15 November 2019 at Bankstown Medical Imaging and reported on by Dr Ho. The subsequent MRI was recorded as being a multiplanar multisequence MRI (a more sensitive investigation) undertaken at Vision X-ray Group and reported on by Dr Muduadi. I have not disregarded the request by the respondent to compare the findings but in the simplest of terms, I cannot be said to be comparing apples with apples.  These are two different tests, assessed by two different radiologists and an attempt at comparison would result in likely error. I am however satisfied that Dr Rahme has assessed the MRI and determined that there has been a propagation of the original medial meniscus tear, that is, he does not refer to a retear or a new tear, rather a reproduction of symptoms from the original injury. 
33.	As alluded to above, on hearing the respondent’s submission, I was initially sceptical about the applicant’s credibility, particularly as he informed the Bankstown Hospital in 2019 that he had previous symptoms which is in direct contrast to his statements in which he reported ‘to the best of my recollection, I have no prior medical history relating to significant injury, illness or disability.’ However, I find that the applicant’s statements throughout this matter have been consistent, and his credibility turns on interpretation. I understood him to be saying that he had no prior injury, illness or disability. This does not mean that the applicant did not have symptoms; rather I understand his evidence to mean they did not arise from any previous injury, illness or disability. 
34.	Following on from this, I find that I must reject the respondent’s contention that the medical opinions of Dr Rahme and Dr Lee have not been grounded in a ‘fair climate’ (the case of Paric refers). Overall, the applicant has been consistent in his representations and history and I accept that the medical opinions have been arrived at with due consideration of the circumstances globally, particularly, Dr Rahme who has been involved in the applicant’s management from the time of the original injury.
35.	I also have to find that the respondent’s denial of liability was premature and suboptimal. Little care was taken to obtain a treating doctor’s report or further particulars from the applicant. The assessor simply formed a ‘determinative opinion’ discounting both the applicant’s claim about recurrence and the medical evidence as a whole. Certainly on global assessment, it could be claimed that such an assessment was justified given the paucity of evidence provided by the applicant at the time of his request for medical treatment (after all the applicant bears the onus), however, good case management would have prompted further enquiry and recognised that a ‘determinative opinion’ without medical or factual evidence to rebut the applicant’s claim was insufficient to deny a claim under s 60 of the 1987 Act, particularly when liability was never declined. 
FINDINGS AND CONCLUSION
36.	On the basis of the submissions and documentary evidence I find;
(a)	the applicant suffered injury to the right knee on 13 November 2019. The claim was accepted by the insurer and treatment expenses including arthroscopic repair and extensive rehabilitation were funded by the insurer until case closure in mid 2020;
(b)	whilst being able to return to his pre-injury duties, the applicant continued to experience symptoms of chronic knee pain, swelling, decreased range of motion, weakness, restricted ability to climb, squat, bend, crouch and kneel coupled with mental and social impairment, and
(c)	the applicant requires surgery to address pathology identified in the most recent MRI which has been assessed by the medical opinion as arising out of the original medial meniscal tear. 
37.	Overall, I am satisfied on assessment of the evidence before me, that the need for surgery does materially arise from the 13 November 2019 injury. I am not persuaded that the need for surgery has arisen out of any event in May 2022. The evidence is consistent and I have found after much consideration that the applicant is credible in that he has continued to suffer symptoms between 2019 and 2022 ultimately requiring treatment when his knee locked after a simple event of getting up from the crouched position without any new injury. I also accept the applicant’s evidence that he did not suffer a new injury. Again, I return to the respondent’s cogent submission that the hiatus in treatment and reported symptoms cannot be ignored; however, as discussed exhaustively in Murphy, this does not defeat the claim. Case law has established that a condition can have multiple causes. The work injury does not have to be the only, or even a substantial cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. I need only be satisfied that the treatment is reasonably necessary ‘as a result of’ the injury, that is, that the injury of 13 November 2019 materially contributed to the need for the surgery. 
For the reasons given above, I am satisfied this is the case. 
SUMMARY
38.	The applicant sustained injury to his right knee in the course of his employment with the respondent. 
39.	The applicant requires medical and related treatment as a consequence of the injury he has sustained to his right knee on 13 November 2019.  That injury has materially contributed to the need for current surgery. The surgery proposed is reasonably necessary to treat the claimed pathology. 
40.	I therefore order that pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s medical, hospital and related treatment expenses of, and incidental to, right knee surgery proposed by Dr Rahme.