District Court New South Wales Medium Neutral Citation: Ingram v Ready Workforce (A Division of Chandler Macleod) Pty Ltd & Ors [2019] NSWDC 958 Hearing dates: 14-15 November 2019 Date of orders: 22 November 2019 Decision date: 22 November 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: I order the first defendant to pay the plaintiff's expenses under s 60 for treatment of his right knee for the injury I have found. I make an award for the second defendant. I order the first defendant to pay the plaintiff's costs. Awards for second and third defendants. Catchwords: COAL MINERS WORKERS COMPENSATION – Section 60 claim for costs of a total knee replacement on the right-hand side. Legislation Cited: Workers Compensation Act 1987 (NSW) Cases Cited: Lyons v The Master Builders Association NSW Pty Ltd (2003) 25 NSWCCR 422 Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Bradley John Ingram First Defendant – Ready Workforce (A Division of Chandler Macleod) Pty Ltd Second Defendant – Mount Thorley Open Cut Pty Limited Third Defendant – Costain Coal Pty Ltd Representation: Plaintiff – Benson, D. First Defendant – Robison, L. Second and Third Defendants – McMahon, S. File Number(s): RJ00302/18 Publication restriction: Nil. Judgment 1. HIS HONOUR: The plaintiff, Bradley John Ingram, is a coal miner. He claims, pursuant to s 60 of the Workers Compensation Act 1987, the costs of a total knee replacement on the right-hand side. At the time that that surgery was carried out, the surgeon, Dr Jorgen Hellman, also carried out a left total knee replacement. The second defendant, by its insurer CMI, has paid the cost of the total left knee replacement but declines to pay the cost of the total right knee replacement. 2. The plaintiff brings these proceedings against three defendants, two former employers and his current employer. In accordance with the efficient practise adopted by those practising in the coal miners workers compensation list, the first employer in point of time is the third defendant, the second employer in point of time is the second defendant, and the last employer in point of time, the plaintiff's current employer, is the first defendant. On 14 November 2019 I amended the name of the first defendant to Ready Workforce (A Division of Chandler Macleod) Pty Ltd. 3. The statement of claim was also amended to show that the insurer of that employer was in fact Insurance and Care NSW trading as iCare. The effective dispute is between the second defendant and the first defendant as to who, if either, pay for the cost of the total right knee replacement. 4. The plaintiff was born in 1963. He is currently 56 years old. His wife is dependent upon him for support. He completed year 10 at Singleton High School in 1978. He then worked in Singleton for a Holden dealership for about one year, and then obtained work with the third defendant as an apprentice plant mechanic. 5. Whilst serving that apprenticeship the plaintiff attended Tighes Hill TAFE. He completed his apprenticeship in 1983. He worked on for a short while with the third defendant as a plant mechanic, but left the employment of the third defendant some time in 1984. He left the third defendant's employment to take up a better offer working at the Mount Thorley Open Cut Mine where he worked as a fitter and welder maintaining the draglines. The plaintiff could not tell me of any problem with either of his knees whilst working for the third defendant. 6. As the case has been presented, the first mention of any knee problem was in 1985 by which time the plaintiff was working for the second defendant. There is not a scintilla of evidence to attribute any liability to the third defendant. In those circumstances I make an award for the third defendant. 7. The plaintiff, through his counsel's chronology, admits to having some problems with his left knee as a school boy. According to the chronology he attended the Singleton District Hospital in 1972 with a left knee problem following upon playing football. That appears to have been on 21 February 1972. 8. There was an attendance upon the Singleton District Hospital on 21 September 1974, although that, according to the chronology, was not related to football. However, the plaintiff could not recall any such problem. He told me, as I have said, of no problem whilst working with the third defendant, Costain Mining Pty Ltd. At Mount Thorley Open Cut Mine the plaintiff performed shift work, but mainly day shifts. He also worked overtime whenever it was offered to him as he had a family and a mortgage to support. He told me that he first noticed a problem with his left knee on 15 September 1985 in a motor vehicle accident on the old New England Highway. However, that is not alleged to have been work related. 9. The statement of claim was amended after evidence was adduced by the first defendant. Putting the original pleading with the amended pleading, the allegations made in the statement of claim are these: "In or about the 1980s during the course of his employment at the Mount Thorley Open Cut Mine the plaintiff suffered injury to his right knee. In or about January and September 1985 and on 24 March 1994 the plaintiff sustained contusive injuries to the right knee. On or about 21 July 1994 the plaintiff sustained injury to the right knee whilst stepping down off 854 rubber tyred dozer. On or about 28 April 1998 during the course of his employment at the Mount Thorley Open Cut Mine the plaintiff was unloading equipment off the back of a tabletop truck when he suffered injury to his left knee. On 20 July 1999 the plaintiff sustained contusive injuries firstly when falling onto the edge of a hoist and secondly in the same incident being struck just under the right knee by a recoiling wire rope. As a result of the injury to the left knee, the plaintiff sustained such consequential injury to the right knee. During the plaintiff's employment with the defendants he has been exposed to: (a) regular whole body jarring and vibrations as a result of operating various plant equipment over four shifts over rough roads and dumps; (b) regularly climbing over and descending stairs; (c) regularly lifting, bending, constant kneeling, lifting various weights, traversing uneven ground. The work activities referred to above have caused, aggravated, exacerbated and/or accelerated his injuries and conditions." 1. The plaintiff could not remember any injury to his right knee whilst working for Mount Thorley Open Cut Mine. The plaintiff ceased working at the Mount Thorley Open Cut Mine in July 1999 when he accepted a retrenchment package. That history can be found in a report of Dr Posel of 23 June 2000. 2. I have mentioned the motor vehicle accident of 15 September 1985. According to the chronology there was an X-ray of the left knee performed on the following day, but a report of it has not been put into evidence. According to the chronology there was an X-ray of the right knee performed on 23 July 1993. If there is a report of that X-ray it has not been put into evidence. The plaintiff could not recall undergoing that X-ray. 3. Exhibit 3 is a file maintained by Coal Mines Insurance concerning injury to the plaintiff's right knee whilst he was employed at the Mount Thorley Open Cut Mine on 20 July 1994. On 20 July 1994, the plaintiff was climbing off an 854 rubber tyred dozer when his foot slipped off the ladder rung and the ladder swung back hitting the plaintiff on the "inside" of his right knee. I assume by that it is meant the medial aspect of his right knee. The plaintiff described the type of injury as a "knock to the right-hand knee, aggravation of previous injury". Despite the fact that he said that this was the aggravation of a previous injury, he said that the right knee was normal before the event on 21 July 1994. It is clear from the plaintiff's own claim for compensation, and the employer's report of injury form, that the plaintiff lost no time from work. He attended at the first aid post and was given R.I.C.E., that is, in essence the application of an ice pack and rest. According to the documentation before me the plaintiff returned to work after attending at the first aid post. 4. The file contains a certificate of Dr Denis Bergin of the Burdekin Park Medical Centre at Singleton. Dr Bergin certified that he examined the plaintiff on 25 July 1994, and diagnosed an exacerbation of chronic right chondromalacia patellae. He said that there was no absence from work, but he prescribed for the plaintiff an X-ray as well as Feldene and physiotherapy. An X-ray was performed at the Singleton District Hospital and is reported thus: "The intercondylar spines appear slightly prominent and blunted. The appearances raise the possibility of minor degenerative change. No other abnormality can be seen in bony structure, alignment, joint space width or soft tissues. There is no joint effusion." 1. The top part of the certificate issued by Dr Bergin contains this "Cause of Injury": "Initially January and September 1985 contused at work; 24 March 1994 bumped knee on machine." That part of the certificate surprisingly does not record the event of 21 July 1994. The file does contain a letter from the operator of the Mount Thorley Open Cut Mine telling Coal Mines Insurance that the company had no record of any injury reported by the plaintiff on 24 March 1994. There is no record of any event in January or September 1994, except the plaintiff told me of an injury in a motor vehicle accident to his left knee on 15 September 1985 which was not work related. 1. An inference can be drawn that if the plaintiff had "chronic right chondromalacia patellae" that it stemmed from the motor vehicle accident of 15 September 1985 which was not compensable. The plaintiff needed to explain to CMI what was thought to be a discrepancy. In a letter of 22 December 1994 the plaintiff said this: "While working day shift on Thursday 21 July 1994, I injured my right knee while stepping down off machine 854 rubber tyred dozer. During the weekend and after working the Monday night dog watch shift, my knee became more painful, and swollen, so I sought the advice of Dr D Bergin on Tuesday 26 July 1994." The event of 21 July 1994 can best be described as a blow to medial aspect of the right knee. It is not suggested that this is a twisting injury or an overloading injury or some flexion or extension injury, merely a blow to the inside of the knee that is unlikely to cause any pathology other than some local soft tissue bruising. It appears that that is what the plaintiff was treated for at the first aid post. 1. It is clear from what the plaintiff said in his letter of 22 December 1994 that the pain which caused the need to see Dr Bergin came on after working the dog watch shift on Monday 25 July 1994. It may be that the type of work that the plaintiff was doing was more the cause of the pain than the blunt blow to the inside of his knee. It is significant, however, that the X-ray performed on 27 July 1994 suggests that by that time there were appearances suggestive of degenerative changes in the knee. 2. If a frank injury causes pathology which triggers off degenerative changes one would not expect the degenerative changes to show up until at least six months after the event. For example, if there is damage to an intra-articular surface of a joint, one would not expect to see any reactive bony changes on X-ray until approximately six months later. The degenerative changes shown on the X-ray of 27 July 1994 cannot be attributed to the event of 21 July 1994, nor to the work the plaintiff was doing on Monday 25 July 1994. They must have existed for at least six months before that time. 3. There is no dispute that on 28 April 1998 the plaintiff sustained what appeared to have been a significant injury to his left knee whilst working at the Mount Thorley Open Cut Mine. The description given by the plaintiff in his contemporaneous claim form which is Exhibit B is this: "I was measuring parts on a pallet aboard 1019 tabletop truck. I stepped backwards off [the] pallet and my left leg went through a hole in the wooden tabletop of the truck." 1. The plaintiff said that his left knee was normal prior to this time. The plaintiff stopped work as a result of this event. He saw Dr Peter Lee, a general practitioner, and was referred for an X-ray which was carried out at Singleton Hospital on that day. That reports the left knee as not suffering from any fracture or abnormality. However, it has been noted that in addition to the problem with his left knee the plaintiff also sustained problems with his left ankle and in his left hand. The X-ray was not merely of the left knee but also of the left ankle, the left thumb and the left wrist. There was reported to be a virtually undisplaced crack fracture of the proximal shaft of the fourth metacarpal. 2. The plaintiff was eventually sent to see Dr Daniel Posel, an orthopaedic surgeon, by Dr Au of the Raworth Cottage Medical Practice at Singleton. Dr Posel's history is this: "Brad documented [an] injury to his left knee at work on 28 April 1998. He stepped back off a pallet on the back of a truck and then fell between the wooden boards. He fell onto a mudguard bracket. This deflected his left foot between the mudguard and a leaf spring. In the fall he twisted his left knee. He fell onto his left side and was fortunately caught by a colleague. He had sustained generalised bruising. He was able to walk subsequently, albeit with a limp in the left leg. He did sustain a laceration of the left leg and was off work for a period of a week and on light duties for a period of five-six weeks with associated physiotherapy. His knee developed swelling soon after the injury. At present he complains of an ongoing ache in his knee, especially after work or tennis. He has occasional giving way in his knee, most recently six weeks ago. He has noticed an occasional click and clunk in his knee as well as the regular ache. His knee pain is worse walking down steps. His pain doesn't wake him at night. He has intermittent swelling in the knee joint and this is associated with a limp." 1. On examination the plaintiff localised the pain to the medial compartment of his left knee. Dr Posel thought that the patellofemoral joint was satisfactory. Dr Posel went on to raise differential diagnoses of a small tear of the medial meniscus or a chondral defect on the medial femoral condyle. He performed arthroscopy at the Warners Bay Private Hospital on 2 November 1998. In a report of that date Dr Posel said this: "Arthroscopy of the knee revealed a stellate chondral defect in the mid-facet of the patellae, probably the size of a five cent piece. This was debrided with the arthroscopic shaver and punch forceps. There was no corresponding defect in the femoral trochlea [sic] groove. The medial compartment revealed a small chondral defect on the posterior femoral condyle and this was similarly debrided. The posterior horn medial meniscus was thoroughly probed and found to be intact. There was minor irregularity of the anterior horn of the medial meniscus and this was similarly debrided with the arthroscopic shaver and punch forceps." 1. Dr Posel reviewed the plaintiff six weeks later on 18 December 1998. He noted the plaintiff had returned to his normal duties at the Mount Thorley Mine. In addition, the plaintiff had returned to playing touch football and tennis "without much knee discomfort". Dr Posel, in his report of 18 December 1998, noted that the plaintiff was aware that he could develop problems with his left knee in the future. 2. Shortly before he took the retrenchment package at the Mount Thorley Mine the plaintiff sustained a further injury to his right knee. This however was not an event that he could remember. The documents concerning it are exhibit 4. They record that on 20 July 1999: "While cutting steel bar at the end of a new hoist rope, the hoist rope flicked up, [and] I moved trying to avoid being hit by the hoist rope and fell on my right knee onto the edge of hoist rope sled and while feeding winch rope back into the winch reel, the rope coiled and flicked back striking me just under the right knee." 1. This led to no time off work. This did not require any attendance at the first aid post. There is nothing in the CMI file, Exhibit 4, other than the claim for compensation and the employer's report at injury form. It appears the plaintiff did not need to see any doctor and clearly did not see the first aid attendant. 2. One would have thought that falling onto a sled and being flicked by a rope would cause blunt injuries and not injuries of a twisting nature or an overloading nature or flexion or extension injuries which are the likely cause of any damage to the knee joint itself. These appear to be merely soft tissue injuries as the employer's report of injury form records. That event cannot, in my view have anything to do with the clear osteoarthritis of the plaintiff's right knee which led to the need for the total knee replacement. 3. After taking the retrenchment package from the Mount Thorley Mine in July 1994, the plaintiff obtained work as a casual bar attendant at the Singleton RSL. That was in August 1999. In October 1999 he found employment as a casual plant mechanic with Cox Construction Pty Ltd at Rutherford. That was not employment in the mining industry. 4. In April 2000 he obtained work as a maintenance fitter with P&H MinePro at the Bengalla Coal Mine. The plaintiff worked there for eight or nine months as a maintenance fitter on the drag line, similar work to that that he had performed at Mount Thorley. 5. On 23 June 2000 the plaintiff was seen by Dr Posel again on referral from Dr Au of the Raworth Cottage Medical Practice. After recording the plaintiff's taking the retrenchment package from the Mount Thorley Open Cut Mine, Dr Posel's report of 23 June 2000 continues thus: "He is now involved in contract work, he reports doing lots of work in a kneeling position. Brad is happy with his left knee function following arthroscopic debridement in November 1998. Brad now complains of increasing discomfort in his right knee. He can't remember any particular injury. He was playing touch football up until two months ago and then he tore his hamstring. He complains of a clunk and grabbing sensation in the right knee and occasionally the knee is very sore after a game of tennis. He reports intermittent giving way. The knee did lock up once at golf a few weeks ago. Brad noticed the knee swells up after the ninth hole. It can wake him at night. Brad in fact feels his right knee function is now worse than the left side was prior to its arthroscopy. Walking down steps is now uncomfortable." 1. One can see a number of stressors to the plaintiff's right knee recorded in that history: the first is the playing of touch football; the second is the playing of tennis; the third is the playing of golf; and the fourth is kneeling down at work often. The plaintiff told me of a further stressor, and that was favouring his left knee because it had been injured and surgically repaired and thus the plaintiff tended to throw more stress or weight onto his right knee. I am prepared to accept the plaintiff in that regard. 2. However, it appears that the real problem was the fall problems mentioned by Dr Posel. On examination Dr Posel noted patellofemoral crepitus. He thought that the "patellar tracking was pretty good". That observation must be recorded because of a subsequent opinion offered by Dr Myles Coolican. Dr Posel thought that most of the pain was localised in the medial compartment. McMurray's test was positive with both a clunk and pain. The ligaments were stable. Recent X-rays which the chronology tells me were performed on 19 June 2000 were said by Dr Posel to show mild medial compartment wear, another way of describing degenerative change in the medial compartment or another way of describing that is osteoarthritis. 3. On 28 June 2000 Dr Posel performed arthroscopic debridement of the right knee at the Toronto Private Hospital. Arthroscopy was said to reveal marked chondral fibrillation and fragmentation of the back of the patella involving the mid and lateral facets. In the medial compartment of the knee there was marked chondral fragmentation involving almost the entire weight-bearing surface of the medial femoral condyle. There were large loose flakes of cartilage which were removed. Fortunately, the cartilage loss did not extend down to "bare bone". 4. In his report following the surgery Dr Posel expressed this view: "Ultimately however the prognosis for his knee is not good, given the extent of articular cartilage defect in the medial femoral condyle and the back of the patella he will require further surgery to his knee in the years to come." That could be described shortly as a guarded prognosis. Likewise, the prognosis following the left knee arthroscopy performed on 2 November 1998 according to Dr Posel's report of 18 December 1998, could also be described as guarded. In other words in each knee there were degenerative conditions advancing of their own momentum, and which ultimately lead to further surgery and ultimately to total knee replacement. 1. That is what has come to pass. Six weeks after the right knee arthroscopy Dr Posel reviewed the plaintiff. One will recall that the plaintiff was happy with his right knee function. There was no further locking of the knee joint, but the plaintiff still had discomfort when kneeling on his right knee. The plaintiff was keen to return to working on a dragline. Dr Posel went on to note that the plaintiff had found a new position at the Bengalla Coal Mine in Muswellbrook and Dr Posel thought the plaintiff could cope with the new position that he had found at the Bengalla Mine. 2. In January 2001 the plaintiff found a new position working for a labour hire contractor, UMSS Pty Ltd.. He was employed by that company to work at the Mount Owen Mine as a plant mechanic. However, the plaintiff eventually developed problems again with his left knee. He was again referred by Dr Au to Dr Posel who saw him on 4 December 2003. Dr Posel recorded the plaintiff had "recurrent left knee discomfort". He noted the plaintiff was working for UMSS at the Mount Owen Mine as a plant mechanic. After recalling that the plaintiff had an arthroscopy of his left knee in 1998, Dr Posel's report continues thus: "Brad reports his knee came good but he has had discomfort on and off for the past two and a half years, deteriorating recently, especially after a twelve and a half hour shift. He has had no recent left knee injury. He reports his knee swells and aches. He has discomfort medially and in the retropatellar region. Brad reports discomfort walking up and down steps. His knee feels unstable at times. When wearing a knee guard at tennis the situation improves. His worst activity is that of kneeling. Brad has also noticed an increase in his knee clicking and cracking. Brad has recently lost some weight, he is now 100 kilograms, previously being 108 kilograms." 1. On examination Dr Posel found quite marked patellofemoral crepitus on the left, but less so in the right knee. X-rays of the left knee revealed early patellofemoral wear with an accessory ossicle relating to the lateral facet of the patella. There is also evidence of early degenerative change in the tibiofemoral joint, with pointing of the tibial spines and the like. The ossicle described by Dr Posel can be called an osteophyte. Dr Posel proceeded to further arthroscopic debridement of the plaintiff's left knee at the East Maitland Private Hospital on 18 December 2003. These were the doctor's findings on operation: "Arthroscopy of the knee revealed marked wear on the back of the patella on both medial and lateral facets, mainly lateral. There were large areas of chondral……….. which were debrided with the arthroscopic shaver down to subchondral bone. There was also an osteophyte on the lateral femoral condyle at the edge of the patella articulation. There was quite a marked synovitis in the lateral gutter which was debrided. The femoral trochlea [sic] grove itself isn't too bad. The medial compartment, surprisingly, also revealed fragmentation of the articular cartilage on the weight-bearing area over an area of 1.5 square centimetres, this was debrided with the arthroscopic shaver. The medial tibial plateau was fine. The medial meniscus was fine, the anterior cruciate ligament was fine. The lateral compartment was in good condition." 1. Dr Posel went on to provide this prognosis: "Unfortunately the overall prognosis for Brad's left knee isn't too good, what with grade IV chondral damage on the back of the patella and grade III degenerative change to the medial femoral condyle. Brad needs to monitor his weight and if possible limit his kneeling activities." 1. There were some complications following surgery. In a report of 16 January 2004 Dr Posel reports this: "Brad has had somewhat of an eventful time post surgery. Three days following his knee arthroscopy he was stung by a bee (he is allergic to such). He developed large welts in the right axilla (site of the bite) requiring Phenergan, et cetera. The following week he was swimming and reports his knee swelling subsiding and the knee felt no good. Since early January 2004 he has had a recount of knee swelling. On 4 January 2004 he reports his temperature being 40C. He was reviewed at Singleton Hospital and placed on oral Flucloxacillin. An Aspirate of the fluid performed on 5 January 2004 reveals a few white cells but no organisms." In short there was a post-surgical infection. The doctor commenced that report by saying that the plaintiff had recently experienced "right knee swelling" but that may be a mistake as the doctor's report refers only to one knee and appears to be the left knee. 1. Dr Posel reviewed the plaintiff on 17 February 2004, two months following the second left knee arthroscopy and the plaintiff was happy with his left knee function, as was Dr Posel. It has been noted that that left knee surgery was paid for by CMI, the insurer of the second defendant. I am favoured with reports concerning a rupture to the plaintiff's right tendo Achilles. However, those reports have nothing to do with the current proceedings. 2. In February 2004 the plaintiff stopped working for UMSS at the Mount Owen Mine but commenced working for the same organisation at the Liddell Open Cut Mine. He stopped working at Liddell in October 2004 to take up a better offer of employment at the Drayton Open Cut Mine as a casual fitter and plant operator. Initially the plaintiff was employed at the Drayton Open Cut Mine by UMSS Pty Ltd but his employment was then taken over by Tesa Mining Pty Ltd and then by Workpac Pty Ltd. However, the plaintiff continued to work for each of those employers at the Mount Drayton Mine. He worked as a fitter in the workshop and a plant operator driving either a Caterpillar truck or a service truck. 3. In 2010 the plaintiff again experienced some problems in his right knee. X-ray performed on 3 February 2010 is reported as showing mild to moderate tricompartmental osteoarthrosis of the right knee. The medial compartment of the three compartments was more severely affected than the other two. However, there was no joint effusion or soft tissue abnormality. 4. The plaintiff saw Dr Posel again on 5 March 2010. Dr Posel recorded the plaintiff was working 12 and a half hour shifts as a plant operator. That was at the Drayton Mine. He was still playing golf twice a week, but had given up playing tennis. Despite what the radiologist said Dr Posel found a small effusion in the right knee. Dr Posel suspected the plaintiff had further chondral flap tearing in the medial femoral condyle or a degenerative tear of the medial meniscus. He recommended a further arthroscopy. 5. That was carried out at the East Maitland Private Hospital on 10 May 2010. According to Dr Posel the arthroscopy revealed diffuse wear on the patellar surface with areas of subchondral bone exposed. The wear was not localised to the lateral facet to suggest any abnormal patellar tracking. That finding again should be noted because of a subsequent opinion offered by Dr Myles Coolican. The doctor found mild wear of the corresponding femoral trochlear groove. He found no loose flap of articular cartilage on the patella. In the medial compartment he found a further degenerative tear of the posterior horn of the medial meniscus which was excised. Dr Posel thought the medial tibial plateau was satisfactory.Dr Posel finished his report following the operation thus: "Overall, as mentioned this knee isn't too bad and it should last some years yet." It did, because the total knee replacements were not performed until 14 August 2018, some eight years later. 1. The surgery that had been practised to the plaintiff's knee had not been paid for by any employer. The plaintiff himself was bearing the cost of the treatment of his right knee. In April 2011, the plaintiff stopped working at the Drayton Mine. The plaintiff said to me that his knees were getting bad and he was looking for a permanent job. In May 2011 he started working at the Vale Integra Open Cut Mine as a mining technician. He was in fact working as a plant operator. This was a permanent job, but it lasted only two months because in July 2011 the pit shut down. That is unsurprising as the Vale Integra Open Cut Mine was the old Camberwell Mine that had shut much earlier. 2. On 19 November 2014 the plaintiff applied for work with the first defendant as a truck operator. To obtain that employment he had to pass a coal services health pre-employment medical assessment. That was carried out on 24 November 2014. The plaintiff successfully completed that medical assessment. 3. For the first defendant, the plaintiff worked as a truck operator. He drove either Caterpillar trucks or Liebherr trucks. The Liebherr trucks were much smoother to operate than the Caterpillar trucks; they were electrically driven. The plaintiff was working between 47 and 48 hours per week. This was full-time work on a permanent roster. On 20 May 2015, some six months after starting this work, the plaintiff was referred to Dr Jorgen Hellman by Dr William Debelak, a general practitioner at the Singleton Medical Centre. The referral note gives this history: "…Bradley, was suffering from increasing bilateral left greater than right knee pains since a work related injury in 1998. He has only claimed on is left knee. The pain has worsened over the last six months. Dr Posel has cared for him in the past with arthroscopies and a lateral release." In a note to Coal Mines Insurance of 1 June 2015, Dr Debelak noted that the plaintiff had high uric acid levels. That may have contributed to his knee pain. Despite what Dr Debelak said at the time the plaintiff saw Dr Hellman on 15 July 2015 the pain was greater in the right knee than the left. Dr Hellman's report continues thus: "He gets significant anterior-medial knee pain in both knees. It can get very aggravated by going up and down ladders which he has to do at work to get into his truck. He gets night pain. He was getting significant pain playing golf and he had to use a cart. But he is now back walking the golf course." The rest of the history merely recites matters that I have recited and/or read and refers to the plaintiff's medical history. 1. Dr Hellman expressed the view that the plaintiff had significant patellofemoral crepitus and mild pain on loading the left patellofemoral joint. He was also tender over the right medial joint. According to Dr Hellman X-rays of each knee revealed advanced degenerative change of the patellofemoral lateral facets and degenerative change in the knee compartment of the right knee. Dr Hellman went on to say this: 1. "I have told Brad that he does have significant patellofemoral arthritis and he needs to limit his stairs and hills. He has been walking over the Singleton Bridge, up to 30 times to try and get fit and I have told him to limit that and get an exercise bike to work on regular smooth rhythmical non-weight bearing exercises. His knee pain will be aggravated by going up and down the ladder into his truck at work. He can continue with his Paracetamol and Mobic and keep his knees warm. I am happy for him to continue his work within his limits of pain. Eventually his knee pain will deteriorate to the point where it is limiting his quality of life and he could benefit from a knee replacement. This could occur over the next five to ten years. I believe the right knee has become degenerate due to genetic predisposition. It is possible the left knee is suffering post-traumatic arthritis." 1. From a history which I shall soon cite the doctor has an alternate view as to causation. In 2017, further X-rays of the plaintiff's knees were ordered by Dr Simon Marrable, a general practitioner. Again, the plaintiff was referred back by Dr Marrable to Dr Hellman and the plaintiff saw him again on 29 November 2017. It was then proposed the plaintiff undergo bilateral knee replacement. Dr Hellman's report of 29 November 2017 commences thus: "It has been two years since I last saw Brad. He has had no further injuries, but a gradual deterioration in his knee pain and function. He is still driving trucks in the mines and has to climb stairs to get into the cabin and finds this more and more difficult as time goes by…" As to causation Dr Hellman said this: "Brad's previous history for his knee injury has been outlined in the previous letter, which you should have. His left knee symptoms are almost certainly due to the original injury to the knee previously. This has just slowly deteriorated with time. The right knee has been aggravated by his left knee injury and increased usage. I do consider the workplace to the main precipitant requiring his bilateral knee replacement." 1. In other words, Dr Hellman was attributing the need for the total knee replacement on the left to the injury of 28 April 1998. The second defendant acknowledged that and has paid for the total knee replacement on the left-hand side. 2. As to the right knee Dr Hellman was now expressing the view that although the underlying condition might be "due to genetic predisposition" it had been aggravated by stress thrown on it because of the damage to the left knee. However, he went on to express the view that the "main precipitant" was the "workplace" by which I assume he means the type of work the plaintiff was doing. Eventually, Dr Hellman performed bilateral knee replacements at the Lingard Private Hospital on 14 June 2018. 3. On 18 June the plaintiff was transferred to the Maitland Private Hospital for rehabilitation after the knee surgery. The plaintiff was an inpatient at the Maitland Private Hospital for two weeks. The plaintiff was eventually certified fit to return to work on 17 September 2018. He did so. On the following day he went to the Singleton Physiotherapy Centre for a return-to-work assessment and passed that assessment. As I understand it, the plaintiff remains working as a plant operator for the first defendant. 4. In addition to the opinions provided by Dr Hellman, I have an opinion from Dr Myles Coolican who was retained by Coal Mines Insurance, insurer of the second defendant. Dr Coolican examined the plaintiff on 12 February 2018, that is, prior to the surgery being practised. In his report he says this: "Mr Ingram will require bilateral knee replacements at some time in the future. He has not yet exhausted non-operative treatment but he has tried a number of measure including working in a pool and on an exercise bike. He does need to lose weight and this will reduce the load on his knees and his symptoms. When he does come to bilateral knee replacements, it is my opinion the need for surgery on the right side is unrelated to any work injury. On the left side, Mr Ingram suffered a twisting injury to the knee which Dr Posel suspected may have caused the meniscal tear. However, there was no meniscal tear at the time of his arthroscopy in November 1998 but there was some wear involving the knee or condyle of a modest nature and there was more marked lateral patella wear. In my opinion, the wear that is present in Mr Ingram's knee is a result of longstanding bilateral lateral patellar maltracking and trochlear dysplasia of a mild nature and not related to his work injury. He does have small supratrochlear patellar spurs, shallowing of the proximal end of the trochlea and this is associated with progressive patellofemoral wear. While Mr Ingram also has osteoarthritis involving the kneel compartments of both his knees, the wear more involves the patellofemoral joints." 1. In the following paragraph of his report, Dr Coolican shows that he is working under a misapprehension. He believed the plaintiff had, prior to working for the first defendant, worked as an underground coalminer, but that is incorrect. As I understand, the plaintiff has never worked underground. He has worked either as a plant mechanic or a plant operator. In the paragraph after that, Dr Coolican says this: "Mr Ingram is suffering from bilateral osteoarthritis of the knees which is in part familial. It involves the medial compartment of both knees and also the patellofemoral joints. The patellofemoral wear is a consequence of longstanding trochlear dysplasia of a modest nature." One would be forgiven for thinking that the opinion of Dr Coolican was that the plaintiff's work and any work injury had nothing to do with the state of either of his knees. He puts it down to some genetic condition "in part familial" and to longstanding trochlear dysplasia involving maltracking of the patella presumably on each side. 1. I am also favoured with a report of Professor Y.A.E. Ghabrial which is Exhibit P. Dr Ghabrial expressed this view: "I am surprised that Coal Mines Insurance accepted liability for the left knee but not the right knee as the injury to the right knee occurred during his employment in the coal mine industry in the 1980s." That was based on a history of an injury to the right knee "some time in the 1980s". That is not a history that the plaintiff told me of nor is there any such documented history. I find Dr Ghabrial's opinion of no substance or utility. The evidence does disclose the plaintiff has seen, and correct me if I be wrong, Dr Roger Rowe for the first defendant. But Dr Rowe has not been called. His report has not been tendered, nor has his absence from the witness box or the absence of his report from the first defendant's tender been explained at all. 1. The first defendant referred me to my decision in Lyons v The Master Builders Association NSW Pty Ltd (2003) 25 NSWCCR 422 and submitted that some injury, perhaps the injuries established by the first defendant by the tender of Exhibits 3 and 4, the Coal Mines Insurance files with the injury of 21 July 1994 and 20 July 1999, caused the defect in the plaintiff's knee which went on to become osteoarthritic and led to the total knee replacement. I cannot find any frank injury which caused the onset of osteoarthritis. It would have to be one which damaged an intra-articular surface of the knee joint. Such injuries of their very nature are substantial and painful. The events of 21 July 1994 and 20 July 1999 do not have either of those qualities, as I have sought to explain. There may have been some problem with the right knee in the past as suggested by the top part of Dr Bergin's certificate of 25 July 1994 contained in Exhibit 3, but those injuries have not been proven. 2. Furthermore, since the plaintiff himself cannot remember them, they could hardly be of a significant nature such that damage to the intraarticular surface of the knee joint was caused. It is clear that, following upon the event of 28 April 1998, there was no problem seen in plain X-ray taken on 28 April 1998 and in Dr Posel's first report on 23 October 1998 he noted that X-rays of the knee were normal. In other words it seems likely that the event of 28 April 1998 was an event which did precipitate the osteoarthritis in the plaintiff's left knee. It involved a twisting injury and required a week off work and then light duties for four to six weeks and the need for physiotherapy, the development of a huge amount of swelling, as I have quoted from Dr Posel's report, and ongoing symptoms. That is the very sort of event that I was referring to in Lyons' case, an event that can set in train a degenerative condition such as osteoarthritis or chondromalacia patellae, the diagnosis involved in Lyon's case. 3. Here I am not persuaded that there was any major injury to the plaintiff's right knee in the 1980s or the 1990s, but clearly the plaintiff's right knee had commenced to degenerate some time prior to 27 July 1994 when X-rays were performed at the Singleton Hospital which suggested that degenerative changes were then present or starting. 4. What, therefore, led to the need for the plaintiff's right knee surgery? I cannot exclude some genetic predisposition, that is, some inherited or familial condition which predisposed the plaintiff to developing osteoarthritis in his right knee. Indeed, if there be such a condition, it would probably predispose the plaintiff to the development of osteoarthritis in his right knee, but of course, that was not found in plain X-rays taken in 1998, so it seems unlikely that the genetic/familial condition had much to do with the development of the plaintiff's left knee condition. It may be that the genesis of the plaintiff's right knee condition was in the motor vehicle accident of 15 September 1985, but that is not compensable. 5. However, another cause of degenerative condition is attrition. Attrition is wear and tear. On the plaintiff's evidence, wear and tear was placed on is right knee because when he had a problem with the left knee he favoured the left knee throwing greater weight and relying more on his right knee than on his left. Equally, however, when his right knee was problematic he probably threw more strain on his left knee after it had been surgically repaired on two occasions. 6. However, I cannot exclude the real possibility that the type of work the plaintiff did as a plant mechanic and as a plant operator in the coal mines contributed to the attrition, contributed to the wear and tear, either aggravated, accelerated or even merely exacerbated the condition of the plaintiff's right knee. For example, when the plaintiff first saw Dr Posel with a right knee condition he reported that his work at the Bengalla Mine required a lot of kneeling. Kneeling on an osteoarthritic knee causes the joint to bear the weight of the body somewhat more acutely than merely standing up. It bears the weight when flexed. 7. Furthermore, to kneel one has to bend the knee. To be kneeling one must genuflect. If that is repeated one can accept that that requires a great stress being thrown onto the right knee. In more recent times, the plaintiff told me of problems climbing up onto the trucks that he drives, that is, climbing up ladders and to leave the trucks he must climb down them. He also told me in his oral evidence, although it is not the subject of any medical evidence, that he must sit in the cabin of his truck for long periods in an uncomfortable confined chair with his knees flexed causing stiffness which he notices whenever he tries to stand up. Again, the ability to stand up and walk around can be important if one has a sore back, but is also important if one has sore knees. 8. I accept that the type of work the plaintiff has been doing for the first defendant has the ability, because of the requirement to climb and descend ladders and to sit with the knees flexed in the cabin of a truck for long periods of time, or tendency to aggravate, accelerate or to exacerbate an underlying osteoarthritic condition, whether it be caused constitutionally or whether it has been added to by throwing increased stress on the right knee because of a problem with the left knee. 9. In other words, there are a number of stressors which affect the right knee which are cumulative, and the most recent stressor is the type of work the plaintiff does for the first defendant requiring him to climb and descend ladders to get into and out of the trucks he drives and to sit in with his knees flexed whilst driving the trucks for lengthy shifts over 47 to 48 hours per week. In my view this is a case in which I must apply the disease provisions of the Act, that is the provisions of s 4(b)(ii): "The aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease". 1. That engages the provisions of s 16 of the Act, and the compensation is payable by the last employer who employed the worker in conditions to which the nature of the disease is due. Here, there must be an injury deemed to have occurred when the plaintiff became incapacitated. The incapacity was caused by the need to undergo surgery. I, therefore, find that the plaintiff sustained an injury in the course of his employment with the first defendant on the day he last worked for the first defendant prior to undergoing surgery to his right knee on 14 June 2018. The s 60 expenses claim must be payable in respect of that deemed injury. 2. As distinct from orders, does anyone want any further reasons? No. I have inquired of the solicitors for the parties if any further reasons for judgment are required, and I am told that none is so required. 3. The formal finding, that on the day the plaintiff last worked for the first defendant prior to undergoing surgery to his right knee on 14 June 2018 he sustained injury by way of the aggravation, acceleration or exacerbation of a degenerative condition of his right knee. I order the first defendant to pay the plaintiff's expenses under s 60 for treatment of his right knee since the injury I have found. I make an award for the second defendant. I order the first defendant to pay the plaintiff's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2022