(a) the need for surgery 'results from' the accepted injury on 24 July 2024, and

(b) whether such surgery is reasonably necessary in the circumstances of the case.

1. The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).

1. In her statement dated 20 October 2025[1] the applicant discloses she dislocated her left knee as a teenager about 13 years ago. She had no knee symptoms on commencement with the respondent as an electrical apprentice in January 2024 or since the initial dislocation. She states on 26 July 2024 she tripped over a tool cutter and landed on both her knees and elbows. Despite pain she continued to work but two days later her knee gave way on getting out of bed. She was certified fit for light duties. She had an ultrasound in September 2024 and a cortisone injection and MRI in October 2024 starting physiotherapy shortly thereafter.
2. On 6 December 2024, she tripped over a rebar (a reinforcing bar) and landed on her left knee. This ripped her jeans and resulted in bleeding of the left knee which impacted with the bar. Physiotherapy continued and a further MRI was done on 9 January 2025. Consultation with A/Professor Viswanathan on 13 January 2025 resulted in a recommendation that she be careful with her movements, focus on physiotherapy and return for review. On review six weeks later he recommended more physiotherapy, taping of the knees and suggested physiotherapy be exhausted before consideration be given to surgery. At review on

14 April 2025 as the knee still felt unstable surgery was recommended. She elected to defer surgery as she wanted to exhaust conservative treatment but also because she could not afford to take time off work associated with post surgical rehabilitation. 3. The statement confirms physiotherapy treatments were received weekly between

October 2024 to March 2025 which she supplemented with home exercises. Treatment is now monthly as the insurer only approved a further eight consultations over six months following an independent physiotherapy assessment review by Dr Leaver. 4. Following ongoing symptoms and review by A/Prof Viswanathan on 15 May 2025 she elected to proceed with the recommended surgery due to an unstable feeling in the left knee. She accepted her attempts for almost a year with home exercises and physiotherapy had failed to provide relief of symptoms. 5. The statement indicates she has continued and continuous difficulty with squatting, standing, kneeling with an ongoing feeling of instability. She desires the surgery as she wishes to continue with her chosen vocation as an electrician. Without surgery, vocational redirection will be required. 6. Dr Nair, orthopaedic surgeon in his report dated 6 August 2025[2] repeated the past and current history of injuries narrated above. He recorded she had undergone extensive physical therapy but symptoms have worsened with the passage of time. He diagnosed "bilateral patellofemoral instability". 7. As regards causation he relevantly stated (unedited):

"It is clear that there is an intrinsic proclivity towards patellofemoral instability but one cannot discount the fact that she had direct trauma to her patellofemoral joints as a consequence of the incidents on 24 July 2024, as well as 6 December 2024....

The incidents are a substantial contributing factor as direct loading of the patellofemoral joints or direct blows of the patellofemoral joints would have imparted significant moments of force across the aforementioned joints. The incidents are not the whole and predominant cause, however, they are a substantial cause. It is fundamentally artificial to apportion in a quantitative manner as there is no cogent way of doing so. However, one cannot ignore the rudiments of biomechanics, that is that moments of force would have been imparted across her patellofemoral joints resulting in current symptoms....

I do not consider that she had any pre-existing condition as she was asymptomatic prior to the falls. She may have had a pre-existing anatomical proclivity towards patellofemoral instability, however, a pre-existing anatomical proclivity is not a condition...

She has features of instability in both her knees which is due to the direct trauma as well as an intrinsic proclivity towards patellofemoral instability...

There was no evidence of exaggeration, inconsistency or embellishment. The falls in question would have imparted significant moments of force across her patellofemoral joints. She had full range of motion of both her knees. Her issue is patellofemoral maltracking as opposed to a distinct tibial femoral issue...

If she does not have surgery, she should consider an alternative occupation in particular where she is not required to kneel and contort herself"

1. In his supplementary report dated 18 August 2025[3] he reported (unedited):

"As articulated in the report dated the 6th of August 2025, she does have an intrinsic proclivity towards patellofemoral instability due to her patellofemoral anatomy. What is incontrovertible is the fact that she did have direct trauma to her patellofemoral joints at work on the 24th of July 2024 as well as the 6th of December 2024, thus as articulated there is evidence of work related pathoanatomic....

The proposed surgery is reasonable as she's exhausted non operative care...

I provided my opinion in regards to the fact that there are multiple factors at play. In terms of legal liability this question should be put forward to legal counsel."

1. Dr Nabavi, orthopaedic surgeon was qualified by the applicant. In his report dated

12 September 2025[4] he diagnosed "mild constitutional maltracking of the patellofemoral articulation" which has become painful and "aggravated as a result of falls at work". He noted instability. He acknowledged that the knees were asymptomatic prior to the work falls. He considered employment was the main contributing factor to the aggravation of the condition stating (unedited):

"She did not have any pain in the knees prior to the accidents at work. There was a single episode of patellofemoral joint instability in 2014, which resolved without any significant intervention apart from physical therapy. So for a period of more than 10 years, she had no problems with the knees until they were injured at work....

The pathology of the right knee is also a constitutional predisposition of patellofemoral joint instability but there is evidence of fat pad inflammation and impingement, which has been aggravated by her fall at work....

the surgery is treating patellofemoral joint maltracking and overload...

Without the work related incident, surgery would not have been required as her knees were asymptomatic..."

1. He further reported her work injury materially contributed to the pathology and anticipated that a good surgical result would allow her to return to unrestricted kneeling, squatting and carrying without pain in the knees. He noted a steroid injection was unsuccessful in sustained pain relief and that the proposed surgery was usually an effective and accepted means of treatment for resolving instability in the patellofemoral articulation.
2. Dr Nabavi had the opportunity to respond to the respondent's qualified evidence in which he stated (unedited):[5]

"Dr Kinzel's comments are correct however despite the presence of predisposing factors to patellofemoral joint instability, this lady was symptom free until she had a fall at work. The fall has aggravated the maltracking and is causing impingement and anterior knee pain. This has not resolved with conservative management. The aggravation continues and therefore surgical intervention under Workers Compensation scheme is reasonable...

With regards to the medial patellofemoral reconstruction, this is simply to tighten up the medial stabilising structures of the patella, which may have been stretched as a result of the injury and not necessarily ruptured. (my emphasis). Even though there was pre-existing patellofemoral joint maltracking, this was asymptomatic. The symptoms were caused by the work injury and they have not ceased and therefore it is reasonable to perform the surgery under Workers Compensation provisions. I confirm that the work incidents on the 24th July and 6th December 2024 are material contributors to the need for surgery...

I think that without the falls, it is unlikely that she would require surgery at this point. She would have been able to continue to manage the condition conservatively. The onset of the symptoms have been as a result of the fall and one can assume that if she had not had a fall, she would have continued to live symptom free for a considerable period of time. In fact it is not unusual for people with mild malalignment and maltracking to have no issues in the knees until later in life."

1. The reports of A/Prof Viswanathan[6] confirm the multiple consultations, the encouragement and compliance with physiotherapy and exercise physiology, the reluctance of the applicant to undertake surgery given she was still in the early stages of her apprenticeship and the ultimate request for surgery once conservative measures had been exhausted on account of recurrent patella femoral instability which had not settled and had been aggravated by the fall. He recommended the surgery identified in paragraph 2 above.
2. Dr Kevin Bailey, occupational physician reported on 18 June 2025.[7] Following a telehealth assessment he considered the applicant would likely benefit from realignment surgery but that she would also benefit from a rehabilitation program in the first instance which would involve a "customized and supervised home exercise rehabilitation program using the Psychiatric template system". He recommended return to work with no kneeling, repetitive squatting or lifting more than 10kg. He noted "a trial of physiotherapy had been commenced".
3. Physiotherapy clinical records of the JT Physiotherapy practice confirm the applicant attended physiotherapy weekly between October 2024 and March 2025.[8]

1. The position of the respondent was articulated in its s 78 Notices dated 5 June 2025[9] and

24 June 2025[10] and its review notice dated 26 August 2025.[11] Its position has been consistent relevantly; * that the proposed surgery was unrelated to the workplace incidents and would treat pre-existing malt racking which is a congenital abnormality unrelated to workplace injury either by way of cause or aggravation; * EML is liable only for treating the aggravation of the preexisting condition and not the condition itself and/or alternatively; * non-operative care and conservative measures have not been exhausted. 2. The above position arises in part from its qualified medical evidence, Dr Kinzel, interpretation of the radiological investigations and assessments by Dr Bailey and Dr Leaver. 3. Dr Kinzel, orthopaedic surgeon in her report dated 18 February 2025[12] took a consistent history of injury. She diagnosed anterior knee pain and fat pad impingement with residual pain from overloading the front compartment. She reported that employment was the "sole contributing factor to her symptoms" and that "her knee became painful through the fall. This is on the background of mild patellofemoral malt racking". She anticipated full resolution of symptoms within three to six months with "aimed physiotherapy" and that treatment had been ineffective at the time of reporting as she only had two sessions of physiotherapy. Surgery was not recommended. 4. In her supplementary report dated 12 June 2025,[13] the diagnosis of patella maltracking was considered a condition "she was born with". She continued (unedited):

"The fall aggravated her knee and caused anterior knee pain. Patients with valgus alignment and patella maltracking have a higher incidence of patella impingement and anterior knee pain...

MPFL reconstruction medialises the patella, which prevents the patella from subluxing and maltracking and possible dislocation. Rebekka did not have an MPFL rupture. Therefore, the surgery required is more related to pre-existing conditions. The proposed surgery would treat her pre-existing maltracking of her patella."

1. MRI findings of the left knee on 7 November 2024[14] conclude there is anatomy which predisposes to patella instability, there is impingement of the fat pad, no signs of recent patellar relocation and intact cruciate ligaments and menisci. Similar findings are recorded in subsequent scans on 9 January 2025[15] and 10 July 2025[16] with the latter report noting new findings "there is marked stretching and thinning of the MPFL towards its femoral insertion suggesting an old tear". (my emphasis)
2. Dr Andrew Leaver, independent physiotherapy consultant in his file review report dated

5 May 2025[17] considered exercise physiology was not reasonably necessary but did recommend eight physiotherapy treatments over a period of six months. He recommended moving towards independence and self-management in treatment.

1. In addition to referring to the above lay and medical evidence, counsel for the applicant submitted;

(a) it is accepted the applicant has a pre-existing condition in the left knee but she was asymptomatic for over a decade until the workplace injuries. The evidence clearly demonstrates she has suffered an aggravation within the meaning of s 4(b)(ii) of the 1987 Act and that without the injury she would not have required treatment at this time. The respondent fails to appreciate this;

(b) the reports of Dr Leaver and Dr Bailey should carry little weight as both were conducted via telehealth and or file review with no physical examination possible;

(c) the respondent's own qualified specialist accepts symptoms are entirely related to the fall at work. As regards the supplementary report, the opinion fails to appreciate that the applicant was asymptomatic for over a decade, was able to engage in her work as an apprentice electrician which required repeated bending, standing, twisting and carrying for over a period of six months without incident until the workplace injury in July 2024. The doctor fails to appreciate the definition of s 4(b)(ii) of the 1987 Act and fails to explain why the surgery only relates to the pre existing constitutional abnormality when it is evident that the injury aggravated the preexisting condition;

(d) the bulk of the medical opinion supports aggravation of a preexisting condition and that the fall was responsible for such aggravation. The reports all suggest surgery as a reasonable treatment modality with the only disagreement found in the reports of those practitioners who did not have an opportunity to review the applicant either because the assessments were telehealth or file reviews;

(e) the applicant has exhausted mainstream conservative modalities. She had regular physiotherapy up to twice weekly at times between October 2024 and March 2025, a cortisone injection and undertook her own self-directed rehabilitation program in an attempt to avoid surgery as she is concerned about the financial impacts of this decision and her ongoing employment which she enjoys. The suggestion by the respondent's doctors that she should continue with physiotherapy is without basis given that intensive physiotherapy has offered limited relief. In any event, the frequency of physiotherapy was reduced at the suggestion of Dr Leaver in May 2025 at the same time the applicant informed A/Prof Viswanathan that her symptoms have not resolved with such treatment, and

(f) the only finding available is that employment injury has aggravated the well-established preexisting condition and the need for surgery "results from" the injury.

1. In addition to referring to the above lay and medical evidence, counsel for the respondent submitted;

(a) the applicant bears the onus of establishing that the need for surgery "results from" the workplace injury and has not done so;

(b) there is no dispute the applicant has a pre-existing condition and the surgery proposed is clearly to cure the preexisting condition. Whilst the term "aggravation" has been referred to, the exact aggravation has not been particularized with the exception of Dr Nabavi stating that the purpose of the proposed surgery is to "simply tighten up the medial stablising structures of the patella which may have been stretched as a result of the injury and not necessarily ruptured";

(c) the surgery proposed is to address the constitutional valgus deformity. It is not a varus deformity and the valgus deformity is clearly not work related, this being supported by the MRI findings which show that this anatomy predisposes the applicant to episodes of patella instability;

(d) in summary the evidence overwhelmingly supports the need for surgery does not "result from" the workplace events. As a result there should be an award for the respondent because;

(i) the condition is constitutional with a historical injury clearly evident;

(ii) it is bilateral; and

(iii) surgery is aimed to treat malt racking which is solely attributed to constitutional anomaly and not any aggravation arising from workplace events, and

(e) even if it is found that the need for surgery "results from" the workplace injury, the evidence of Dr Kinzel, Dr Leaver and Dr Bailey clearly demonstrate that conservative modalities have not been exhausted.

1. Injury is not in dispute. However given the submissions by applicant's counsel it is appropriate to review the definition in s 4 of the 1987 Act (relevantly):

(a) means personal injury arising out of or in the course of employment,

(b) includes a 'disease injury' , which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease..."

1. In assessing injury, key authorities establish:

(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological/physiological change: Castro v State Transit Authority (NSW),[18] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[19] "the word 'injury' refers to both the event and the pathology arising from it";

(b) the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[20] (Kooragang), and

(c) the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities where I must feel an actual persuasion or comfortable satisfaction of the existence of a fact - Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).

1. This critical term is not defined in the 1987 Act, but has been the subject of much authority which when summarised reveal the key principles are:

(a) the test of "main contributing factor" is one of causation which involves consideration of the evidence overall and further in a matter involving a disease injury, it is necessary that the employment be the main contributing factor to the aggravation and not to the underlying disease process as a whole (AV- AW);[21]

(b) the employment need only be the main contributing factor to the relevant aggravation etc and need not contribute to the causation or the pathology of the underlying disease itself (Rootsy), (Murray) (Hancock);[22]

(c) moreover, for aggravation etc to be found it is not necessary for the employment to have caused actual worsening in the pathology of the disease itself (although this will often be the case); it will be sufficient if there has been an increase in symptoms and restrictions resulting from the disease (Sem itch),[23] and

(d) aggravation or exacerbation of a disease occurs where the experience of a disease by the patient is increased or intensified by an increase or intensifying of symptoms (Kelly).[24] On the other hand, it has been held that the mere manifestation of, or an increase in, symptoms in the course of employment will not necessarily constitute an aggravation injury if such symptoms are the ordinary consequence of the underlying condition (Beattie).[25]

1. The above summary may appear repetitive however each authority has its own nuances. Further, I emphasise the summary is not exhaustive.

Does the need for the proposed surgery "result from" the accepted workplace injury?

1. The respondent maintains the proposed surgery is solely to address the pre-existing constitutional condition of valgus deformity and the applicant has failed to explain how any workplace events have aggravated this condition. The respondent was critical of the opinion of Dr Nabavi who postulated that structures of the patella may have been stretched as a result of the injury. The respondent stressed that the assessment of the radiological findings confirmed the constitutional anomaly. This is correct. However, the latest left knee MRI report supports Dr Nabavi's "stretching" theory in that it concludes "there is marked stretching and thinning of the MPFL towards its femoral insertion suggesting an old tear".[26] Unfortunately "old" is not defined but what is clear is that there has been stretching and thinning of the MPFL which supports Dr Nabavi's theory. Further, this finding was not recorded on earlier MRI scans. I therefore find that the conclusion of aggravation of the pre-existing condition is supported by the MRI findings. The respondent emphasised that the condition is bilateral. This may be correct however, in the absence of a right knee MRI, it cannot be ascertained whether there is marked stretching or thinning of the constitutional anomaly in the right knee which has not been injured in this case.
2. I also accept that the applicant had a similar injury more than a decade ago. There is no medical record of any complaints in the left knee until her injury in July 2024. The applicant managed to work in her heavy employment as an apprentice electrician for a period of more than six months without incident. Whilst the applicant was not cross examined, I find that her statement, recall of events to the multiple examiners coupled with the absence of complaints for many years prior to the 2024 incident are consistent. I find her to be credible.
3. Dr Kinzel maintains that the treatment is solely for the purposes of treating the pre-existing and bilateral constitutional anomaly. She accepts that the applicant's symptoms were entirely the result of her workplace injury and does not engage with the evidence or case theory of stretching of the MPFL which is supported by the latest MRI findings. It does however appear that Dr Kinzel had not examined the final MRI findings dated 10 July 2025 given that her reports predate that investigation. Her conclusion and the respondent's positon which followed therefore fails to take into account the well-established authorities discussed in paragraph 33 above including the High Court which establish that it is unnecessary to demonstrate a worsening in the pathology of the disease itself, rather that there has been an increase in symptoms and restrictions resulting from the disease and that employment injury is the main cause of this (Sem itch and Kelly).
4. Overall, I find that the applicant has established, on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction (Nguyen) that her employment injury was the main contributing factor to the aggravation of her disease condition satisfying s 4(b)(ii) of the 1987 Act because:

(a) whilst there is evidence of previous aggravation more than a decade ago, the applicant was largely asymptomatic until her injuries at work in July and December 2024, both of which resulted in her falling directly onto her left knee. She had worked with the respondent for a period of 6 months in similar heavy duties without complaint until the direct impact on her knee in July 2024;

(b) the applicant and her treating specialist were comfortable with delaying surgery for as long as possible given that conservative interventions allowed a satisfactory level of function and management of symptom flares. The position only altered when the applicant's condition plateaued without relief with ongoing pain and continuing feeling of 'giving way' rendering it possibly unsafe to continue with her work;

(c) there is a well-documented deterioration in symptoms following the incident in July 2024 in relation to the ability to kneel, squat, bend and carry, functions, which were unimpeded prior to the injury; (Sem itch), and

(d) whilst I accept that the employment injury was not the cause of the condition/disease, (Rootsy), (Murray), and (Hancock), I find considering the whole of the evidence that there has been a significant and severe increase (aggravation/exacerbation) of symptoms as a result of the workplace incident which has accelerated the need for surgical intervention with the MRI investigation confirming thinning and stretching as postulated by Dr Nabavi. (Kelly) and (Semlitch).

1. For these reasons, I find that the applicant has suffered 'injury' within the meaning of the 1987 Act and further that her employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease and that the need for surgery "results from" the aggravating events.

1. Section 60 of the 1987 Act prescribes that if as a result of an injury, it is "reasonably necessary" that treatment be undertaken, then the employer (respondent) is liable to pay for the costs of such treatment or service. "Treatment" relates to the management of the disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest, abate or retard the condition or alleviate, cure or remedy the condition.[27]
2. The 1987 Act does not define "reasonably necessary". The authorities on the interpretation of this section are overwhelming although I have identified three key principles relating to the assessment of such claims summarised as follows (but again these are not exhaustive):

(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is "reasonably necessary" (Nguyen);[28]

(b) secondly, whether treatment is "reasonably necessary"[29] (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);[30]

(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 common sense evaluation of the causal chain the treatment is reasonably necessary "as a result of the injury" (Kooragang);[31]

(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), [32] 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).[33]

1. The medical consensus in this case narrows the dispute and confirms the surgery proposed is likely to be symptomatically effective, curative, cost effective and accepted by the medical profession to treat the pathology present (which I have found to have been aggravated by workplace injury) and so meets the baseline requirements 'reasonably necessary' summarised above. However, this of itself is insufficient to establish indemnity.
2. The respondent alternatively argues surgery is premature given that its qualified specialists, Dr Kinzel, Dr Bailey and Dr Leaver have recommended conservative modalities.
3. Dr Kinzel suggested ongoing physiotherapy was appropriate but she has proposed this on her understanding the applicant, at the time of her review, had only undergone two sessions of physiotherapy. Her opinion is based in an erroneous understanding of the treatment history. The treating physiotherapy records confirmed weekly treatments of physiotherapy between October 2024 and March 2025.
4. Dr Bailey and Dr Leaver did not physically examine the applicant, their reviews being limited to telehealth and/or file reviews. Dr Leaver suggests the applicant only needed eight physiotherapy sessions over a period of six months which is inconsistent with Dr Kinzel's opinion that the applicant required three to six months of "aimed physiotherapy". Dr Leaver's report is silent on the documents available to him during his file review and it cannot be ascertained if he was briefed with Dr Kinzel's opinion. If he was, he fails to explain why his view on frequency of physiotherapy is at odds with Dr Kinzel's recommendation of "aimed physiotherapy" given their opinions are only one month apart. Dr Leaver does not consider further rehabilitation intervention necessary and also had not seen the MRI dated July 2025 referring to the marked stretching and thinning of the MPFL.
5. Dr Bailey who reported just one month after Dr Leaver suggested that rehabilitation should form the main treatment.
6. Overall, I find that there is a disconnect and a lack of continuity in treatment approach amongst the respondent's experts. Dr Kinzel erroneously recommends continuing physiotherapy on the basis she understood the applicant had only had two sessions at the time of her review. Dr Leaver suggests that physiotherapy should be tapered to eight sessions over six months, thereby reducing the previously approved weekly visits and finally, Dr Bailey opts for rehabilitation, a course of action discounted by Dr Leaver. Further, none of these specialists have had the opportunity to examine the most recent MRI which was congruent with the opinion of 777Dr Nabavi which demonstrates pathology suggestive of marked stretching and thinning of the MPFL and comment on whether ongoing physiotherapy could alleviate the effects of such pathology, (particularly given that it had already been intensively trialed for a period of over five months with little sustained benefit).
7. At the risk of repetition, but by way of reinforcement, in my assessment of liability above, I concluded the disease was significantly aggravated by the injury. I further find this has resulted in the current requirement for surgical intervention, a proposal only arising by virtue of the aggravation arising from this injury. I acknowledge the respondent's argument and agree there are multiple causes for the condition, the primary one being constitutional abnormality, however, I find that despite the presence of multiple causes, the requirement for surgery would not have been enlivened had it not been for the injury in question (Schokman). I therefore find the injury did materially contribute to the need for the provision of surgical intervention and further it is the material cause for the treatment. (Murphy)
8. I acknowledge the respondent's submissions that the condition is bilateral and constitutional however, the work injury does not need to be the only or even a substantial cause of the need for the treatment before the cost is recoverable (Murphy). In the absence of a right knee MRI also identifying marked stretching and thinning, this argument was not persuasive.
9. Overall, having considered the totality of the evidence and submissions, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment based with reference to the commonsense test of causation (Kooragang). I further find that the applicant has trialled and exhausted conservative modalities of treatment with no lasting symptomatic relief. Given this, I further find that the proposed surgery is reasonably necessary (Rose) and (Diab) as a result of the injury.

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

[8] Physiotherapy clinical notes folio's 76 to 106 ARD.

[18] [2000] NSWCC 12; 19 NSWCCR 496.

[19] (2003) 25 NSWCCR 422, [429].

[20] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), at [463].

[21] AV v AW [2020] NSWWCCPD 9

[22] Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48; [2002] 23 NSWCCR 725, Murray v Shillingsworth [2006] NSWCA 367 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.

[23] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; [1964] 110 CLR 626.

[24] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.

[25] Commonwealth of Australia v Beattie [1981] FCA 88; [1981] 35 ALR 369 (Beattie) and Albury City Council v Gunton [2011] NSWWCCPD 68.

[27] Rose v Health Commission (NSW) (1986) 2NSWCCR 32 (Rose).

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

[29] 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.

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

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

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

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