Ms Neville was the insurer representative. 4. Following conciliation impasse, the parties agreed that the issues for determination are:

(i) whether the applicant has a consequential right hip condition arising out of the accepted left knee injury and if so, and

(ii) whether the claimed right hip replacement is reasonably necessary.

1. No oral evidence was called. Documents were limited to the Application to Resolve a Dispute (ARD) and its annexures, Reply and its annexures and an Application to Lodge Additional Documents filed by the applicant.

1. In his statement dated 24 October 2024, the applicant outlines the surgical procedures to the left knee. He discusses the nature of his 1988 motor vehicle accident, resultant right femur surgery and return to work. He states his right lower limb largely remained asymptomatic until about 2022/2023 when symptoms in the right hip became quite pronounced following surgery to the left knee in March 2023 which required him to use crutches without the use of his left leg, thereby placing extra pressure and weight on his right hip. Pain became noticeable when getting out of bed in the morning and getting in and out of his car. He used his crutches intermittently between March and November 2023 but still had pain in the right hip. He underwent further surgery which required further use of the crutches.
2. He continued to work until October 2022 but remains certified unfit on account of his left knee, right hip and psychological injury (the subject of a separate claim). As he has trialled all available treatment and given the deterioration in pain and quality of life he now desires right hip replacement.
3. The applicant qualified Dr Bodel, orthopaedic surgeon. In his report dated

11 December 2024,[1] he concluded the fracture of the right femur in 1988 played a role in the current situation concerning the hip but noted the applicant had worked for a period of more than 25 years without complaint of right hip pain, symptoms only becoming manifest in 2023 following the fifth surgical procedure on his left knee. He acknowledged the right leg length discrepancy arising from the 1988 motor vehicle accident but also considered the left knee injury caused further imbalance causing the applicant to favour the right side. 4. He opined the left knee injury and its surgical management was the main contributing factor to the deterioration of the arthritic process in the right hip but also noted the leg length discrepancy of the right leg arising from the 1988 motor vehicle accident was also a contributing factor. He concluded that total hip replacement was reasonably necessary. Relevantly he agreed with the respondent's qualified opinion in that the intramedullary nailing of the right femur would likely have impacted the need for hip replacement but also emphasised that the multiple surgical procedures arising out of the accepted left knee injury have contributed to the right hip pathology because "over nearly 30 years he has been overusing the right leg because of the slowly deteriorating left knee function."[2] 5. The evidence globally reveals initial knee surgeries were performed by Dr Sullivan (the last being a successful knee replacement in 2011). On deterioration of symptoms in November 2022, the applicant was referred to Dr Bijoy Thomas who undertook two subsequent surgical procedures in 2023. Following the initial procedure in March 2023, the applicant informed Dr Thomas of "right hip trouble."[3] On further reassessment in May 2023, the applicant complained of pain in the right hip, groin and greater trochanter and informed Dr Thomas that he had no recent injury to the right hip but that 35 years earlier he underwent a K nail fixation for a femoral shaft fracture which was subsequently removed. He recorded "he had no problems until recently."[4] 6. Given the severity of pain, Dr Thomas investigated the hip with an MRI which on his assessment revealed degenerative changes and trochanteric bursitis. Cortisone injections were recommended and undertaken six weeks apart with little relief of symptoms. Further left knee surgery was undertaken in November 2023. Dr Thomas reported following the left knee compensable injury, the applicant had been placing increased load on his right hip and his back and recommended physiotherapy and pain management.[5] At assessment on

25 January 2024, he reported the applicant had been "loading the right hip to offload his left knee which had undergone surgery" and noted on examination the right hip had a grossly restricted range of motion and hip replacement surgery was necessary.[6] He further reported the applicant had not reported any issues with the right hip until sometime into the rehabilitation of the surgery of his left knee reporting "he has been loading the right hip which unfortunately became symptomatic and the underlying degenerative changes was aggravated."[7] 7. Dr Thomas addressed the impact of the fracture of the right femur but highlighted the fracture was not in the hip joint or trochanteric region and so had no impact on the hip joint. Further the degenerative changes in the right hip were asymptomatic until his left knee surgery in 2023.[8] 8. As regards treatment, he recorded conservative modalities would not correct degenerative changes that had been aggravated and agreed with the respondent's qualified specialist that total hip replacement was an effective operation to alleviate the current complaints and was a well-accepted form of treatment addressing the existing pathology in the hip.[9] 9. Gail Harris, physiotherapist recorded the applicant first presented for treatment for right hip symptoms on 3 July 2023 reporting a history of a "6-7 month history of right lateral hip

pain."[10] Further reports reported continued limited left knee range of motion and right hip pain. 10. Mr Donovan, podiatrist in a report dated 1 November 2011 confirmed a 20mm right leg length discrepancy corrected with the provision of a full foot lift for both his work shoes and casual shoes.[11] Reports confirm multiple presentations and complaints of a limp ultimately corrected with modified innersoles. It was recorded in April 2012 "after wearing the modified innersoles for 1 month, it appears that they have made a considerable difference, as Mr Reynolds now walks without a limp (due to the 1988 injury)."[12] 11. The leg length discrepancy was reported as 10mm by Dr Arudpragasam, IMC doctor in an injury management assessment on 1 July 2002.[13] 12. Clinical records of the Pacific Medical & Dental Centre confirm the applicant has been a regular patient since 2011. The first entry of specific right hip pain is recorded on

2 February 2023[14] where it was recorded (unedited):

Says trying to unload weight bearing on the left knee

1. At consultation on 21 February 2023 it was recorded (unedited):

He is compensating the movement of left limb with rt limb

1. Ongoing right hip pain was recorded at consultation on 6 September 2023[16], 19 January 2024[17], 8 February 2024.[18] Multiple other presentations record ongoing complaints of left knee pain and stiffness. Review of all of the notes confirm despite being a regular patient at the clinic, the first complaint of hip symptoms was immediately before and during the surgical treatment for the left knee in 2022/2023.

1. Following assessment of the applicant's claim for consequential condition, the respondent denied liability maintaining:[19]

(a) the claimed consequential condition to the right hip did not arise from the accepted left knee injury;

(b) its qualified medical opinion established changes in the right hip were largely due to surgery at the site of insertion and removal of an intramedullary nail used to treat an open fracture of the femur sustained in a motor vehicle accident in 1998 (unrelated to employment with the respondent);

(c) even the applicant's qualified opinion suggests that the need for total hip replacement was party as a result of the left knee injury on 3 October 1995 and partly as a result of the right leg shortening associated with the right femoral fracture sustained in the non work related 1998 motor vehicle accident, and

(d) the right hip replacement proposed by Dr Thomas is not reasonably necessary as a result of injury or consequential condition received by the applicant.

1. Dr Gray, orthopaedic specialist, reported on 29 February 2024. He took a history of the multiple left knee procedures and the 1988 motor vehicle accident which resulted in shortening. He concluded (unedited):

"Mr Reynolds was diagnosed with a trochanteric bursitis and has received treatment for a trochanteric bursitis. The abnormality seen on the radiograph of the right hip in connection to the right greater trochanter would relate to the surgery at the site of insertion and removal of the intramedullary nail employed to treat the open fracture of the femur sustained in the motor vehicle accident in 1988. In my opinion any symptoms relating to a trochanteric bursa would relate to the motor vehicle accident and unrelated to work...

Mr Reynolds still exhibits a quadriceps lag on the left side following the most recent left knee surgery. He needs to continue with an intensive quadriceps rehabilitation exercise program to improve quadriceps power and tone to overcome the quadriceps weakness exhibited.

In my opinion the current pain in Mr Reynolds right leg is not work related. I reject the consequential injury cause as proposed by Dr Bijoy Thomas....

Regarding the radiographic diagnosis of osteoarthritis of the hip, the Radiologist's report lacks sufficient detail for me to conclude that Mr Reynolds does indeed have significantly advanced hip osteoarthritis that would be amenable to a successful hip replacement....

I note Dr Bijoy Thomas has recommended a right total hip replacement. A total hip replacement is an excellent operation to restore pain free mobility in patients with clinical and radiological evidence of advanced osteoarthritis of the hip."[20]

1. Following a review of the file, Dr Gray again reported on 29 April 2025 and repeated he was unable to arrive at a definitive diagnosis in relation to the right hip problem as he had not seen the radiographs or MRI and the radiology report lacked detail. He concluded (unedited):

"The premise that a mild limp associated with weight-bearing as tolerated on crutches over a period of 12 months was the main contributing factor to the development of painful osteoarthritis of the contralateral hip, necessitating a total hip arthroplasty is not probable....

Further, it is my opinion, the main contributing factor to Mr Reynolds' current claimed right hip problem is time, i.e. the 35 years since his serious lower limb injuries sustained in the motor vehicle accident of 1988....

As I have pointed out in question two above, for a consequential injury to occur, the patient needs to exhibit a significant gait abnormality, with significant truncal shift over an extended period of time, at least 20 plus years. Mr Reynolds recovered well from his left total knee replacement and walked without a limp. He developed pain in his right hip, less than two years ago, during the rehabilitation phase following his first surgical procedure when mobilising weight bearing as tolerated with crutches. Due to a minimal increase in load on his right hip with the use of crutches (see my response to question 5) it is not probable that activities in the rehabilitation phase following his two most recent relatively minor surgical procedures (in comparison to the previous traumatic injury and subsequent total knee replacement) is the main contributing factor to his current right hip problem."[21]

1. In addition, Dr Gray referred to much medical literature on the leg length inequality and hip osteoarthritis, specifically referring to a discussion paper authored by Dr Harrington. In summary, the paper postulated there was no clear evidence to suggest that an injury to one lower extremity would have a significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage impacting gait pattern resulting in a limp over an extended period of time.[22]This literature and the main contributing factor test formed the basis of Dr Gray's rejection of the consequential claim theory advanced by the applicant.

(a) the applicant sustained a genuine injury to the left knee over 30 years ago whilst employed by the respondent. He continued to work during which he underwent six operative procedures including total knee replacement and resurfacing. The pathology of the left knee and the right hip is clear on investigations;

(b) it is common sense that the applicant suffers a consequential condition to the right hip. The medical records show that despite suffering injury in 1988, he returned to work and did not complain of right hip symptoms until his fifth surgical procedure to the left knee almost 25 years later. The respondent is clutching at straws by attributing all current symptoms in the right hip and the need for surgery to the unrelated motor vehicle accident in 1988, especially given that there was no complaint of hip pain between at least 1993 to 2023;

(c) the respondent's medical evidence should carry little weight. It has failed to engage with the history of knee injury and multiple surgeries, the asymptomatic nature of the right hip for over 20 years and the impact of the altered gait arising from the multiple left knee procedures, rehabilitation and use of crutches. The lack of access to radiological findings resulted in Dr Gray emphasising his diagnosis and opinion was incomplete, and

(d) there is no dispute amongst the qualified specialists that right hip surgery is reasonably necessary treatment and in fact the only last remaining treatment option given all other conservative modalities have been exhausted.

(a) the onus is on the applicant to show his right hip condition has resulted from his left knee injury and he has failed to do so on the balance of probabilities;

(b) findings should be made that the applicant's qualified evidence is based on unsubstantiated assumptions thereby rendering it of little or probative value especially as there is no evidence that the applicant has been "overusing the right leg for 30 years;"

(c) none of the medical evidence relied upon by the applicant has established a causal link or a chain of causation which passes the common sense test and especially as Dr Bodel has not reviewed the investigations, and

(d) given the above there should be an award for the respondent with respect to the claimed consequential condition.

(a) all qualified doctors have incorrectly referred to the tests of 'substantial contributing factor' or 'main contributing factor' which have no relevance as this is a consequential condition;

(b) the applicant's credibility has not been challenged by the respondent, and

(c) there is no dispute that the applicant has a complex presentation and has had traumatic injuries to both lower limbs, although the evidence demonstrates right hip symptoms only became symptomatic following the multiple surgical procedures to the left knee.

Has the applicant established a consequential condition to the right hip resulting from his left knee injury?

1. The law relevant to this application is found in the Workers Compensation Act (1987) (the 1987 Act).
2. The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):

(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[23] (Kumar) and such a finding can only be made if there is a sense of actual persuasion or affirmative satisfaction that the claims have been made out (Nguyen)[24];

(b) each case must be determined on its own facts;

(c) it is unnecessary for a worker alleging such a condition to establish that it is an "injury" (including "injury" based on the "disease" provisions) within the meaning of s 4 of the 1987 Act[25] (Moon);

(d) to establish a condition, there is to be a "common sense evaluation" of the causal chain, determined on the basis of the evidence, including expert opinions. There must be an unbroken chain of causation from the injury to the development of the consequential condition (Kooragang);[26]

(e) a finding of a consequential condition does not require the identification of pathology[27] (Kumar);

(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury, that is, it results from an employment injury[28] (Brennan);

(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation, and

(h) a consequential condition/s may be multifactorial in nature, but still result in liability being found against an employer where it is demonstrated that the subject injury "materially contributed";[29] to the claimed consequential condition/s (Murphy) and (Moon).

1. I acknowledge the respondent's cogent submissions in this matter. The applicant clearly had significant right leg injury which has resulted in shortening of the limb. However, it cannot be ignored he was able to return to work following that accident and surgery and worked without reported issue until 1995 when he had his left leg injury with the respondent. Since that time he has had no less than six surgical procedures on the left knee including a total knee replacement. Had this been a case of injury simpliciter, the respondent's argument with respect to the right hip and the need for treatment would have been persuasive specifically with regard to s 9A and 4(b) of the1987 Act. However, this being a consequential claim, I must embark on a commonsense evaluation with a specific focus on whether the right hip condition "results from" and/or "materially contributed" to the accepted left knee injury.
2. In undertaking a common sense evaluation, (Kooragang) which has involved a scrutiny of the chronology, medical evidence (both treating and qualified) and the applicant's statement, I find the applicant has demonstrated on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction (Nguyen) he has a consequential condition of the right hip which results from his accepted left knee injury. I find the applicant has established that the left knee injury has materially contributed to the right hip condition and further the respondent's position is untenable because:

(a) Whilst the applicant did have a significant injury to the right femur in 1988, this was successfully treated resulting in a return to unrestricted work. I further find the medical evidence reveals the hip was asymptomatic until his fifth surgical procedure for his left knee injury in or around 2022;

(b) the right leg length discrepancy which has been reported variably as 10mm or 20mm which had been successfully corrected with modified innersoles thereby not contributing to any significant gait derangement arising solely from the right femur injury;

(c) relevantly, the applicant suffered an injury to his right femur in 1988 and not the right hip, two very distinct pathologies. The applicant is not claiming a consequential condition to the right femur but rather the right hip, a totally separate area of anatomy;

(d) Dr Gray, much like Dr Bodel did not review the investigations. This causes me to prefer the opinion of the treating surgeon, Dr Thomas who on review of the MRI report confirmed degeneration in the right hip consistent with the symptom profile;

(e) careful review of the contemporaneous clinical notes reveal the applicant consistently attended the same practice for a number of work related and private health circumstances. The notes spanning over a period of 13 years make no reference to any right hip complaints until after the fifth surgical procedure to the left knee;

(f) further the notes are silent on any other cause of the right hip condition, linking symptoms to his left leg gait and the unloading of his left side onto the right side;

(g) Dr Gray postulates that the use of crutches would not result in a consequential condition in the right hip, however this does not reflect the entire history of the development of the condition recorded by the treating doctors and Dr Thomas which records the applicant "was loading the right hip to offload his left knee which had undergone surgery,"

(h) the medical literature referred to by Dr Gray and specifically that of Dr Harrington is a study focusing on the impact of an lower limb injury on a healthy/uninjured contralateral lower limb. Here the applicant had an injury to the right femur which underwent the insertion and subsequent removal of hardware. As a result the contralateral limb was not 'healthy or uninjured.' This study upon which Dr Gray largely relies upon to discount the consequential claim does not apply in these circumstances; and

(i) Dr Gray acknowledged abnormality in the right hip investigations and weakness in the left leg. He appears to acknowledge an altered gait but discounts the entirety of the applicant's claim concluding employment was not the "main contributing factor". This is not the correct test in a claim for a consequential condition.

1. I acknowledge the respondent's claim and agree the condition of the right hip is multifactorial in nature. However for the reasons stated in paragraph 30 above, find, on the balance of probabilities, the left knee injury has materially contributed and resulted in a consequential condition to the right hip (Murphy) and (Moon).

Is the need for right total hip replacement reasonably necessary?

1. Having found the applicant has a consequential right hip condition which results from his left knee injury, I must now consider the claim for hip replacement surgery. Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
2. The authorities on the interpretation "reasonably necessary" are overwhelming although three key principles stand out (but by no means are they exhaustive) relevantly:

(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is "reasonably necessary" (Nguyen);[30]

(b) secondly, whether treatment is "reasonably necessary"[31] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:

(i) "is it better that the worker have the treatment or not?" (in the sense that there are reasonable prospects that the worker's situation will be improved or ameliorated by the treatment (Diab),[32] and

(ii) the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective."

(c) thirdly, the need for treatment must be "the result of an injury." The authorities establish assessment requires:

(i) a commonsense evaluation of the causal chain the treatment is reasonably necessary "as a result of the injury" (Kooragang);[33]

(ii) the expression "results of", is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury "materially contributed" to that need (Murphy),[34] and

(iii) the worker establish:

"the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them."

and that "a condition can have multiple causes", these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question (Schokman).[35]

1. The applicant has exhausted mainstream conservative modalities including undergoing multiple injections all of which have produced limited benefit. Dr Thomas and Dr Bodel conclude hip replacement surgery is reasonably necessary given the history of treatment, current pathology and symptoms. Dr Gray deferred final opinion in the absence of the investigation films but commenting a recommendation for joint replacement would only be made in the presence of advanced osteoarthritis in the joint all the while reporting that such treatment is considered reasonably necessary.
2. I find that in the absence of any alternative treatment, that hip replacement surgery meets the definition of "reasonably necessary" (Rose) and (Diab). I further find that the applicant has established on the balance of probabilities that the injury has materially contributed to the need for hip replacement surgery with reference to the commonsense test of causation (Kooragang). Whilst I acknowledge that the radiological findings do not specifically refer to advanced osteoarthritis, which appears to be the threshold required by Dr Gray to validate the need for surgery, I prefer the opinion of Dr Thomas as he has reviewed and documented the radiological findings, considered them consistent with the symptom profile and proposed this treatment after all conservative measures have failed.

1. For the reasons above, I make the findings and orders set out on page 1 of this Certificate of Determination.

[19] Section 78 notice and s287A notice folios15 and 25 ARD.

[23] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[24] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[25] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).

[26] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).

[27] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[28] _Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (_NSWWCCPD 23)

[29] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

[30] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.

[31] Rose v Health Commission (NSW) [1986] NSWCC 2; [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; [1997] 14 NSWCCR 233 at [39].

[32] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.

[33] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.

[34] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

[35] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).