Bullen v Secretary Department of Planning and Environment

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bullen v Secretary Department of Planning and Environment [2023] NSWPIC 109
APPLICANT:	Robert Bullen
RESPONDENT:	Secretary Department of Planning and Environment
Member:	Michael Moore
DATE OF DECISION:	16 March 2023
CATCHWORDS:	Claim for lump sum compensation; worker suffered an initial injury to the right knee, a consequential condition involving the left knee had been accepted by the respondent; the only remaining issue was whether an incident involving an injury to the left elbow following a fall was also a consequential condition; Held – that a full review of the contemporaneous records and doctors reports established on the balance of probabilities that the injury to the left elbow was a consequential condition of the right knee injury; Makita (Australia) Pty Ltd v Sprowles applied in rejecting the opinion of qualified doctor.
determinations made:	1. WORKERS COMPENSATION - The applicant suffered a consequential condition to his left elbow. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: Date of injury 14 August 2008. Body systems / parts: right knee and consequential condition to the left knee and left elbow. Method of assessment: whole person impairment. 3. The following additional documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute; b. Reply to Application to Resolve a Dispute, and Application to Admit Late Documents dated 20 February 2023.

STATEMENT OF REASONS

BACKGROUND

Robert Bullen (the applicant) was born in 1955 and is presently 67 years of age. He was employed by the National Parks and Wildlife Service a division of the Department of Planning and Environment (the respondent) as a Field Officer for approximately 22 years up until November 2012 when he was medically retired.
The applicant alleges that he suffered an injury to his right knee on 14 November 2008 when he knelt down to carry out work on a barbeque. The applicant alleges that he felt the right knee “pop“ and which was then unable to be straightened.
The applicant initially saw his general practitioner and an MRI scan was performed and apparently was reported as showing a posterior horn tear of the medial meniscus.
The applicant was subsequently referred to a Dr David Carmody who carried out an arthroscopy of the right knee on 22 December 2008. Dr James Bodel, orthopaedic surgeon (Dr Bodel) in his report dated 22 July 2021 recorded that the arthroscopy revealed that not only did the applicant have a torn meniscus in the right knee but also suffered from severe medial and retropatellar arthritic changes in the knee.
The applicant states that the arthroscopy of 22 December 2008 made things worse in the right knee and that he developed quads inhibition and wasting of the thigh. The applicant underwent extensive physiotherapy and while he derived some benefit “he was still struggling”.
The applicant further alleges that he subsequently developed problems in the left knee as a consequence of ongoing dysfunction in the right knee. It appears from the report of a Katrina Burnham the Rehabilitation Coordinator for the respondent dated 10 September 2012 that the applicant reported pain developing in the left knee in April 2009. X-ray and MRI investigations were noted by Ms Burnham as showing osteoarthritis. Surgery was carried out on the left knee in 2010.
As a consequence of his health problems the applicant was medically retired in late 2012. The problems in the knees continued to worsen after retirement.
The applicant underwent bilateral knee replacement surgery on 17 October 2017.
While the respondent initially accepted liability for payment of workers compensation benefits for the claimed right knee injury liability was initially denied for the left knee problems.
The respondent subsequently accepted liability for payment of workers compensation benefits for the alleged consequential condition of the left knee.
The applicant alleges that subsequent to the bilateral knee replacement surgery the ongoing symptoms in the left knee are now worse than those in the right knee.
The applicant further alleges that he also suffered a fall and a resultant consequential condition of the left elbow on 1 November 2011 as a consequence of the right knee injury of 14 November 2008. He states that the right knee gave way when he mistook a change in ground level as a consequence of glare from the sun impeding his vision.
At the time of the incident on 1 November 2011 the applicant was carrying out his duties in the course of his employment with the respondent, specifically, replacing sanitary bins in the Ladies toilets at a picnic area at West Head in the Ku-Ring-Gai National Park and he fell when returning to his vehicle.
In the incident on 1 November 2011 the applicant suffered a fracture to the left elbow and an associated injury to the triceps attachment to the olecranon.
In relation to the injury to the left elbow on 1 November 2011 the applicant came under the care of Dr Graeme MacDougal who carried out a repair to the triceps attachment on
30 November 2011.
After the incident on 1 November 2011 the applicant was unfit for work until 3 February 2012 and returned to work on suitable duties until 27 April 2012.
At the time of the incident on 1 November 2011 the applicant was working on modified work duties and had been performing those modified duties since 2010 because of his knee problems.
The injury sustained by the applicant on 1 November 2011 was accepted by the insurer of the respondent as being a separate compensable injury arising out of or in the course of employment with the respondent but not as a consequential injury to the injury to the right knee on 14 November 2008.
The applicant was paid lump sum compensation under s 66 and s 67 of the WorkersCompensationAct1987 (the 1987 Act) pursuant to a Complying Agreement dated
2 April 2012 in respect of an agreed 15% whole person impairment (WPI) resulting from the alleged injuries to the left and right lower extremities (knees).
The payment of lump sum compensation in April 2012 appears to have been based upon a report by Dr Bodel at that time although that report did not form part of the evidence in the present proceedings.
The applicant’s solicitor gave notice of a claim for further s 66 benefits on 27 July 2021 relying upon a report of Dr Bodel dated 22 July 2021 with an attached supplementary report of the same date. The claim was based on an assessed 44% WPI which was based on assessments of impairments involving each of the right and left lower limb.
The claim made on 27 July 2021 did not include any component for WPI as a consequence of the condition to the left elbow although the report by Dr Bodel did include an examination and assessment of the left elbow. In his report Dr Bodel noted “He has had the other injuries to the shoulders and elbows which are not specifically related to the knees, based on the history given here today”.
It appears that following receipt of the claim for further benefits under s 66 of the 1987 Act made on 27 July 2021 the insurer of the respondent arranged for the applicant to be assessed by Dr Richard Powell (Dr Powell) who had previously seen the applicant in 2012, 2017 and 2020.
In his report from 2020 which was dated 12 October 2020 Dr Powell had received a history that the applicant had sustained an injury to the left elbow in a fall around 2011 when his right knee gave way. At that time the applicant also appears to have advised Dr Powell that liability for the left elbow injury had been accepted which Dr Powell seems to have interpreted as the respondent had accepted the left elbow injury as a consequential condition of the right knee injury.
In his report of 12 October 2020 Dr Powell assessed the applicant as having a 21% WPI which assessment included 2% WPI as a consequence of the left elbow condition.
As noted at paragraph 23 above following receipt of the claim for further benefits under s 66 of the 1987 Act on 27 July 2021 Dr Powell again examined the applicant with the examination taking place on 15 December 2021.
Dr Powell’s report following that examination was dated 1 February 2022 and assessed a 10% WPI for each lower extremity.
In a supplementary report dated 7 March 2022 Dr Powell combined his assessments of each lower extremity using the Combined Values Chart and AMA5 to provide a total assessment of 19% WPI.
No assessment is given in Dr Powell’s report dated 1 February 2022 nor in the supplementary report dated 7 March 2022 of any WPI as a consequence of injury to the left elbow although Dr Powell does refer to “a concurrent claim for a left upper limb injury” in the report of 1 February 2022. I am unsure what Dr Powell meant by his reference to a concurrent claim.
It appears that after receipt of the medical report and supplementary report of Dr Powell dated 1 February and 7 March 2022 respectively the solicitors for the respondent made an offer of settlement under cover of a letter dated 8 March 2022. The offer was to pay the applicant s 66 benefits for a further 4%WPI (on the basis that the applicant had already been paid for a 15% WPI).
While the exact sequence of events is unclear it seems that the applicant’s solicitors sought a further clarification and supplementary report from Dr Bodel . A report from Dr Bodel dated 3 June 2022 referred to an email dated 3 May 2022 which included a copy of a report from Dr Powell which assessed a 2% WPI for injury to the left elbow. I assume that the report to which Dr Bodel referred is the report of Dr Powell dated 12 October 2020 referred to above which had come into the possession of the solicitors for the applicant.
In his supplementary report Dr Bodel advised that he assessed the applicant as suffering from a 3% WPI as a consequence of the left elbow condition and a 46% WPI overall. That assessment of course included allowances for impairment of both the lower extremities and the left upper extremity.
Following receipt of Dr Bodel’s supplementary report dated 30 June 2022 the applicant’s solicitor made a claim dated 4 July 2022 on the applicant's behalf for benefits under s 66 of the 1987 Act based on a WPI of 46%.
By a notice dated 20 July 2022 given under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the insurer of the respondent denied the claim made by the applicant’s solicitor on 4 July 2022.
The notice under s 78 of the 1998 Act confirmed that the claimed injury to the right knee and consequential condition of the left knee were accepted although the quantum of the claimed impairments resulting from the injuries to the knees and quantum of any entitlement under
s 66 of the 1987 Act remained in dispute. The claimed consequential condition of the left elbow was specifically denied.
The applicant sought a review of the decision however the respondent’s insurer maintained the dispute giving a notice under s 287A of the 1998 Act on 19 August 2022.
By an Application to Resolve a Dispute (the Application) filed in the Personal Injury Commission (the Commission) the applicant seeks lump sum compensation under s 66 of the 1987 Act on the basis of a claimed 46% WPI which includes a claimed WPI as a consequence of the alleged consequential condition of the left elbow.
The Reply to the Application to Resolve Dispute (the Reply) filed by the respondent disputes that the applicant suffered any injury to the left elbow on 14 November 2008 and also disputes that the injury to the left elbow on 1 November 2011 was a consequential injury arising out of the accepted injuries to the right and left knees. The Reply also disputes the quantum of the sum claimed pursuant to s 66 of the 1987 Act and the degree of WPI.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant on 1 November 2011 suffered a consequential condition involving the left elbow in addition to the accepted injury to the right knee sustained on 14 November 2008 and accepted consequential condition of the left knee;
(b)    the extent of any WPI arising out of the injuries sustained on 14 November 2008 including any consequential condition or conditions, and
(c)    the quantum of any entitlement under s 66 of the 1987 Act.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    the Reply and attached documents, and
(c)    Application to Admit Late Documents and attachments (AALD) filed on
20 February 2023 admitted in the interests of justice and in accordance with the criteria listed in cl 28 of Procedural Direction PIC3 and there being no objection to its admission by the applicant.

Oral evidence

No oral evidence was called at the arbitration hearing.

FINDINGS AND REASONS

At the commencement of the arbitration the counsel for each of the applicant and respondent agreed that only issue requiring determination by myself as the Member of the Commission was whether the applicant on 1 November 2011 suffered an injury to the left elbow that was a consequential condition to the accepted injury to the right knee sustained on
14 November 2008 and accepted consequential condition of the left knee. Once that issue was determined, it was agreed that the matter would need to be referred to a Medical Assessor to determine the extent of any resulting WPI and consequent entitlement to lump sum compensation under s 66 of the 1987 Act.
The submissions of Mr Carney counsel for the applicant could perhaps (and without intending oversimplify same) be summarised as being that the applicant gives a credible version of the events surrounding the injury to the left elbow as set out in the applicant’s unsigned statement apparently dated 28 March 2022[1] and that the contemporaneous records and subsequent histories to doctors were either consistent with that version of events or not inconsistent with that version of events. It was submitted that on that basis I should be satisfied on the balance of probabilities that the injury to the left elbow was a consequential condition flowing from the earlier knee injury.
[1] Application page 4.
The version of events as set out in the statement at page 4 of the Application is in the following terms;
“When returning to my vehicle, I could not make out the curb [sic] and gutting [sic] as both surfaces are the same natural colouring. Due to the colour and with the afternoon sun glare in my vision, I did not see the change in ground level and my right knee gave way with the sudden step down. My left elbow and shoulder took the full force of the fall.”
Mr Gaitanis, counsel for the respondent, in his submissions correctly pointed out the importance of contemporary evidentiary material, the need to properly consider the nature of the contemporary evidence and the applicant’s responsibility to persuade the Commission on the balance of probabilities. Again without intending to oversimplify the submissions made by Mr Gaitanis he essentially submitted that at the time of the applicant’s fall on
1 November 2011 there was no evidence of significant problems with the right knee that may have made a fall from the knee giving way likely and there is no evidence of any injury to the knee being sustained in the fall.
He further submitted that the applicant had advanced three different versions of events and I was being asked to speculate which one was correct. Mr Gaitanis then essentially argued that the evidence in the case was most consistent with the proposition that the applicant tripped and fell because of the effects of glare and not as a consequence of the right knee giving way.
It appears to be common ground between both the applicant and respondent that the applicant fell when his vision was impaired by sun glare compounded by the similarity of colouring of the different surfaces where he fell. The issue between the parties is whether the applicant’s knee injury played any part, and if so what part, in the fall.
The case is a little unusual in that the respondent has accepted liability for the injury to the left elbow and has paid weekly compensation and medical benefits to the applicant for the injury. The respondent has however always treated the left elbow injury as a separate claim.
At first glance a number of factors in the case may explain why the respondent would doubt the claim that the injury to the left elbow was a consequential condition to the accepted injuries to the right and left knees.
Those factors could include considerations such as the lateness of the claim by the applicant of a consequential condition involving the left elbow giving rise to a further component of the WPI assessment and lump sum benefits under s 66 of the 1987 Act. In that regard it appears that the first time the applicant made such a claim was after the applicant’s solicitors had received a report of Dr Powell dated 12 October 2020 served by or on behalf of the respondent’s insurer.
The applicant made a claim for lump sum compensation in 2012 and a claim for further lump sum compensation on 27July 2021 . As far as I can tell from the evidence neither claim referred to a consequential condition involving the left elbow and resulting impairment to the left upper extremity. It seems that it was Dr Powell’s report dated 12 October 2020 that alerted the applicant’s solicitors to the possibility of such a claim even though it seems
Dr Powell’s comments were based on an incorrect understanding of the position in relation to the acceptance of the claim.
A second factor is the apparent absence of a history of the knee giving way on
1 November 2011 in contemporaneous documents. From the respondent’s point of view it could seem that the first it heard of the allegation of a consequential condition where the right knee gave way was some 11 years after the event, in circumstances where the applicant was seeking to recover lump sum compensation that would otherwise not be payable given the level of WPI resulting from the left elbow injury.
The question for the Commission is whether the evidence as a whole supports the version of events as set out in the statement of the applicant dated 28 March 2022 and whether I am satisfied on the balance of probabilities that version of events is correct.
A worthwhile starting point in the evidence are the reports of Dr Powell who has examined the applicant on a number or occasions commencing in July 2012.
Although not all of the reports prepared by Dr Powell are in evidence those that do provide useful observations of the applicant and also contain a number of histories of the injury sustained on 1 November 2011.
The earliest report in terms of dates is dated 10 May 2017.[2] In the report Dr Powell noted:
“It was difficult to obtain a detailed history from Mr Bullen in relation to his left elbow and bilateral shoulder injuries. He could not recall the date of injury of the left elbow though it appeared to be around 2011.
Mr Bullen indicated that he was required to change the hygiene bins in the ladies toilets and was stepping off the kerb when his right knee gave way, causing him to fall.”[3]
[2] Reply page 3.
[3] Reply pages 4 and 5.
The above history was given to the respondent’s doctor at a time when there was no claim for lump sum compensation being made in relation to the left elbow condition and was given at a date some five years before such a claim was made.

In a subsequent report dated 12 October 2020 and which related to an examination on
26 August 2020 Dr Powell recorded a history in relation to the left elbow injury in the following terms;
“Mr Bullen sustained an injury to his left elbow in 2011,when he fell at work. He alleged the fall was as a result of his right knee giving way.”[4]
[4] Reply page 11.
The history given to Dr Powell in October 2020 was again given when no claim for lump sum compensation for impairment resulting from a left elbow injury on 1 November 2011 had been made by the applicant and was well prior to such a claim being made.
Dr Powell in the report of 12 October 2020 also noted in relation to the applicant,
“Mr Bullen was a compliant and cooperative patient throughout the taking on the history and examination. There was no suggestion of overreaction or exaggeration.”[5]
[5] Reply page 12.
The applicant was again examined by Dr Powell on 15 December 2021 and that examination was the subject of a report dated 1 February 2022.[6]
[6] Reply page 18.
In relation to the examination Dr Powell noted as follows;
“Mr Bullen was a most compliant and cooperative patient throughout the taking of the history and examination. There was no suggestion of overreaction or exaggeration.”[7]
[7] Reply page 20.
Dr Powell has had the advantage of examining the applicant on a number of occasions over the years and has consistently found the applicant to be credible and compliant at the time of his examinations. Dr Powell has also obtained a history from the applicant of an injury to the left elbow caused by the right knee giving way at a time when no claim for lump sum compensation was being made in respect of that elbow condition.
The histories to Dr Powell do not appear to be ones of recent invention with a view to financial gain and are given by a patient that Dr Powell otherwise finds “compliant and cooperative” with no suggestion of “overreaction or exaggeration”.
As Mr Gaitanis submitted the contemporaneous records have great significance in a case such as this and need to be given appropriate weight.
The first document in time that deals with the circumstances of the fall on 1 November 2011 is the Discharge Referral from Mona Vale Hospital dated 1 November 2011[8] which simply recorded a history of “Fell today whilst at work. Hit his left elbow point on”. There is no mention or description of the cause of the fall.
[8] Application page 43.
The next document of relevance is a Workcover NSW Medical Certificate also dated
[9] Reply page 64.
1 November 2011.[9] In the section of the document marked “How the injury occurred” it simply records “Fall onto L side – pain L shoulder and elbow”.
The third document in time that relates to the fall and injury of 1 November 2011 is an incident report prepared by a David Weng from the respondent dated 2 November 2011. That incident report details the injury happening in the following terms;
“Worker was walking near a curb [sic], when the light of the pavement , being the same colour and glare of the surface caused him to miss place [sic] his footing. As a result he fell and fractured his left elbow.”[10]
[10] AALD page 1.
There is no mention in the incident report of the right knee giving way but the description of the other factors such as the glare and the similarity of the surfaces is consistent with the applicant’s statement of 28 March 2022.
The fourth contemporaneous document in time is a report of Dr Graeme MacDougal
(Dr MacDougal) dated 4 November 2011. Dr MacDougal is the applicant’s treating doctor and in his report addressed to Dr J Eccles the referring general practitioner Dr MacDougal recorded the following,
“He gives a history of while at work on 1 November 2011 he tripped on the curb(sic) and guttering and fell heavily forward onto his flexed left elbow.” [11]
[11] Reply page 65.
The treating general practitioner Dr John Eccles provided a Workcover Medical Certificate dated 7 November 2011 where in response to the item “How the injury occurred” the doctor recorded “fell whilst carrying bins striking Lt upper limb”.[12] The description of injury in the certificate of 7 November 2011 was (not surprisingly) repeated in a subsequent Workcover NSW Medical Certificate from the same doctor dated 8 November 2011.[13]
[12] AALD page 2.
[13] Reply page 70.
A further certificate from Dr Eccles dated 8 December 2011 made no mention at all of the mechanism of injury.[14]
[14] Reply page 71.
The next chronological document in evidence setting out a history of the injury to the left elbow is an Injury Management Plan dated 22 November 2011 prepared by a Ms Tahlia McDonald. Under the heading “Injury Description” the author recorded “Lost footing near kerb and fell over”.[15]
[15] Reply page 67.
On 19 March 2012 the applicant was seen by Kelli Jovanovski Rehabilitation Consultant from imac Injury Management & Assessment Centre who provided a report of the same date.
That report dealt with an assessment of the applicant’s then work capacity and dealt with his overall health and capacity taking into account his various injury and health issues.
In relation to the event of the left elbow injury on 1 November 2011 Ms Jovanovski recorded as follows under the heading “Injury History”,
“Mr Bullen provided a brief history of his injury, treatment and rehabilitation to date. This information was reported as follows:
Mr Bullen reported he sustained an injury to his left elbow on 1^ST November 2011. He reported at approximately 2.30pm, he stepped off a concrete gutter on to the road when he tripped. He described landing quite heavily on his left arm which he had extended to break his fall.”[16]
[16] Reply page 52.
The evidence in the case does not reveal any further versions of the history of injury on
1 November 2011 until Katrina Burnham OHS and Injury Management Officer provided a report dated 10 September 2012.
That report is headed Examination for Fitness to Continue Duty – Robert (Robbie) Bullen and provides a fairly comprehensive history of injuries and illnesses that the applicant had suffered or was suffering from at the time of preparation of the report including but not limited to the applicant’s problems with his knees and his left elbow and shoulder.
In relation to the left elbow injury Ms Burnham recorded the following history of the injury,
“Mr Bullen was attending to the toilet facilities at West Head and was walking back to his car close to the roadside curb [sic]. Mr Bullen reported that he was walking west into the sun and the glare caused him to miss his footing on the curb [sic], and he fell onto his elbow.”[17]
[17] Application page 51.
Accordingly the documentary evidence in the case reveals that some 10 documents dated from 1 November 2011 to 10 September 2012 prepared by doctors, hospitals, rehabilitation providers and an officer of the respondent fail to record any mention of the right (or indeed either knee) being a cause of the fall on 1 November 2011.
It must be noted however that most of those documents appear to approach the recording of the history of injury in a fairly short form fashion. Even the more comprehensive version recorded by Ms Jovanovski in her report of 19 March 2012 is noted as being brief.
In my view it is also the case that the precise details of the mechanics of the fall causing injury are unlikely to have been sought – it was patently clear that the applicant had fallen and details of the the cause of the fall are unlikely to have been sought in granular detail as those details would not have been relevant to diagnosis or treatment.
It should also be noted that the versions recorded by Mr Weng and Ms Burnham are consistent with the first part of the statement of the applicant dated 28 March 2022 where he refers to the sun’s glare and the similarity of the surfaces as being factors in causing his fall. The addition of a history of the right knee giving way at the same time is not inconsistent with the other versions of the event.
The most significant piece of evidence in the matter is the next chronological medical report in the documentary evidence being a report of a Dr Guillermo Ruggeri dated
18 October 2012 (page 26 of the ARD) and is headed “PERSONAL AND CONFIDENTIAL EMPLOYEE HEALTH ASSESSMENT AND REPORT”.[18]
The report is addressed to Ms Burnham as the OHS and Injury Management Officer of the employer and was apparently prepared following an examination to assess the applicant’s fitness for continued employment.
[18] Application page 26.
Dr Ruggeri’s report commences at page 26 of the Application and includes histories of the applicant’s various injuries and other health problems.
In that report Dr Ruggeri recorded the following history of the injury to the left arm (I note that the copy on the file is difficult to read and a clearer copy was provided in the course of the arbitration),
“Towards November 2011 he states that his right knee gave way and he fell onto the left side of his body fracturing his left elbow specifically the tip of the olecranon.”[19]
[19] Application page 28.
The history obtained by Dr Ruggeri of the right knee giving way as being the cause of the applicant’s fall on 1 November 2011 was given in circumstances where the significance of the history in terms of a lump sum compensation claim would not have been understood and where there was no apparent incentive to manufacture a version of events. Further it was given to a doctor being retained by the employer and was a history given less than 12 months after the event when the injury occurred.
On 23 July 2014 the applicant was seen by a Dr Ian Smith (Dr Smith) at the request of the case manager of the insurer of the respondent for the purposes of an injury management assessment. Dr Smith provided a medical report of the same date where he recorded a history in relation to the then present knee problems which included the following:
“He can’t squat, kneel or pivot. He has become somewhat bow legged and has to walk with a wide stanced [sic] gait very slowly. Occasionally his right knee has given way. A fall in 2011 resulted in an avulsion fracture of his left elbow which required the above noted surgery.”[20]
[20] Application page 55.
Dr Smith does not specifically record that the fall in 2011 was caused by the right knee giving way however even if the report is unclear on that issue it does confirm a history of the right knee giving way over an extended period of time and certainly suggests that a fall in 2011 could have been caused by the knee giving way. Dr Smith’s history of the right knee giving way over an extended period of time is not otherwise challenged in the evidence.
Dr Smith, similarly to Drs Powell and Ruggeri, was retained by the respondent or its insurer.
In his submissions Mr Gaitanis appeared to argue that the evidence suggested that the applicant was not suffering from a significant problem with the right knee sufficient to account for the fall on 1 November 2011 pointing to the fact that the applicant was doing a job (emptying bins) that obviously both the applicant and the employer thought he was capable of performing and there was no immediate complaint about problems with the knee either before or after the accident.
I do not agree with that submission and in my view the evidence available is consistent with the proposition that the applicant was suffering with significant knee problems at the time of the incident on 1 November 2011.
The Discharge Referral from Mona Vale Hospital dated 1 November 2011 records the applicant as suffering bilateral knee OA (osteoarthritis) at that time.[21]
[21] Application page 43.
When seen by Ms Jovanovski on 19 March 2012 the applicant described his degenerative knee condition as the main reason he could not return to full duties[22] and Ms Jovanovski recorded the applicant as “using a walking stick which he holds in his right hand”.
[22] Application page 53.
When assessing the applicant’s physical abilities Ms Jovanovski noted in relation to a report item “Walk(uneven surfaces)” that the applicant was “Unable to walk unsupported due to (unrelated) knee injuries unless in familiar area”.[23]
[23] Application page 55.
In relation to the applicant’s ability to carry it was noted that the applicant could not carry greater than 20kg and in relation to weights less than 20kg he could “only carry up to 5kg using a single arm (as the other arm was required to hold on to walking stick)”.[24]
[24] Application page 55.
The report of Ms Burnham of 10 September 2012 records that the applicant had been on permanently modified duties since October 2010 and that there had been a progression of deterioration of the knees since being put on modified duties.[25]
[25] Application page 52.
Having regard to the totality of the evidence I am satisfied on the balance of probabilities that at the time of the incident on 1 November 2011 the applicant was suffering significant problems in the knees in particular the right knee with instability in the right knee.
I note that the respondent relies upon the report of Dr Powell dated 12 July 2022[26] where
Dr Powell expresses the following opinion:
“I have reviewed the additional information provided. The contemporaneous evidence provided indicates that the most likely explanation or event [sic] surrounding the left elbow injury occurring on 1/11/11 was that it was the result of him misjudging the kerb whilst his vision was distorted by the sun glare and falling resulting in direct injury to the left elbow rather than this being a consequential injury relating to the previously accepted right knee condition.”[27]
[26] Reply page 27.
[27] Reply page 28.
I do not find that opinion persuasive. Dr Powell does not indicate what contemporaneous material he had reviewed and there is no indication whether the totality of the material before me was provided to the doctor. No proper basis for the opinion is established.
Further Dr Powell provides no reasoning in his opinion. It appears as a bare ipse dixit of the type which found disfavour with the Court of Appeal in the matter of Makita (Australia) Pty Ltd v Sprowles.[28] In particular there is absolutely no comment on whether the right knee could have contributed to the fall when the applicant’s vision was impacted by the sun glare causing a misstep.
[28] (2001)NSWCA305.
I am satisfied on the balance of probabilities that the correct version of the events of
1 November 2011 is that set out in the applicant’s statement dated 28 March 2022 namely that when returning to his vehicle he could not properly make out a change in surface levels due to the effects of the glare of the sun and the similarity of the surfaces colouring and that his right knee gave way when he stepped down suddenly due to the change in levels. It was the knee giving way that ultimately lead to the fall causing the fracture of the left elbow and associated tear of the triceps attachment.
It is my view that the version of events set out above best fits with the available evidence of a man with a significant knee disability with uncontested evidence of it giving way on occasion. It is also consistent with the applicant giving a history to doctors retained by the respondent or its insurer of a fall where his knee had given way in circumstances where there would have been absolutely no reason to manufacture such a history.
Accordingly I find that the applicant sustained a consequential condition to the left elbow when he fell on 1 November 2011 when his right knee gave way.

SUMMARY

The applicant suffered a consequential condition to his left elbow when his right knee gave way on 1 November 2011.

[2023] NSWPIC 109

16 March 2023