CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Attard v Planet Motor Cycles Pty Ltd [2025] NSWPIC 39	
		
APPLICANT:	Lawrence Attard	
		
RESPONDENT:	Planet Motor Cycles Pty Ltd	
		
Member:	Cameron Burge	
		
DATE OF DECISION:	5 February 2025	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses; claim for cost of proposed right hip surgery; respondent alleges no work injury to affected body system and that the requirement for medically necessary surgery is not as a result of any injury; Held – the nature and conditions of the applicant’s employment as a plumber caused an injury in the nature of a disease process to his right hip; section 4(b)(i); the proposed surgery is reasonably necessary as a result of the applicant’s injury; the respondent is to pay the costs of and incidental to the proposed surgery.	
determinations made:	The Commission determines:
1.	The applicant suffered an injury to his right hip in the course of his employment with the respondent, to which his employment was the main contributing factor.
2.	For the purposes of these proceedings only, the deemed date of the applicant’s injury is agreed to be 8 November 2019. 
3.	The proposed right hip arthroplasty recommended by Dr Randhawa is reasonably necessary as a result of the applicant’s injury. 
4.	The respondent is to pay the costs of and incidental to the proposed surgery.
A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS
BACKGROUND
1.	Lawrence Attard (the applicant) requires a right hip arthroplasty. 
2.	The parties agree such surgery is a medical necessity, however, they disagree as to whether the applicant’s right hip condition is a work injury, and if so, whether that injury has brought about the need for the proposed surgery. 
3.	The applicant has been employed as a plumber with Planet Motor Cycles Pty Ltd (the respondent) since approximately 2005. There is no issue that employment required him to undertake repetitive and physically demanding tasks, which regularly placed significant pressure on his joints. 
4.	The respondent has, in the past, paid for medical treatment in relation to other body systems including the applicant’s back and knees. However, the respondent denies liability for any injury to the applicant’s right hip, and says the nature and conditions of the applicant’s employment was not the main contributing factor to any such injury. 
5.	Additionally, the respondent, while acknowledging the applicant’s hip condition and the objective need for the proposed surgery, denies the need for the proposed surgery is reasonably necessary as a result of the relevant employment. 
ISSUES FOR DETERMINATION
6.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant’s employment was the main contributing factor to the right hip condition, and 
(b)	if the answer to (a) above is in the affirmative, whether the proposed surgery is reasonably necessary as a result of the work injury.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
7.	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. 
8.	The parties attended a hearing by way of video conference on 29 January 2025. Mr Tanner instructed by Mr Rositano appeared for the applicant. Mr Stiles instructed by Ms Moylan appeared for the respondent. A representative of the respondent’s insurer was also in attendance at the hearing.
EVIDENCE
Documentary evidence
9.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (Application);
(b)	Reply and attachments, and 
(c)	respondent’s Application to Lodge Additional Documents (ALAD) dated 22 January 2025. 
Oral evidence
10.	There was no oral evidence called the hearing.
FINDINGS AND REASONS 
Whether the applicant suffered a work injury to his right hip.
11.	The applicant bears the onus of proving that his right hip condition is work-related. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said: 
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” (emphasis added) 
12.	In his statement, the applicant set out the nature of his duties with the respondent. That evidence was not challenged by the respondent, and I had no difficulty accepting that the applicant’s duties were both heavy and repetitive.
13.	The applicant described his duties as follows: 
“20. 	In the daily duties of my employment as a plumber, I was required to undertake tasks that exposed me to repetitive motions. 
21. 	Those tasks required me to crawl, crouch, kneel, squat, climb, pivot, turn, reach, cut, slice, screw and unscrew, carry, push, pull, and lift on a daily basis. 
22. 	I was exposed to physically demanding tasks which regularly placed significant pressure on my joints. The tasks were often repetitive and often uninvolved, heavy weights. 
23. 	Some of these tasks included, but were not limited to, installing, maintaining and repairing drain pipes, drains, gathering and metal roofing, mechanical services, and related equipment for water supply, gas, drainage, sewage, heating, cooling, and ventilation systems. 
24. 	During the earlier days of my employment, I was performing plumbing work on rooftops with Gault Gutters, there would be little to no scaffolding available. I recall working by the fascia and overhanging my body on the frame, with my ankle locked into the truss so that my body can overlook the fascia as I installed (for the gutter). To support my weight, I rested my knee on a 90 mm piece of timber. I was required to place my weight on this hard surface. This would occur quite often, where I would be doing so for a period of four hours a day, for the duration of my career. 
25.	I would lean my knees upon surfaces as I was installing pipework or repairing the plumbing in places such as underneath cupboards. 
26. 	I would lean my knees on other hard surfaces, such as on piles of concrete to instal plumbing.
27. 	I would spend the majority of the day on my knees. 
28. 	I would place strain on my back through tasks such as sewage work, carrying cement and shale, and digging trenches by hand. I would tend to carry heavy things.” 
14.	The applicant described experiencing bilateral hip pain which he attributes to the nature and conditions of his employment. He states that from approximately 2018 to 2022, his work capacity has fallen into his reduced ability to carry out the heavy work associated with his employment. 
15.	In relation to his hips specifically, the applicant noted he dug trenches and shifted soil manually with only a shovel, during the course of which he regularly twisted while excavating dirt from the trench into a pile.
16.	For the applicant, Mr Tanner noted the applicant had undergone bilateral knee replacements and lumbar spine treatment paid for by the respondent. He submitted the applicant’s constant exposure to awkward postures requiring bending, lifting and carrying under load as well as twisting provides a commonsense basis for finding his employment was the main contributing factor to the right hip injury. 
17.	Mr Tanner noted, and I accept, that the applicant’s evidence in relation to his duties is uncontested. As such, I accept that evidence as truthful.
18.	In his supplementary statement, the applicant gave evidence surrounding a motorcycle accident which took place on 4 November 2017. He stated:
“13.	On about 4 November 2017, I was riding my motorbike in Thredbo, NSW for a charity event.
14.	At this period, my injuries had not worsened to the extent that they are now, and I was still able to ride a motorbike. I still had significant pain as caused by my employment but took pain medication to manage this. 
15.	As I was travelling, I hit a gully and collided with the side of a mountain. I did not lose consciousness, but I had no recollection of the collision. 
16. 	I woke up on the ground and signalled for help with my hands in the air. Someone stopped and called an ambulance. 
17. 	I was then conveyed to Royal Canberra Hospital, where I stayed for about six weeks. 
18.	During my admission, I was diagnosed with a fracture to my pelvis. To treat my injured pelvis, I had surgery performed by Prof Paul Smith. The surgery was a successful. From my recollection, I had no other surgical intervention to my neck or hips. 
19. 	On or about 15 February 2018, I consulted Dr Robert Molnar, orthopaedic surgeon, who advised I was making a good recovery. Dr Molnar advised I needed to continue with further rehabilitation. During the consultation, Dr Molnar only treated me for my pelvic injury. 
20.	However, as far as any further injury of symptoms after the accident, the extent of it were dizziness and light headaches. I sought specialist treatment and was able to recover. …
25. 	My neck and hips were not treated after leaving hospital. 
26.	After the accident, I was able to ride my motorcycle again. 
27. 	I went back to work following my recovery. Besides the occasional dizziness and light headedness when attempting to, later, there were no further issues. 
28.	I continued to perform more repetitive and physically demanding tasks which was regularly part of my employment as a plumber
29. 	However, the pain to my neck, back, left elbow, hips and knees gradually worsened when I performed the tasks in the course of my employment as a plumber. 
30. 	As the symptoms gradually worsened in my back, neck, left elbow, hips and knees, I have only ridden a few more times with the motorbike. I have difficulty now, particularly if I attempt to ride for a distance because I would regularly have to stretch out my left arm, since I experienced pain”. 
19.	The respondent relied on the opinion of Dr Breit, independent medical examiner (IME) who did not accept the applicant’s work-related duties were causative of his hip problems. Dr Breit attributed the applicant’s issues with his hips to both the motorbike accident in 2017 and to a history of water skiing. 
20.	Dr Breit placed some store in the applicant water skiing over many years, an activity in which he described the applicant as a “keen participant”. However, the applicant’s supplementary statement, which is uncontested, discloses he has only water skied for approximately six hours in his life.
21.	The applicant relied on the report of IME, Dr Gehr, who indicated the applicant’s employment was the main contributing factor to the hip injury at issue. Dr Gehr noted the radiological material diagnosed osteoarthritis of the right hip with decreased range of motion. Dr Gehr, as with Dr Breit, took an accurate history of the applicant’s duties, however, it is fair to say Dr Gehr’s history was more exhaustive. Both doctors take no issue with the fact the applicant plainly undertook heavy and repetitive duties. 
22.	Dr Gehr’s diagnosis of the applicant’s work-related right hip condition is in the nature of an aggravation of osteoarthritis. He states the applicant’s employment was the main contributing factor to that aggravation, which, however, he says the underlying condition was caused by the applicant’s motorbike accident. As such, Dr Gehr’s diagnosis is that the injuries in the nature of an aggravation of a disease process and falls within the provisions of s 4(b)(ii) of the Workers’ Compensation Act 1987 (the 1987 Act).
23.	However, the applicant’s treating practitioners indicate his employment was in fact the cause of the underlying condition in his right hip, rather than the cause of an aggravation to it. Dr Kinzel, treating orthopaedic surgeon, noted in a report to the applicant’s solicitors dated 17 February 2020 that the applicant’s work demands him to constantly load his elbows and knees, to repetitively lift heavy overhead and often out of squatting position. The report of Dr Kinzel primarily deals with other body systems, over, as Mr Tanner noted, the mechanisms described by Dr Kinzel plainly implicate the applicant’s hips as being repetitively under strain in the course of his employment. 
24.	The applicant’s general practitioner (GP), Dr Nasr, provided a substantial report. In relation to the applicant’s condition generally, Dr Nasr noted:
“3. 	Mr Attard’s employment has undeniably aggravated, accelerated, exacerbated and/or deteriorated his injuries, which include his left elbow, both knees, his cervical spine, his lumbar spine and his bilateral hip injuries. The nature of his work would be consistent with this. The inherent duties of his occupation, which are repetitive and loadbearing, would significantly impact on those injuries. There is an obvious and direct correlation between his work and his injuries and the progression of such injuries. 
4.	Mr Attard’s current incapacity for employment is the culmination of years of repetitive strain and heavy loading on his joints while performing the inherent duties of his occupation. He had these injuries well before his motorcycle accident. His injuries predate his accident and as such, cannot and should not be attributed to his accident. Furthermore, he had surgery after his accident which primarily affected his pelvis. He recovered from his accident and was able to return to work. It was the resumption of his work which caused his injuries to progress, worsen and deteriorate. It is his ongoing exposure to tasks at work which is causing ongoing issues with his injuries. There is ample documentation in his file of the existence of these injuries well before the motorcycle accident. 
5.	Mr Attard was participating in a charity ride event on 4 November 2017 when he had his motorcycle accident. He was travelling at approximately 60 kph before colliding with a tree. He suffered injuries to his chest and pelvis. 
6. 	He was noted to have pelvic fractures and diastasis of the symphysis pubis, SYMPHYSAS pubis. He required surgery to place screws in his pelvis and have an external fixating device secured to these points around his pelvic bones to hold them in place. This was left on for six weeks during which time he remained on bed rest. 
7.	During the six-week period, he suffered paralytic ileus, in which his bowel stopped working. This recovered with conservative treatment. He also suffered a deep vein thrombosis (DVT) which dislodged and caused pulmonary embolisms (PE). The DVT and blood clots in the lungs were treated with blood thinners which needed to be continued for six months.
8.	Mr Attard had his external fixation device removed on 20 December 2017. He was discharged home on 22 December 2017. 
9.	Mr Attard was followed up by an orthopaedic surgeon in February 2018. Dr Robert Molnar reviewed Mr Attard’s recent scans and felt his pelvis was in an excellent position. He cleared Mr Attard to gradually return to normal duties including work. He advised that Mr Attard should see a physiotherapist then be guided gradually back to pre-accident duties and work.
10.	So Mr Attard was considered to have made a full recovery from his motorcycle accident and was able to return to work. It is also worth noting that Mr Attard’s complaints from the motorcycle accident were mainly related to his pelvic injuries. His neck, back, elbow and knees were not considered through his admission and discharge from hospital.
11.	Mr Attard’s current injuries were work-related injuries which are unrelated to his motorcycle accident. They were present well before his accident and continued to progress as a result of his ongoing work”.
25.	Dr Randhawa, treating surgeon also provided a report dated 10 August 2021. He had an accurate history that the applicant’s work duties, together with the motorcycle accident in 2017. Dr Randhawa noted treatment for the motorcycle accident involved fractures of the posterior pelvic ring and injury to the pubic symphysis. Pointedly, Dr Randhawa noted, “Lawrence’s hip joints were not involved in the injury”. 
26.	Dr Randhawa’s examination of the applicant revealed the following:
“On examination, Lawrence is in obvious pain and walks with a very stiff bilateral hip gait. His right hip is very irritable with minimal internal rotation. He is in obvious discomfort when trying to move this joint passively. His left hip also has some restriction and irritability, but to a lesser extent. There are no neurological signs to either leg. 
I discussed with Lawrence that his prolonged heavy work duties have also taken a toll on his hip joints. His right hip has reached the stage where he requires total hip replacement surgery. This letter can act as a request for his WorkCover insurer to approve the surgery. I hope that by undertaking this, he will have improvement in his left hip, as he will not favour that side to protect the right side”.
27.	In a further report dated 8 June 2023, GP Dr Nasr again referred to the motorbike accident and noted: 
“There was no direct injury to his hip joint proper during the accident. Furthermore, the current condition of his hips, particularly the right hip, is a consequence of significant wear and tear over a period of years of weight bearing and loading. This is in keeping with the line of work Mr Attard has engaged in for the majority of his adult life. It would be very ambitious to relate this to a hobby such as water skiing, or an isolated incident such as the motor vehicle accident in 2017”. 
28.	Dr Randhawa was requested by the applicant’s solicitors to provide an opinion on the views of Dr Breit, namely that the applicant’s supposed history of water skiing together with the motorbike accident were in fact the causes of the right hip injury. Dr Randhawa stated:
“4. 	There is no doubt that Mr Attard’s employment with Planet Motor Cycles has been a major contributing factor to his bilateral hip joint degeneration. I completely disagree with Dr Robert Breit’s opinion that his motorbike accident of 2017 is the cause for his hip joint degeneration. It is evident from the notes from the Canberra Hospital that this accident only caused injuries to his sacroiliac joint and his pubic symphysis. It did not involve his hip joints. I also disagree with Dr Breit’s opinion that water skiing was a contributing factor to his hip joint degeneration. Water skiing is an activity which he has only participated in six hours in total in his whole life. Also, he does not report any injury to his hips during those six hours of water skiing. If Dr Breit’s opinion about this is taken with any ounce of seriousness, that means that no patient having degeneration of their joints can partake in any sporting activity or gym training in their whole life. 
5.	It is my opinion that his bilateral hip joint degeneration is largely due to the cause of his employment and is the main contributing factor.
6.	Mr Attard, in his occupation as a plumber, was required to undertake heavy labour tasks since the age of 26 years old. For most of his career, he had to dig deep trenches and move large amounts of soil without the aid of machinery. 
7.	His duties also involved prolonged squatting and having his hips in deep flexion for most of his duties. He was also required to lift heavy weights. Mr Attard has sustained osteoarthritis to both his knees, which has required total knee replacement surgery. This was approved by WorkCover. In the same regard, his hips have also suffered osteoarthritis from his occupational tasks”. 
29.	In my view, the opinions of Dr Randhawa, combined as they are with GP Dr Nasr and tangentially the views of Dr Kinzel, comfortably satisfy me on the balance of probabilities that the applicant’s employment was the main contributing factor to the onset of his right hip condition.
30.	Although the applicant’s own IME, Dr Gehr, indicates the injuries and the nature of an aggravation to pathology brought about by the motorcycle accident, the ponderance of the medical evidence does not support this conclusion. Rather, the preponderance of the treating material in particular establishes, in my view, that the applicant’s injury itself was in the nature of a disease process was brought about by his employment. That is, the applicant’s employment was the main contributing factor to the onset of the disease injury and satisfies the requirements of s 4(b)(i) of the 1987 Act, rather than an aggravation to an underlying condition pursuant to s 4(b)(ii).
31.	I reject Dr Breit’s views, noting the applicant’s uncontested evidence is that he only carried out approximately six hours of water skiing in his life, and also noting the treating material from the Canberra Hospital together with the applicant’s general practitioner and treating surgeon establishes the applicant’s hips were not involved in the motorcycle accident in 2017, the relevant damage form which was limited to the applicant’s pelvis.
32.	On balance, I find the applicant suffered an injury to his right hip in the course of his employment with the respondent, and that for the purposes of these proceedings, the deemed date of injury is agreed to be 8 November 2019. 
Whether the surgery is reasonably necessary as a result of the injury? 
33.	The “results from” principle of causation applies to s 60 claims, but confusion is sometimes created by the fact that s 60 liability also has a requirement that treatment be “reasonably necessary”. The principles of causation and “reasonably necessary” are different and must be kept distinct in s 60 claims
34.	The question that is relevant, and highlights the distinction between the “mere but for” and “common-sense” causation is: did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed? (See for example Jenkins v State of Tasmania [2012] TASSC 22.)
35.	In Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18, the worker, a taxi driver, was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which eventually resulted in the loss of four teeth, requiring treatment with a four-unit fixed bridge. At the time of this treatment, it was noted that Mr Schokman had pre-existing periodontitis unrelated to the assault. In 2012, Mr Schokman’s bridge broke. In examining Mr Schokman in relation to this issue, a further complication of peri-implantitis was identified, requiring treatment. The insurer denied liability for treatment related to the peri-implantitis and periodontitis, in part due to Mr Schokman’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.
36.	Roche DP confirmed the arbitrator’s decision finding that treatment was reasonably necessary as a result of the injury. After referring to the trite law in ACQ Pty Ltd v Cook (2009) 237 CLR 656 that a condition can have multiple causes, he stated on causation: 
“It follows that, even if it were accepted that the peri-implantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of commonsense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Roessler explained, the peri-implantitis is ‘only there because Mr Schokman has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants Mr Schokman would not have the peri-implantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of commonsense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need”. (at [54])
37.	On balance, I am satisfied the requirement for the surgery is brought about as a result of the injury at issue. Accepting as I have that the nature of the applicant’s work was heavy, and also rejecting as a causative factor either water skiing and the motorcycle accident, I prefer the views of the applicant’s treating surgeons, his IME Dr Gehr and his GP, that his employment, that the requirement for the surgery is brought about by his employment. 
38.	It is trite to say that for the applicant to satisfy the requirements of s 60 of the 1987 Act, his injury need only make a material contribution to the requirement for surgery. The injury need not be either a substantial contributing factor or the main contributing factor to the need for surgery. In my view, the evidence in this matter plainly discloses the work-related injury to the right hip has relevantly brought about the need for surgery. 
39.	Even were the applicant’s injury properly categorised as a s 4(b)(ii) aggravation, in my opinion the relevant causal link between the injury and the requirement for surgery would be established. It must be remembered that symptomology, not pathology, brings about the requirement for any treatment. Thus, a worker may have underlying pathology in a relevant body part which was asymptomatic before a work-related aggravation caused an onset of symptoms which necessitated treatment. In such circumstances, the requirement for the treatment is still brought about as result of the injury in the nature of aggravation to the preexisting but previously asymptomatic pathology.
40.	Consequently, I am of the view that the medical evidence in this matter is overwhelming. It establishes not only the presence of the right hip work injury, but also that the proposed surgery, which both parties agree is medically necessary, is reasonably necessary as a result of the applicant’s employment. 
SUMMARY
41.	For these reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.