Andersen v Toll Transport Pty Ltd t/as Global Logistics TGL Grocery

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Andersen v Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery [2023] NSWPIC 552
APPLICANT:	Dennis Michael Andersen
RESPONDENT:	Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery
MEMBER:	Michael Wright
DATE OF DECISION:	19 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Weekly compensation claim for injury to left knee and consequential lumbar spine condition; respondent disputed continuing condition, consequential condition, capacity, and challenged credit; Kooragang Cement Pty Ltd v Bates considered; Held – award for applicant for continuing condition, consequential condition, weekly payments.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) the applicant sustained injury to his left knee as a result of injury in the course of employment with the respondent on 23 January 2020. I find that the effects of that injury are continuing and that the applicant’s employment with the respondent was a substantial contributing factor to the injury and the main contributing factor to an aggravation or exacerbation of an underlying pre-existing degenerative condition. 2. The applicant sustained a consequential lumbar spine condition as a result of injury on 23 January 2020. 3. The applicant, as result of injury on 23 January 2020, had and has no current work capacity. 4. Responded to pay the applicant weekly compensation: a. pursuant to s 37(1) of the 1987 Act from 26 January 2022 to 22 July 2022 at the rate of $1,626.40 per week, being 80% of agreed pre-injury average weekly earnings of $2,033, and b. pursuant to s 38(1) and s 38(6) of the 1987 Act from 22 July 2022 and continuing at the rate of $1,626.40 per week. 5. General order as to s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Dennis Michael Andersen (the applicant) claimed weekly compensation from 26 January 2022 and continuing in respect of injury on 23 January 2020 in the course of his employment with “Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery” (the respondent).
The respondent in its dispute notices dated 28 July 2020, 14 October 2020, 13 January 2022 and 8 June 2022 disputed the continuing effects of the initial injury to the left knee, that is it asserted the effects of injury had ceased, and it also disputed consequential lumbar spine condition and capacity for work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the Conciliation/Arbitration hearing of this matter on 30 August 2023 the applicant was represented by Mr Robison of counsel, instructed by Mr Staninovski, and the respondent by Mr Doak of counsel, instructed by Ms Bauer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Applications to Admit Late Documents dated 14 July 2023, 18 July 2023 and
24 August 2023, and attached documents.

Oral evidence

There was no oral evidence.

Statements

The applicant provided statements dated 31 July 2020, 3 December 2020, 8 February 2022,
14 February 2023 and 13 July 2023.
In his statement dated 31 July 2020, the applicant said that he did not recall any prior problems with his left knee. He stated that on the day of the injury, that is on
23 January 2020, the applicant was disconnecting the leads from the trailer to the cabin of a truck, which required him to physically climb onto the back of the truck and stretch out to disconnect the trailer from the truck. The applicant stated that he estimated that there was about a 1.5m gap between the back of the cab to the trailer. He stated that he disconnected the trailer and as he moved backwards he heard a "distinctive and loud crack" in his left knee. He stated that at the time the pain "wasn't too bad" and he completed the rest of the shift. He stated that as he worked through the shift the pain became worse and by night time it had increased significantly. He stated that he went back to work the next day and felt significant pain after he climbed into his truck and turned to sit down. He stated that he reported on 24 January 2020 the incident where he heard the crack in his knee.
The applicant outlined the treatment that he underwent, including referral and treatment by Dr Thomas, a knee specialist. The applicant stated that on 27 April 2020 he consulted
Dr Thomas for an examination and during that examination he experienced a lot of pain in his left knee.
In his statement dated 3 December 2020, the applicant stated that since the left knee injury on 23 January 2020 he had been walking with an altered gait. He stated that he went to the right "too much without realising it”.
The applicant stated that he first started noticing pain in his back a few weeks after the subject injury. He outlined the reduction in his hours on light duties as time went by.
In his statement dated 8 February 2022, the applicant said that he had not worked with the respondent since June 2020. He stated he had not undertaken any other employment since that time. He also stated that he continued running his "hobby business on eBay" which he said that he had owned since about 2012 or 2013 which involved posting about 20 model cars per week. He stated that he had lost money from the business over the previous three years but he continued with it as a hobby and because of his valuable customers.
The applicant also recorded in his statement what he said Dr Thomas, and also Dr Gambhir, to whom the applicant had been referred for a second opinion, had said to him about his back. My place no weight on this aspect of the applicant’s statement.
The applicant also stated that he would be seeing Dr Gambhir again in March 2022 and if his back was worse by then he would undergo a bone scan.
The applicant also recounted in the statement of the fluctuating symptoms in his left knee. He also recounted the fluctuating pain in his back, depending on activity, and also other continuing symptoms in his back. The applicant also said that he does his household duties a little bit at a time and takes guests when he needs to. He stated that he is quite sore after mowing the lawn and he tries to rest afterwards.
In his statement dated 14 February 2023, the applicant commented on the "CCTV footage”. The applicant stated that he had been given a cortisone injection by Dr Thomas, and on the instructions of Dr Thomas, the applicant said that he kept moving and that was why he was seen during the activities that was shown on the "CCTV footage”.
The applicant also stated that on some days he felt okay and on other days he was not "half as strong as I used to be". He stated that his injury fluctuates from day to day.
In respect of his current symptoms, the applicant said that his "hypersensitive nerves" made his body feel sensitive all day. He recounted the symptoms that he thought in his left knee, including sharp pain, burning and strong pins and needles. The applicant also stated that he suffered from back pain, neck pain and constant headaches and a burning sensation in his face and eyes. He stated that he was constantly fatigued and he had difficulty driving, particularly in traffic because the vibrations of the car stopping and starting hurt his knees.
As for work capacity, the applicant said that he had worked as a truck or delivery driver since he was 17 years old and he has no other schools besides driving large vehicles. He stated that he has poor literacy skills and he struggles with spelling and writing. He stated that his medication for his pain makes him drowsy and tired throughout the day. He stated that he struggles to stand for periods of time and if he stands, it tends to lean on things for support. The other and stated that he can only walk for short periods and he struggles with bending and picking things up.
In respect of the eBay business, the applicant stated that he runs an eBay store with his wife. He stated that all he can do in the business is to take pictures of the items and he knows how to re-list items. He stated that his wife writes the descriptions and uploads everything onto the website.
The applicant provided a further statement dated 13 July 2023, in which he explained various transfer payments and receipts in relation to his business and general bank accounts. He stated that he would transfer some payments from his business account to his general bank account as they were short on funding for home and medical bills. He stated that payments received from another business entity were made into his account in respect of wages and by his wife and the reason that this was done was because they paid bills from his account.
The applicant’s wife, Mrs Deborah Andersen, provided a statement dated 13 July 2023, in which she confirmed the arrangements with respect to payment of her wages into the applicant’s bank account. She also stated that she was aware of the company in respect of her husband’s eBay account where he sells cars, but she said that she was not involved in that.

Video footage and social media posts

Attached to the reply were copies of social media posts and “internet searches” which referred to "working" on possibly two or more old cars and selling possibly one or more old car or cars.
I reviewed the video footage that was provided with the Reply, which was taken on 18 and
20 November 2021.
This video footage showed the applicant doing various activities, including using an edge trimmer, moving a large wheelie bin, lifting and moving a thin piece of material, being possibly wood or fibre board, with the assistance of another person onto the back of a vehicle, and using a high-pressure hose.

Financial records

I reviewed the applicant’s financial documents, including bank statements and his tax returns. In his individual tax return of 2022, I note that under the heading P8 Business Income and Expenses, "other business income" for a total amount of $352,324 was recorded. However, in the same section under Expenses, the "cost of sales" was recorded at $348,174, together with other expenses, and the total expenses was recorded as $361,560, leaving a net loss from the business of $9,236.

Dr Thomas

Dr Thomas, orthopaedic surgeon, hip and knee surgery, treated the applicant. He provided a number of reports.
In his report dated 27 February 2020, Dr Thomas noted that the applicant’s "Main complaints are of a clicking and catching sensation in the anterior aspect of the knee, towards terminal extension. He states that the sound was pretty loud initially, however now it has settled down. During the history, Dennis demonstrated the noise and it was ‘audible’”.
In a report dated 18 October 2020 to the applicant’s solicitors, Dr Thomas recorded a history of initial consultation with the applicant on 27 February 2020 from the applicant’s general practitioner (GP), Dr Chiwara. Dr Thomas noted a history of the applicant to continue to work after the injury with deteriorating symptoms, with the main complaint being a clicking and catching sensation in the anterior aspect of the knee towards terminal extension.
Dr Thomas recorded that the applicant did not give a history of any previous injury to the knee and he had been continuing to work on restricted duties at the time of initial consultation.
Dr Thomas noted the results of X-rays and an MRI in respect of the patella and recommended a CT scan to better assess bony structures.
Dr Thomas noted that on review on 27 April 2020 with results of the CT scan the applicant was still having pain in the area corresponding to the findings on the MRI. He noted on examination of the knee joint findings similar to before, which was mild effusion, full range and a quick towards the terminal extension corresponding with the area of tenderness.
Dr Thomas noted that he advised the applicant that it appeared there was a chondral or possible osteochondral fracture involving the medial aspect of the patella which had healed up in a slightly angulator position and was accounting for the clicking and sharp pain.
Dr Thomas noted that a subsequent bone scan on 29 May indicated that the fragment had healed.
Dr Thomas noted that on review on 4 June 2020 he advised the applicant that as the fracture has healed in a slightly malunited position, accounting for the symptoms, he would request WorkCover approval for an arthroscopy with debridement of the bone spur medially and if required a small arthrotomy would also be carried out at the same time.
In response to a question as to whether employment was a substantial contributing factor to the injury, Dr Thomas noted that the applicant denied any prior injury or symptoms and that the site that the applicant described the pain at the time the injury corresponded to the area of abnormality seen on the imaging and clinically.
Dr Thomas noted the lack of any symptoms in the knee prior to the injury and following that injury the applicant developed symptoms which failed to improve after over six months of conservative treatment. Dr Thomas noted that the symptoms had been deteriorating and this was affecting quality of life as well as work and the arthroscopy was reasonable and necessary to deal with the pathology causing the symptoms.
In an operation report dated 2 June 2021, Dr Thomas noted that the operation was a left knee arthroscopy and excision of bony spur medial facet of the patella. He noted findings of the suprapatellar pouch were "mild arthritis, bone spur medial aspect of the patella, inclined towards the medial trochlea. Upon dynamic movement, the track caused by the bony spur was noted on the medial femoral condyle and the medial trochlea.”

Dr Gambhir

In a report to the GP, Dr Gambhir, neurosurgeon and spine surgeon, noted a history that:
“…he sustained a left knee injury about a year ago. He has been experiencing severe knee pain ever since. He has also undergone surgery for his left knee. In the meanwhile, for the last 6 months he has developed lower back pain. The pain does radiated to his right groin and is associated with some paresthesia. The paresthesia is bilateral however. He denies any weakness in his legs or any bladder/bowel dysfunctions. He feels that the lower back pain is due to the abnormal posture, as well as loading of spine that he has to do due to his knee pain in the left leg. He says the pain is present every day. It gets worse on sitting in position and also walking when he has the knee pain.”
He observed that “…MRI scan of his lumbar spine does not show any significant evidence of disc disease or nerve compression. He does not have any significant facet joint arthropathy either. His back pain is likely due to soft tissue…”

Mr Wood

Mr Wood, physiotherapist, provided treatment to the applicant.
In a treating report dated 15 September 2020, Mr Wood noted "increasing low back pain after a knee injury altered his gait”. He also noted that the applicant "assumed a stiff antalgic gait and posture”. He noted that "the lumbar spine was limited into flexion reaching mid shin and near end of range extension" and “palpation and mobilisation of the L2–5 and S1 vertebrae proved both tender and restricted”. He also noted that "the knee was limited at 90° flexion with a palpable shift through range”.
In an "Allied health recovery request" dated 10 May 2021, Mr Wood provided a clinical assessment which diagnosed "bony abnormality in (L) knee from previous injury… Altered gate has affected L/S”. He noted symptoms were pain, loss of mobility and weakness. He noted signs including "tender posterior knee… Easily irritated with minimal ROM exercises… tender over T12 – L5… Moderate degree of muscle spasm in L/S… Pain near end of range knee flexion… Catching in through range".
Mr Wood provided an update treating report following surgery on 2 June 2021. He noted “gains with improved mobility to near full. Unfortunately despite vigorous physiotherapy to both his lower back and knee, Dennis remains tender over the medial aspect of the knee and patella border.” He noted that the applicant reported "pain and ache after prolonged standing and remains tender and sore in the lumbar spine, most probably from his altered gait".
In the report to the respondent’s solicitors dated 2 June 2022, Mr Wood noted that he had reviewed the video surveillance. He noted that "I usually see Mr Andersen in the morning for his appointments and he walks without a limp. I have occasionally witnessed an altered gait later in the day, coinciding with a reported increase in pain”. He also recorded that the applicant "capably participates in most activities of daily living without aid or assistance. He does however have difficulty with squatting and kneeling during periods of increased pain. At these times, he requires assistance".
Mr Wood also stated that "patients most commonly adopt a ‘one-leg stance’…secondary to pain or out of habit. Mr Andersen has been encouraged to even out his weightbearing and stance which will subsequently help reduce pain”. He also noted that "during my review of each of the videos, Mr Andersen's knees appeared equal in stance”.
Mr Wood also stated that "as I understand it, Mr Andersen completes light work on the cars with the heavy, mechanical work completed by someone else".
Mr Wood stated that "these activities are not inconsistent with self-reported limitations.
Mr Andersen was encouraged to continue normal activities within pain tolerances and to use common sense if his symptoms worsen".
In an update treatment report dated 14 February 2022, Mr Wood stated that the applicant had since undergone two injections into the knee "with mixed results". He noted that the applicant reported relief from pain and improved mobility after the first injection. However, he noted that "the second injection… has not had a positive effect with Dennis reporting increased pain and symptoms”. He noted continuing tenderness over the medial aspect of the knee and the inferior medial patella of the border, and pain and ache after prolonged standing and pain on full extension of the day even when non-weight-bearing. He also noted that the applicant remained tender and sore in the lumbar spine, "most probably from his altered gait”.

Eastern Creek Occupational Medicine Centre

Clinical records were provided by a number of entities, including the Eastern Creek Occupational Medicine Centre.
On 24 January 2020, Dr Chiwara recorded a history of injury to the left knee with increasing pain throughout the day. No swelling was noted "yesterday" and it was noted that it was very "tight back of the leg on waking up today" and "pain over the anterior part of the me.. No past injuries to the knee”. It was noted on examination that there was swelling and tenderness to palpation and tenderness on palpation on manipulation of the patella. Also noted was Attila Mel tracking. A diagnosis was made of “Baker's cyst rupture”.
A further note on 24 January 2020 was made by Mr Pappas. It noted progressive worsening of symptoms, "mainly tightness posteriorly… Mild click noted… General soreness”. An antalgic gait was noted.
A note on 28 January 2020 recorded improvement of pain and "intermittent pain… Associated with knee extension… Prolonged standing and walking… Was clicking – now minimal". Also noted was tenderness "under and below patella… Tight in medial hamstrings".

Thereafter the notes recorded knee symptoms to varying degrees. On 18 February 2020,
Mr Pappas recorded that:
“knee has been ok but had flare up on the weekend after carrying 10kg bag of dog food…symptoms stayed for the rest of the day…was also quite sore walking up stairs after consult last week…patient feels like any extra load though quads seems to flare up symptoms noting a gentle pulsating pain at rest through patella”
On 17 March 2020, Mr Pappas recorded that “…symptoms ISQ, nil changes, not as bad due to the fact that it is the start of the week, will likely continue increasing in pain as usual towards the end of the week…R LBP has still been present and R calf still sore too”.
On 20 March 2020, Mr Pappas recorded that:
“…patient reports knee is good for a Friday, still has increased throughout the week but seems to be a bit steadier…has done a lot less driving, more office work which he seems to believe is a factor in having lower symptoms overall…quite sore post treatment last consult but symptoms settled and felt quite good for the following two days calf and LBP have improved, slightly tender but better than previously.”

Dr Cawthorne

Dr Cawthorne, orthopaedic surgeon, provided reports to the applicant’s solicitors dated
15 May 2022 and 28 April 2023.
In his report dated 15 May 2022, Dr Cawthorne recorded a history of injury on
23 January 2020 which was consistent with other accounts of the applicant’s injury recorded above.
Dr Cawthorne also recorded a history of treatment that was consistent with other accounts of the applicant’s treatment in respect of his left knee, including diagnosis of a baker’s cyst by
Dr Chiwara, surgery by Dr Thomas on 2 June 2021, and corticosteroid injections to the left knee.
Dr Cawthorne also noted a history that subsequent to the knee pain, the applicant developed right sided lower back pain with referral to Dr Gambhir, spine surgeon. Dr Cawthorne noted that a lumbar spine MRI showed no significant evidence of disc disease, nerve compression or facet joint arthropathy. He noted that conservative management was suggested.
Dr Cawthorne noted that current left knee symptoms were described as ongoing anterior medial knee pain "8/10 in severity”. He noted that the pain was described as being like a "bone ache" that was associated with a feeling of warmth and swelling. Dr Cawthorne noted the pain was aggravated by walking for periods greater than 15 minutes and going downstairs.
Dr Cawthorne also recorded that there was right sided lower paravertebral pain that was worse at the end of the day following walking and was related to the left knee pain.
On examination, Dr Cawthorne noted that the applicant stood with a weight avoidance stance with a preference for the right leg. He noted restricted flexion compared to the right knee and a palpable clunk felt under the patella as the knee move from flexion to extension, causing a moderate amount of pain. Dr Cawthorne noted that the pain in the lumbar spine was in the right mid lumbar region about the L2 level and there was some mild pain on palpation along the paravertebral region. Dr Cawthorne noted various scans of the applicant’s left knee and lower back.
Dr Cawthorne was of the opinion that the applicant had ongoing knee pain as a result of the injury sustained on 23 January 2020. He was of the opinion that "the cause of the loud crack at the time was an osseus fragment breaking from the patella causing the worsening pain”, subsequently removed by Dr Thomas, and "this injury also exacerbated pre-existing patellofemoral degenerative changes which is now likely the cause of his ongoing issues both in the knee and his lower back, due to altered gate/stance mechanics”. He was of the opinion that employment was a substantial contributing factor and the main contributing factor to the exacerbation of the pre-existing patella femoral articular degeneration.
Dr Cawthorne also considered that pathology in the applicant’s lumbar spine was a "consequential injury”. He explained that "with his altered stance and reported alteration in activities secondary to his knee pain, it is more probable than not that his musculoskeletal back pain developed from this and therefore is a consequential injury”. He expected the applicant’s back pain to improve with physiotherapy, gait retraining and anti-inflammatory medication. Dr Cawthorne was the opinion that the applicant was unfit to work as a truck driver "or in any employment… involves driving long distances or standing/sitting in the one position for extended periods of time secondary to his knee pain".
Dr Cawthorne disagreed with the opinion of Dr Wallace that the applicant’s condition had resolved and that employment was not a substantial contributing factor. Dr Cawthorne was of the opinion that:
"Although pre-existing degenerative arthritis was likely present, Mr Andersen's knees were asymptomatic prior to the injury. Although it would be ideal if the knee if pain returned to its pre-injury condition, this is not the case and coupled with the osseous fragment that broke off at the time of the injury he now has ongoing pain and reduced range of motion as a consequence of his work injury.”
In his report dated 28 April 2023, Dr Cawthorne stated that he reviewed the surveillance footage, the applicant’s statement dated 14 February 2023 and the clinical notes of the GP’s medical practice.
He noted that his opinion in his previous report was based on the applicant’s "inability to perform long periods of sitting, standing and driving secondary to his knee". He also noted that it had been described that the applicant was no longer able to mow the lawn.
Dr Cawthorne noted that he “was not specific on other lawn maintenance activities”. He also noted that his earlier report, and the applicant’s further statement, documented that a cortisone injection was given to the applicant’s knee in October 2021 and "gave 1-2 months relief and allowed Mr Anderson to increase activities and physiotherapy".
Dr Cawthorne stated “after reviewing the surveillance footage, there is no change to my conclusions as expressed in my report dated 15/05/2022".

Dr Wallace

Dr Wallace provided reports dated 7 July 2020, 11 November 2020, 20 December 2021,
30 May 2022 and 24 August 2023 to the respondent.
In his report dated 7 July 2020, Dr Wallace recorded in relation to the incident on
23 January 2020 which was generally in accordance with the other histories noted above. He noted aggravation of left knee symptoms following examination by Dr Thomas on
27 April 2020 and the applicant said that he was at that time unable to sit for prolonged periods to do office work due to ongoing left knee pain. Dr Wallace noted present complaints constant aching pain in the left knee, worse on maintaining the joint in one position, prolonged sitting or standing or driving, and the pain was relieved by a range of movement exercises.
Dr Wallace noted that the applicant said that he was able to do housework at a slow pace but avoided heavy lifting and was unable to help with home maintenance activities of mowing and gardening. He also noted that "leisure, previously enjoyed doing car maintenance but has been unable to resume this activity”. Dr Wallace noted the outcome of available imaging at that time.
Dr Wallace diagnosed the work injury on 23 January 2020 was a minor aggravation of pre-existing degenerative osteoarthritis of the left knee, which had now resolved. He was of the opinion that this was a temporary aggravation which would have settled within a month of the incident. Dr Wallace stated that the current left knee symptoms were due to pre-existing degenerative osteoarthritis at the joint which was constitutional in origin and unrelated to applicant’s employment. Dr Wallace was of the opinion that there was no evidence of acute intra-articular pathology of the left knee on the investigations available and there was evidence of long-standing pre-existing degenerative osteoarthritis of the joint. Dr Wallace was on the opinion that the surgery proposed by Dr Thomas at that time was not reasonably necessary treatment there was no evidence of significant intra-articular pathology of the joint.
In a supplementary report dated 11 November 2020, Dr Wallace reviewed reports of
Dr Thomas and Dr Negus. Dr Wallace stated that the additional information did not order his opinion and that the applicant did not require surgical intervention at the left knee "as a direct result of his work incident on 23 January 2020”. He stated that "there is no evidence whatsoever that Mr Anderson suffered an osteochondral fracture at the left knee View of the MRI investigation findings of 8 February 2020 which was performed early two weeks post injury”. Dr Wallace disagreed with the opinions of Dr Thomas and Dr Negus that the applicant was suffering from any current disability of the left knee as result of the work incident on 23 January 2020 that he would benefit from surgery in this regard.
In his report dated 20 December 2021, Dr Wallace noted the left knee surgery performed by Dr Thomas in June 2021.
Dr Wallace also noted that the applicant stated that there was an onset of lumbar spinal pain since July 2020 due to alteration in his gait. He noted specialist review by Dr Gambhir, neurosurgeon, and ensuing physiotherapy treatment. On examination, Dr Wallace noted no complaint of current pain in the lumbar spine. He also noted present complaints of intermittent aching pain in the left knee, weakness at the left knee and stiffness at the lumbar spine. Not that the pain was worse with twisting, walking, standing, weight-bearing or sitting for long periods and is relieved by rest or elevating the left leg on a pillow.
Dr Wallace stated that the applicant had remained off work since May 2020. Dr Wallace noted the applicant stated that he had done no paid work since ceasing work in May 2020 and he complained of having no other source of income. Dr Wallace also noted at home the applicant had no difficulty dressing himself and he had difficulty in driving a motor vehicle automatic transmission for more than 20 minutes as the vibration from car travel aggravated his lumbar spinal or left knee pain. Dr Wallace also recorded that at leisure the applicant previously enjoyed doing car maintenance but had been unable to resume that activity.
Dr Wallace was of the opinion that there was no objective medical evidence that the applicant suffered any work related injury of his lumbar spine whilst in the employ of the respondent. He noted the applicant had ceased work with the respondent on 5 May 2020, at least three months prior to the onset of lumbar spine symptoms. Dr Wallace was of the opinion that the current lumbar spinal condition was unrelated to the previous minor left knee injury of January 2020 or the applicant’s employment with the respondent. He was of the opinion the applicant was suffering from multiple degenerative lumbar spondylosis which was constitutional in origin and unrelated to employment with the respondent.
Dr Wallace maintained his previous diagnosis and opinion in relation to the pathology and causation in applicant’s left knee. His opinion was that the applicant was fit for pre-injury duties as a full-time truck driver with respondent, on pre-injury full-time hours and with no current work incapacity. Dr Wallace noted that the applicant “claims that he has not been involved in any self-employed work nor receiving paid income in any occupation since he ceased work with Toll Group in May 2020.”
In respect of the surveillance footage, Dr Wallace stated that the applicant “exhibited no incapacity whatsoever at his lumbar spine or left knee during a period of surveillance in November 2021. In particular, he exhibited no abnormality of gait.” Dr Wallace also noted that the applicant had a normal gate at the time of his previous review in July 2020, prior to the alleged onset of lumbar spinal symptoms.
In his supplementary report dated 30 May 2022, Dr Wallace noted that at the time of reviewing in December 2021, applicant’s was normal and he distributed his weight equally between both limbs. Dr Wallace also stated that the applicant "may adopt a one leg stance whilst standing due to habit or to rest either leg”. He also stated that the applicant did not complain of any clicking in the knee at the time of his review in December 2021, and if such complaint was now being made then it was highly likely to be due to quadriceps muscle weakness rather than the injury of January 2020 "some 2 1/2 years ago which has long since resolved”. He was of the opinion that the applicant showed no evidence of ongoing left knee disability on the surveillance video footage. He also noted that Dr Cawthorn's report did not referred to any specific question in relation to applicant’s left knee condition prior to the incident of 23 January 2020.
Dr Wallace was also the view that “there is no medical evidence that Mr Andersen's minor work-related injury of 23 January 2020 has exacerbated his pre-existing degenerative osteoarthritis at the joint which persists to the current time”. He was also of the opinion that "there is no objective medical evidence that a temporary abnormality at the left knee is a causative factor for the onset of lumbar spinal symptoms" and the applicant "exhibited no gate abnormality at the time of review on 16 December 2021".
In his report dated 24 August 2023, Dr Wallace responded to a question regarding “constantly changing clinical presentations by the claimant” with reference to a Dr Mir, who had found ability to walk on tiptoes and heels, and ability to stand on one leg. Dr Wallace stated that the applicant had “exhibited significant differences in clinical presentation in regard to his in left knee condition in relation to his gait and ability to weight bear at the left lower limb. These differing presentations are not consistent with organic pathology at the left knee”. Dr Wallace agreed that upon review of the video footage the applicant would currently have the capacity to perform the duties of a Mail Sorter or postman.

Dr Mir

Dr Mir, pain specialist, provided reports stated 29 March 2023 and 9 July 2023 to the referring specialist, Dr Thomas.
In his report dated 9 July 2023, Dr Mir stated that:
“he had antalgic gait and put more pressure on his right lower limb. ROM of left knee are normal. On sensory examination of left lower limb, he has dynamic mechanical allodynia starts from 10cm above and below the left knee. He does not have any feature of CRPS…He was able to walk on his tiptoes or heels. He was able to stand on one leg. Romberg's test was normal.”

Dr Nazha

Dr Nazha, treating pain specialist, provided a report dated 19 April 2022. He recorded a history of an adverse reaction to diagnostic nerve blocks, which was now beginning to abate. He also noted the outcome over a Spect – CT bone scan which in his view did not demonstrate any "uptake of significant concern" with the affected knee or lumbosacral spine.

Reasons

The respondent accepted that the applicant sustained symptoms in his left knee in the incident on 23 January 2020.
It was, however, the respondent’s contention that any symptoms in the applicant’s left knee would have resolved in a relatively short period after the subject incident. The respondent also disputed any injury or consequential condition of the applicant’s lumbar spine and also any incapacity resulting from the incident. The respondent also put into issue the applicant’s credit, particularly with respect to capacity for work and also in respective of inconsistencies said to have been recorded in medical histories.
Turning to the credit issues first, I have viewed the surveillance footage. In my view the footage demonstrated movements of the applicant’s lower back and left knee in the activities noted above. However, in my view these activities were not of repetitive or sustained nature, nor did they demonstrate evidence of sustained effort on the part of the applicant, including in respect of moving the wheelie bin and the wood or similar material with the assistance of another person. In my view the video footage was inconclusive as to the nature and extent of the applicant’s movement of his back and left knee, as the footage was often short or obscured by objects such as vehicles, although there were some full views of the applicant performing activities. I decline to take notice or to make an inference in respect of the use of a line trimmer, as suggested by the respondent. As I have noted, the video evidence in this regard is inconclusive and I decline to make or take a further step in the fact finding process from my own experience of the suggested usage of that item.
The applicant also said that at the time of the video footage on 18 and 20 November 2021 he had had the benefit of a cortisone injection on 9 November 2021. The respondent submitted this was a convenient excuse which should not be accepted as it was given after the applicant became aware of the video footage by way of the s 78 notice dated
13 January 2022.
However, the treating reports of Dr Thomas tend to provide support for the applicant’s explanation. In his report dated 2 November 2021, Dr Thomas noted that the applicant continued to have symptoms and arranged for the applicant to have a cortisone injection. In his report dated 30 November 2021, Dr Thomas noted that the applicant had undergone an injection and review on 30 November 2021 and it was noted that the applicant said he felt symptomatically better following the injection and had returned to his physiotherapy sessions. Dr Thomas concluded that "given the good response I advised Dennis to have a second injection done early in the New Year”. In light of these contemporaneous treating reports of Dr Thomas, I accept the explanation provided by the applicant in this regard.
Further, the video footage was not inconsistent with the histories recorded by various doctors. Although the history recorded on 30 November 2021 by Dr Gambhir noted severe knee pain since the injury and lower back pain "present every day" and "it gets worse on sitting in 1 position and also walking when he has the knee pain”, that same history did not record any restriction on the applicant’s activities nor the extent of restrictions and pain throughout any particular day. As noted above, the video footage was not inconsistent with the contemporaneous reports of Dr Thomas. Mr Wood, after the surgery in June 2021 reported improved mobility to full but with remaining tenderness of the left knee and pain after prolonged standing and soreness in the lumbar spine probably from altered gait. The report of Mr Wood dated 2 June 2022 also provides a plausible, and in my view acceptable, explanation for all the applicant’s movements and activities, following Mr Woods review of the video footage. Dr Wallace in his report of 20 December 2021 also recorded the applicant performed activities which were not inconsistent with the video footage, for example ability to do some home maintenance activities of mowing and gardening for 20 minutes at a time.
Dr Cawthorne recorded that the applicant was no longer able to mow the lawn but could clean within the house in short intervals; the applicant was still able to drive but with pain; and that the applicant owns 14 old cars which he fixes up as a hobby but is no longer able to get under the cars repeatedly due to the pain in his knee.
In summary, I am not persuaded that the applicant’s credit is impeached by the video footage provided by the respondent. This conclusion is supported by the views of Dr Cawthorne and Mr Wood, who did not change their opinion in light of the video footage. I do not accept the respondent’s submissions in this regard.
In relation to “social media" accounts, I note that there were screenshots of a number of postings on various platforms, including purported postings relating to cars and model cars attributed to the applicant and his wife. However, the probative value of these screenshots is in my view low due to difficulties in ascertaining circumstances and dates of the postings, how and why they were made, and data input, output and processing of the platforms themselves.

The respondent also made submissions in relation to financial records and related documents provided by the applicant. It was submitted that the applicant’s wife’s statement that she was not involved in the company was not consistent with the applicant’s statement that he did not have significant input because he did not have technical ability. I do not accept this submission. The applicant’s wife referred to the company of her husband’s Internet selling account. On the evidence before me, this is not correct as the investigation report provided by the respondent detailed a relevant registered business name and an Australian Business Number in the applicant’s own name, but no evidence as to a company. The applicant’s wife also stated that she was not involved in "this", but it was not clear to me whether this was referring to the "company", or her husband’s Internet platform account, or the selling of cars. I do not regard the applicant’s wife's statement as being inconsistent with the statements of the applicant in terms of his activity in the relevant internet account platform.
The respondent also pointed to the applicant’s 2022 tax return which stated that his other business income that year was $352,324. It was submitted that the applicant had run this business since 2007 and it was not believable that it would be run at a loss for that long. It was submitted that the question is why the applicant with knee and back pain has a business that generates $352,000 in revenue and there is clear evidence in the report of Dr Cawthorne that the applicant works on the cars and owns 14 cars, and he is no longer able to get under cars repeatedly due to knee pain.
The respondent appeared to question the accountancy that produced the relevant tax return, but submitted that regardless of accounting that produces a loss, the applicant was able to generate business income of $352,000 and the applicant was able to perform various activities as shown in the surveillance video footage. I note that I have dealt with the video footage above. It was submitted that Mr Wood noted that the applicant "completes light work on the cars”.
It was submitted that the evidence showed that the applicant worked seated at a computer and all that is required is mental effort and physical effort, that is, work is being done. In this regard, it was submitted that the applicant’s bank statements period 28 December 2021 to
27 January 2022 payments received from “Adyen Australia”. It was submitted that an Internet search shows that this is a payment entity, presumably for model cars that the applicant was selling, totalling $13,850.12 in sales.
It was submitted that it is not relevant that there was no profit from these activities, rather income suggests that the applicant can do the work of the business.
The applicant submitted that these financial records are consistent with the applicant undertaking a hobby, not a business. It was submitted that this hobby commenced well before the applicant’s injury and the test is not whether he is able to undertake his hobby, it is a question of the work that the applicant can perform having regard to his injury.
In my view, the probative value of the bank entries with respect to Adyen Australia is low. The respondent’s submissions in this regard rely upon an Internet search that is not in evidence and a presumption which may or may not be correct. There is no evidence before me as to the reason or the period to which the payments refer. However, the applicant did not appear to take issue on this point, other than to submit that the applicant has been engaged in a hobby.
It was the respondent’s contention that the applicant had been conducting a business in relation to online or Internet sales of cars or model cars. I do not accept this submission. The Macquarie Dictionary[1] relevantly defines the word “business” in an economic sense as “the sale of goods and services for the purpose of making a profit”, and to “be in business” as “to earn a living from commercial activity”. A “hobby” is defined as “a spare time activity or pastime, etc, pursued for pleasure or recreation”. The respondent was correct in its submission that a profit is not determinative in the consideration of the work performed, and the applicant’s capacity, in the conduct of a business.
[1] Online edition, >
However, in my view, the magnitude of revenue or “income”, without more, is not necessarily determinative of whether or not the applicant was conducting a hobby. Similarly, the receipt of payments, as highlighted by the respondent, is also in my view not determinative of whether or not the applicant was conducting a hobby. Thus, the collection of stamps, perhaps in another era, or the collection of running shoes, in more recent times, may result in revenue or the receipt of payments. Certain stamps, or pairs of running shoes, may be very valuable indeed to other collectors. This view of the applicant’s activity as a hobby in my view is consistent with the applicant’s submission that an explanation for the magnitude of the revenue recorded could include the sale of valuable collector cars. It is not necessary to accept the applicant’s contention on this point, rather it illustrates that the large amount recorded as “other business income”, taken with a reported loss for that year, is capable of competing explanations, neither of which can be established on the evidence. The amount of approximately $352,000 was recorded against “other business income” and it might be implied that this may be an indicator that amount received was in respect of a business activity, not a hobby. However, there were no submissions on this point and, in any event, if this could be regarded as such an indicator then in my view it is outweighed by the matters discussed next.
The applicant stated that in about 2007 he opened an online store as a hobby to sell diecast model cars. This was supported, in my view, by documents enclosed with the factual investigation provided to the respondent. These documents showed registration of the relevant business name on 6 March 2012, and registration of an ABN in the applicant’s name on 1 July 2011. This supports the applicant’s statement, at least to the extent that he had been engaged in his hobby for a number of years prior to the injury on 23 January 2020. There was in my view insufficient evidence of sufficient probative value to establish that the applicant had earned a living from this activity and on balance this evidence in my view supports the applicant’s statement that he conducted a hobby in this regard from 2007. Although the ABN and the business name registration both referred to the word “business”, the same discussion applies as noted above, that is that there were no submiss“ons in t”Is regard and in any event these descriptions were in my view not conclusive as to the nature of the applicant’s activities.
It is possible that at a certain point a hobby may become a business, but in this case, on balance, the evidence in my view did not amount to such a situation.
In relation to the applicant’s left knee, the respondent submitted it was not clear, and it was not established, from the reports of Dr Thomas as to the relationship between the injury and the applicant’s left knee pathology and condition. I do not accept this submission. In my view Dr Thomas described two areas of symptoms in the applicant’s left knee, being pain and mechanical symptoms in the anterior medial aspect of the knee, and also painful clicking towards terminal extension of the knee. He was of the view that the chondral fracture involving the medial aspect of the patella had held in a slightly malunited position, accounting for the painful clicking. In my view Dr Thomas in his report of 18 October 2020 was of the view that employment was a substantial contributing factor to the injury, as he noted that the applicant denied any injury to the knee or symptoms in the knee prior to the workplace injury and the site of pain that was described by the accident at the time of the injury, the applicant continued to have pain at that site, and in the opinion of Dr Thomas corresponded to the area of abnormality seen on the imaging and clinically.
It was submitted by the respondent that with respect to the opinion of Dr Cawthorne, he had not identified how the applicant’s knee condition was related to work or how that was an aggravation. It was submitted that opinion of Dr Cawthorne as to causation was not explained and was assertion. I do not accept this submission. Dr Cawthorne made a detailed note of the outcome of a CT scan of March 2020. He noted ongoing anterior medial knee pain and clicking and crepitus. He explained the cause of the loud crack at the time of the injury was an osseous fragment breaking from the patella. He also explained that the injury also exacerbated pre-existing patellofemoral degenerative changes which was now the likely cause of the ongoing issues in both the knee and the back. This was not a controversial opinion. Dr Wallace was of the opinion that in the subject accident“"at worst” the applicant suffered a temporary aggravation of pre-existing degenerative osteoarthritis, particularly involving the medial compartment, with investigation evidence of degenerative osteoarthritis involving the medial and patellofemoral compartments. Dr Thomas, as noted above, identified two areas of symptoms, being the chondral fracture, and also the anterior medial pain. The opinion of Dr Cawthorne was not inconsistent with these other opinions in this regard.
However, Dr Wallace did not agree that the chondral fracture was the result of the subject injury. He was at the view that the investigations at the relevant time showed no evidence of acute pathology at the joint. However Dr Thomas pointed to the clicking noise in the knee which was demonstrated in February 2020 and also MRI imaging showing a possible bony abnormality in the medial facet of the patella corresponding to a bony irregularity seen on
X-ray. As noted above, Dr Cawthorne agreed with Dr Thomas and made a detailed note of a CT scan of March 2020 showing a bone spur of the patella and medial trochlea. I do not prefer the opinion of Dr Wallace on this point as the balance of medical opinion, that is
Dr Thomas and Dr Cawthorne, is to the contrary.
The applicant’s statements and also the medical history as noted above, including those of Dr Thomas and Dr Cawthorne, indicate that the applicant has sustained continuing left knee pain commencing at the time of the subject injury.
The reports of Dr Wallace, commencing with his report of 7 July 2020, provided his opinion that the incident of 23 January 2020 was minor and any aggravation of the applicant’s pre-existing degenerative condition was temporary. However, Dr Wallace in my view did not explain how the effects of such an aggravation would cease when there is a history of continuing pain in the left knee from the date of the accident, as he recorded. I do not prefer thpinionon of Dr Wallace in this regard and I prefer the opinion of Dr Cawthorne, whose opinion is in accordance with the applicant’s report of continuing left knee pain, which I accept.
In relation to the applicant’s back condition, the respondent submitted that the clinical records in February and March 2020 and later did not record a history of gait problems or altered gait. It was submitted that the histories recorded by Dr Cawthorne and Dr Gambhir confirm that this is the case. It was submitted by the respondent that Dr Cawthorn’'s opinion in this regard was that there was degeneration in respect of the applicant’s lumbar spine, which was insufficient for a causal nexus to be drawn. I do not accept the submissions.
Dr Cawthorne did take a history in relation to back pain and knee pain being related. He noted the right sided lower paravertebral pain was worse at the end of the day following walking and was related to the left knee pain.
Further, Mr Wood in September 2020 noted“"increasing low back pain after a knee injury altered his gait”. A later report by Mr Wood after the surgery on 2 June 2021 noted soreness in the lumbar spine“"most probably from his altered gait”. Mr Wood also noted that in respect of the“"one leg stanc”" he had encouraged applicant to even out his weight-bearing and stance“"which will subsequently help reduce pain”. The clinical note of Mr Pappas on
24 January 2020 made an observation of“"antalgic gai”". Right lower back pain was noted by Mr Pappas on 17 March 2020 and 20 March 2020. In my view, this is significant evidence that the applicant sustained an altered gait as a result of his left knee injury.
Dr Wallace was of the view that there was no objective medical evidence that the applicant sustained any work related injury of his lumbar spine. As appropriately conceded by the respondent, this is not the correct test. Dr Wallace continued that it is a false notion that a temporary alteration in gait can lead to a lumbar spinal injury. Again, this is an incorrect test. However, Dr Wallace noted that the applicant had a normal gait at the time of review in December 2021. He also noted that the video footage did not show an altered gait. As noted above, I have accepted the explanation provided by Mr Wood with respect to altered gait and his review of the video footage. I have also found that the video footage was inconclusive in respect of the activities performed by the applicant, including altered gait. I do not prefer the opinion of Dr Wallace in this regard.
It follows that I prefer the opinion and reports of Dr Cawthorne to those of Dr Wallace for the above reasons.
Applying the reasoning in Kooragang Cement Pty Ltd v Bates,[2] that is adopting a common sense view of causation, that due to his painful left knee, the applicant sustained an altered gait, more visible later in the day, as explained by Mr Wood, and as a result he sustained low back pain, as opined by Dr Cawthorne and Mr Wood.
[2] (1994) 35 NSWLR 452.
I find that the applicant sustained injury to his left knee pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 23 January 2020, being a chondral fracture and also an aggravation and exacerbation of a pre-existing degenerative condition, such injury being on a continuing basis. I find that, pursuant to s 9A of the 1987 Act, employment was a substantial contributing factor to that left knee injury and to the extent that it is necessary, that employment was the main contributing factor to the aggravation and exacerbation of the pre-existing degenerative condition of the applicant’s left knee. I have accepted the opinion of Dr Cawthorne in this regard.
I also find that the applicant sustained a consequential lumbar spine condition, being musculoskeletal back pain as diagnosed by Dr Cawthorne, as a result injury to his left knee on 23 January 2020, and that this is a continuing condition.
In relation to capacity, Dr Wallace in his most recent report provided an opinion as to fitness for work on the basis that the injury on 23 January 2020 had resolved it was the opinion that the applicant was fit to resume his pre-injury duties as a full-time truck driver with the respondent at his pre-injury full-time hours and that applicant had no current work incapacity as result of any work related conditions of the lumbar spine or left knee. As this opinion is based upon the premise that any injury on 23 January 2020 had resolved, I do not accept the opinion of Dr Wallace in this regard. He was also of the opinion that based upon the surveillance evidence the applicant currently had capacity to perform the duties of a mail sorter or postman. It was submitted by the respondent that Dr Wallace had regard to the duties of a mail sorter in providing his opinion, and that's such duties has been noted in a document attached to the reply. However, I was not taken to, nor could I find, evidence that Dr Wallace had considered that written document outlining the duties of a mail sorter. In any event, Dr Wallace did not explain how and why the applicant was fit for such duties with regards to the listed duties.
Dr Cawthorne was the opinion that the applicant was unfit to work as a truck driver or any employment that involves driving long distances or standing or sitting in one position for extended periods of time secondary to his knee pain.
In his statements, the applicant said that he had been a truck or delivery driver since he was 17 years old and he had no other skills besides driving large vehicles. He stated that the medication he takes for his injuries makes him drowsy and tired throughout the day. The applicant also stated that he has poor literacy and he struggles with spelling and writing. He stated that he can only walk for short periods and he struggles with bending and picking things up. He also stated that he is "technically challenged”. He is now 54 years of age.
In my view, the opinion of Dr Cawthorne, which I accept, would effectively preclude the applicant from the only employment for which he has experience and skills, that is truck driving.
The definition of suitable employment is contained within s 32A of the 1987 Act. Among other matters, regard is to be had to the nature of the applicant’s incapacity and the applicant’s age, education, skills and work experience. Regard is not to be had to such matters as whether or not the work or employment is available, and the nature of the workers pre-injury employment.
I have not accepted the respondent’s submissions that the activity performed by the applicant in respect of model cars was a business for which he had demonstrated a capacity for work. I have found that the applicant was engaged in a hobby in this regard and his activities cannot be regarded as work as they are in the nature of a pastime or a recreational activity. I have had regard to the applicant’s age, limited skills, and narrow scope of work experience over his working life. I have not accepted the respondent’s mail sorter document on the basis that an application of that document to the applicant’s particular circumstances was not made, and an analysis was not made by Dr Wallace in this regard. In my view, this not a real job that is available to the applicant.[3]
[3] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
In my view, the applicant is not able to return to work in his pre-injury duties or in suitable employment. I find that the applicant has no current work capacity and has had no current work capacity since 23 January 2020. Pre-injury average weekly earnings were agreed by the parties at $2,033. The applicant is entitled to an award of weekly compensation pursuant to ss 37(1) and 38(6) of the 1987 Act from 26 January 2022 for the applicable periods.
The respondent in its dispute notices, including that of 8 June 2022, disputed liability and entitlement to weekly compensation. In my view this satisfies the requirement of s 38 in respect of an assessment of current work capacity. Dr Wallace thought there was no incapacity as a result of a work injury. I have not accepted this view. Dr Cawthorne did not indicate a definite end period of incapacity. I have accepted his opinion and in my view the applicant’s incapacity, that is having no current work capacity, is likely to continue indefinitely. I apply the reasoning of Roberts v University of Sydney[4] in respect of the jurisdiction to make an order pursuant to s 38. There were no submissions as to the cessation date of the s 37 period. Liberty to apply in this regard.
[4] [2021] NSWWCC 25.
There will also be a general order as to s 60 expenses.

[2023] NSWPIC 552

19 October 2023