Coulter v Labour Solutions Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Coulter v Labour Solutions Australia Pty Ltd [2024] NSWPIC 511
APPLICANT:	Rhonda Coulter
RESPONDENT:	Labour Solutions Australia Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	16 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to left knee and resultant scarring; whether lumbar spine was injured in a frank incident or was a consequential condition; inconsistent reporting of injury and other possible explanations for applicant’s lumbar spine condition including mechanical injuries post injury which were not disclosed to qualified doctors thereby preventing assessment in fair climate; Held – not satisfied the applicant discharged the onus of proof with regards to claim of injury or consequential condition to the lumbar spine; award for the respondent with respect to the lumbar spine.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a left knee injury and resultant scarring in the course of her employment on 13 October 2016. 2. Award for the respondent on the claim for injury to the lumbar spine. 3. The matter is otherwise remitted to the President for referral to a Medical Assessor for assessment of permanent impairment arising from the following: Date of injury: 13 October 2016. Body system: left lower extremity (knee), and skin/scarring (Temski). Method of assessment: whole person impairment. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 3 May 2022, Ms Coulter (the applicant) claimed lump sum compensation under the Workers Compensation Act 1987 (the 1987 Act) for impairment to the left knee, skin (scarring) and lumbar spine said to arise out of injury sustained in the course of her employment with Labour Solutions Australia Pty Ltd (the respondent) on 13 October 2016.
The insurer accepted liability for the left knee and skin condition but declined liability for any injury (discrete or consequential) to the lumbar spine. Further, it declined to make an offer of settlement in response to the lump sum claim (for the left knee and scarring) as its qualified opinion resulted in an assessment below threshold.
This prompted the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission). Following conciliation impasse, the parties requested I determine the issue of liability with respect to the lumbar spine following which the impairment dispute was to be referred to a Medical Assessor.
At arbitration the applicant was represented by Mr Hickey of counsel instructed by
Mr Coorey. The respondent was represented by Mr Stiles of counsel instructed by
Ms Wrigley. Ms Leneve was the insurer representative.
The only issue for determination is whether the applicant sustained an injury (either discrete or consequential) to her lumbar spine arising out of events on 13 October 2016.
In the course of decision making I had regard to the voluminous documents attached to the ARD and the Reply (in excess of 3,200 folios) along with submissions by counsel. No oral evidence was given.

EVIDENCE

Applicant’s evidence

In her statement dated 14 August 2017, the applicant describes the mechanism of injury on 13 October 2016, that is, she was shoved by a coworker whilst leaving the factory and lost her balance (she did not fall). In the process she grabbed a handrail with her left hand to stop herself falling and twisted her left knee feeling immediate pain.[1] (Submissions and file review confirmed this is the applicant’s only statement in these proceedings. I note it is now seven years old and pre dates her total knee replacement).
[1] Folio 3 of the ARD.
The only reference to back symptoms is found in paragraph 27 of the statement where it is disclosed:
“I find that my pain increases if I stand for long, sit for long or walk for long. I avoid lifting anything such as walking up and down stairs and have felt increased pain in my low back which is an aggravation of a previous injury I had while nursing.”
As indicated, extensive medical records were produced which on close examination confirmed the undisputed pre-existing complaints to the lumbar spine. It is not possible and nor necessary to identify each instance of pre existing complaint recorded for the lumbar spine, particularly given this fact is uncontested. However, I will outline relevant entries that have a bearing on liability in this matter and were addressed by counsel.
The First Contact Notification of Injury form confirms the applicant notified her employer of the injury on 17 October 2016 and recorded “strain- possible meniscus tear – left knee- Twisted knee whilst walking down stairs”.[2] There is no report of back complaints.
[2] Folio 5 of the ARD.
Canterbury Hospital notes confirm the applicant presented on multiple occasions but relevantly on 24 March 2016[3] complaining of chronic low back pain and antalgic gait.
[3] Folio 860 of the ARD.
The notes also confirm presentation on 6 October 2016 (seven days prior to injury) complaining of lower back pain which was severe after doing some shopping on
[4] Folio 874 of the ARD.
6 October 2016.[4]
A further presentation to the Emergency Department is recorded on 18 October 2016[5] (five days post injury), relevantly; (unedited)
[5] Folio 800 of the ARD.
“Tripped over dog and fell down stairs 11pm last night
Landed on right hip and hit head but denies LOC
Stabbing pain in right buttock
Uncomfortable sitting and walking
Pins and needles in the right leg
Left ankle feels hot
No bladder or bowel changes
Reports this is her 3^rd fall in a matter of days
Hurt knee in first fall – GP prescribed Panadeine Forte, but still in pain.
Says she has been blacking out for about 2 mins- unwitnessed
Says that this has been an ongoing issue throughout her life
Has a chronic back condition – has been admitted to Canterbury and Fairfield
?disc degeneration
…Impression – back pain due to mechanical fall”
Clinical notes produced by the regular general practitioners (mainly Dr El Skafi) at the United Medical Centre reveal an extensive history of lower back pain commencing in 2014 when the applicant sustained an injury during the course of her employment as a nurse when a 200kg patient fell on top of her.
On 19 October 2016 (six days post injury) Dr El Skafi recorded:
“she had a recent mechanical fall and reviewed at the hospital. Discharged home on panadeine forte and endone - Lower back pain and coccyx pain stable with pain killers
Able to walk steady on her feet - x-rays done at ED – NAD - she is keen to go back to work to support herself as centrelink is not paying her anymore… awaiting to see physiotherapy Canterbury hospital next month”[6]
[6] Folio 873 of the ARD.
Careful review of the file reveals that the applicant did not inform her regular general practitioner of her knee injury that occurred only six days earlier.
As regards the pleaded injury(ies), the applicant first presented herself to Dr Tony Antoun (who I understand was the respondent’s ‘company doctor’ on 25 October 2016, (12 days post injury)).[7] His Initial Certificate of Capacity records the date of injury as being
[7] Folio 1339 of the ARD.
[8] Folio 1339 of the ARD.
13 October 2016. The mechanism of injury was recorded as “walking down steps and shoved, twisted on left knee, sudden pain”.[8]
Certificates continued to be issued along the same lines until 6 October 2017 when
[9] Folio 1363 of the ARD.
Dr Antoun altered the diagnosis to “left knee – meniscal tear/fall – back / possible discogenic irritation”.[9] The reason for the introduction of ‘possible discogenic irritation’ is not clear on the face of Dr Antoun’s certificate, who appears to be unaware that the applicant presented Dr El Skafi just two weeks earlier with back complaint unrelated to employment.
Relevantly, Dr El Skafi on 22 September 2017,[10] recorded (unedited):
“has been moving furniture
No injury involved
Seemed to be doing hard work
Some limitation in flexion and extension at the end of full range.
Reason for contact
Fall – sudden
Back pain with radiculopathy
IDDM (insulin dependent diabetes mellitus – not compliant with – sprain right forearm.”
[10] Folio 866 of the ARD.
Global review of the clinical notes reveals the applicant has fallen on a number of occasions post injury in private circumstances including on 8 January 2017, 12 April 2017,
10 May 2017, 28 June 2017, 10 August 2017, 25 September 2017, 12 October 2017,
[11] Folio 769 of the ARD.
[12] Folio 318 of the ARD.
[13] Folio 317 of the ARD.
[14] Folio 316 of the ARD.
[15] Folio 314 of the ARD.
[16] Folio 313 of the ARD.
[17] Folio 313 of the ARD.
[18] Folio 342 of the ARD.
1 November 2018. The notes do not make reference to back complaints as a result of these falls and are silent on whether the falls were due to knee instability or other factors. [11], [12], [13], [14],[15],[16],[17],[18].
As indicated the notes record the many presentations relating to back pain in 2014, 2015, 2016 and 2017. Some presentations were without any precipitating events, others were prompted by mechanical episodes such as tripping over her dog (18 October 2016)[19] moving furniture (22 September 2017),[20] and after being thrown to the ground and ‘assaulted by police’ on 12 April 2019.[21]
[19] Folio 800 of the ARD.
[20] Folio 866 of the ARD.
[21] Folio 303 of the ARD.
Dr Numuk Alkhateeb, in his report dated 21 April 2014[22] confirmed a 15 year history of back pain when a “200kg” patient fell on her back. Pain was recorded as 7/10 but could be 10/10 with any activity such as bending, pushing, lifting and reaching. At presentation she was recorded to be taking 20mg of MS Contin twice daily and had previously taken Endone and Valium for symptoms relief. Oxycontin was recommended. Epidural injection was recommended. The diagnosis was a “protruded disc at the lower lumbar spine”. It was reported “I think the lower back pain has interfered grossly with her function and quality of life”. Neurosurgical opinion was recommended.
[22] Folio 883.
The applicant has qualified Dr Conrad for the purposes of this claim. In his report dated
14 April 2022 he records the history of the accident which is consistent with the applicant’s statement. There was no mention of back pain at the time of the injury, nor a fall. As regards present symptoms he reported:
“she has ongoing back pain, which was preexisting the present accident, but made worse by her irregular gait. The back pain radiates into both legs. She denies any other body parts were injured in the fall… [23]
…this precipitated the need for a left knee replacement operation. In the accident, she also caused an increase pain to her previous injured back and continues to have increased back pain…”[24]
[23] Folio 37 of the ARD.
[24] Folio 38 of the ARD.
In his supplementary report dated 27 May 2022, Dr Conrad, on review of clinical notes confirms the extensive pre-existing history of chronic back problems, but fails to record the trip over the dog and the assault by police, matters that resulted in presentation to the Emergency Department at Canterbury Hospital. As a result he has not assessed how those frank and mechanical incidents have contributed to the applicant’s claimed pathology in the lumbar spine. He also appeared to be unaware that the applicant complained of antalgic gait well prior to the injury as recorded by Canterbury Hospital on 24 March 2016. (As an aside, Dr Conrad recorded he had reviewed about 100 pages of clinical notes,[25] which indicates to me that he has not been provided with the full records of the treating general practitioner, which extend over 470 folios, the clinical notes of Canterbury Hospital, extending over 265 folios, and the notes of Dr Antoun which extend over 290 folios). (His views on causation are inconsistent, which I will address further below).
[25] Folio 42 of the ARD.

Respondent’s medical evidence

Dr James Powell reported on 13 January 2017 and 13 January 2023.
In his initial report[26] (just four months post injury), it was recorded that:
“On 16 October 2016, Ms Coulter was coming down some stairs leaving work. She was carrying a backpack, but did not have very much in it.
Someone shoved her from behind and she lost her balance, grabbed the rail and twisted on her left knee.
She did not fall”
[26] Folio 1548 of the Reply.
On 13 January 2023,[27] he reported the applicant told him that she fell down stairs, landing on concrete on her flexed knees and both hands. He recorded the applicant told him that she had grazing and discomfort in the right knee and both hands which resolved quickly and have not troubled her since, but left knee symptoms continued. (Dr Powell noted the inconsistency in the mechanism of injury from those described at her earlier presentation to him in 2017 where there were no “areas of symptoms other than the left knee”).
[27] Folio 1790 of the Reply.
In the same report he recorded that in 2017 the applicant did not inform him of any previous injury or symptoms involving the lumbar spine and she denied any previous injuries, illnesses or operations. At the 2023 presentation he recorded complaints of lower back pain in the mid to lower lumbar region which radiated into the lower limbs at times and into the buttock area on bending, twisting and lifting. He diagnosed multi level spondylosis, with canal stenosis, reporting that prognosis was guarded and that the multi level disease and symptoms suggested claudication in the lower limbs with fluctuating muscular control (likely a source of her falls). Overall, he considered that the condition was degenerative in nature and constitutionally related.
In conclusion he reported:
“I did not include assessment of the lumbar spine in relation to the workplace incident as this condition did not relate to this incident and the patient gave no history of any influence of this on her established lumbar disease or any substantial contributing from her previous work as a nurse. The single incident of 30 years ago does not provide a satisfactory explanation for subsequent development of a fairly common condition.”[28]
[28] Folio 1793 of the Reply.

Submissions

Submissions on behalf of the applicant were;
(a)    there is no dispute the applicant has a long standing history of back pain;
(b)    the pre-existing chronic problems in the lumbar spine were either aggravated in the fall or alternatively the result of altered gait arising from the significant knee injury and knee replacement on 5 September 2018;
(c)    it is probable the applicant would have continued to experience her severe chronic back pain without the injury; however, symptoms have increased as a result of the left knee injury and its surgery, now properly a consequential condition, and
(d)    the applicant has discharged her onus in regard to causation with reference to the factual and medical history and with reference to the common sense test.
Counsel for the respondent submitted;
(a)    there is a significant history of chronic back pain which the applicant has failed to disclose correctly to the various qualified specialists;
(b)    the applicant sustained an injury to the back on 19 October 2016, only six days post accident where she tripped over a dog. There is no evidence in the hospital notes that the fall was due to her knee condition;
(c)    the applicant has not established that she has suffered a discrete injury nor a consequential condition to the lumbar spine and Dr Powell’s opinion should be preferred;
(d)    Dr Antoun did certify the applicant as having possible discogenic irritation as a result of work injury but he had not been informed about the trip over the dog just six days post injury which required presentation to the Emergency Department at Canterbury Hospital;
(e)    the applicant’s statement is now seven years old and contains no history on whether she suffered an injury to her back either on the day of the accident (which would be inconsistent with the incident report in any event) nor does it describe the development of any consequential condition;
(f)    claims in relation to ‘altered gait’ do not surface for the purposes of this litigation until the applicant qualified Dr Conrad, although there is reference to antalgic gait in the hospital notes as early as March 2016;
(g)    none of the qualified opinion considers the history of the trip over the dog (six days post injury), or the assault by police on 12 April 2019 which reportedly caused back pain. It follows Dr Conrad has been deprived the opportunity of presenting an assessment in a fair climate;
(h)    the applicant has a long history of multiple falls. The cause of the falls is unknown, were reported as occurring at least two years prior to her knee injury; continued thereafter; are a ‘lifelong issue’ and there is a dearth of medical evidence relating to the impact of these falls on any spinal issue;
(i)    there is no medical evidence to decipher that any back complaint is due to altered gait (which was in fact preexisting the workplace injury) or a result of the non-work related falls, and
(j)    the applicant has failed to discharge her onus.

APPLICATION OF THE LAW, FINDINGS AND REASONS

The definition of injury is found in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, authorities demonstrate:
(a)    in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[29] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[30] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b)    the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[31](Kooragang) and
(c)    the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities. I must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[29] [2000] NSWCC 12; 19 NSWCCR 496.
[30] (2003) 25 NSWCCR 422, at [429].
[31] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
(At [55]).

What does main contributing factor mean?

In this case, it is alleged the lumbar degenerative disease was aggravated by the incident on 13 October 2016. Section 9A of the 1987 Act provides that no compensation is payable unless employment was/is a substantial contributing factor to the injury (except in disease cases) where it must be established that employment was the main contributing factor to injury. Whilst the definition of main contributing factor is not defined in the 1987 Act, DP Snell in AV v AW at [76]-[78] succinctly stated:
“76. Where the relevant aggravation involves both employment and non employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
• (a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
• (b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall; it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
• (c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
In the alternative, the applicant has claimed her lumbar spine symptoms are consequential to her left knee injury particularly due to altered gait. When assessing whether the lumbar spine condition is a ‘consequential condition’ to the left knee injury, authorities establish the following principles (but by no means are they exhaustive):
(a)    the 1987 Act does not define a ‘consequential’ condition;
(b)    the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities;[32]
[32] Loxton v Vines and March v Streamer(E & MH) Pty Ltd [1191] HCA 12; (1991) 171 CLR 506.
(c)    each case must be determined on its own facts;
(d)    it is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act;[33]
(e)    in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions;[34]
(f)    a finding of a consequential condition does not require the identification of pathology;[35]
(g)    a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(h)    reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(i)    there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(j)    it is not necessary the applicant prove she suffered an injury to her lumbar spine; all she needs to demonstrate is that the symptoms arise from the accepted left knee injury;
(k)    the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury,[36] and
(l)    the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition.[37]

Did the applicant suffer an aggravation of a disease injury to her lumbar spine or a consequential condition to the lumbar spine?

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

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

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

[36] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.

[37] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).

Overall, I am not satisfied that the applicant has suffered an identifiable pathological change in her lumbar spine as a result of any employment. I am further not convinced that symptoms in the lumbar spine became worse as a result of his employment activities.    This is because;
(a)    the original incident report (a contemporaneous document) recorded the applicant sustained a twisting injury to the left knee and that symptoms were confined to the left knee;
(b)    only six days post injury, the applicant tripped over her dog and suffered ‘mechanical back complaint’ severe enough to prompt presentation and treatment at Canterbury Hospital;
(c)    the applicant failed to inform Dr Antoun of this fall when she first consulted him on 25 October 2016, about two weeks later, and
(d)    the medical and factual evidence does not demonstrate an ‘injury simpliciter’ or aggravation to the lumbar spine arising out of workplace events on
13 October 2016.
I also find the applicant has not established that she suffered a consequential condition to the lumbar spine arising out of her left knee injury. This is because;
(a)   I find the opinion of Dr Conrad unpersuasive. He initially suggested injury to the spine occurred as a result of the events on 13 October 2016 but then reports symptoms arise out of altered gait. There is no rationale provided for either opinion;
(b)    Dr Conrad’s opinion does not provide cogent reasoning to support the pleaded proposition the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process to the lumbar spine where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. His theory of back pain being aggravated by altered gait, is arguable but unfortunately, he was not privy to the multiple other mechanical back injuries sustained by the applicant, for example when she tripped over the dog just six days after her workplace injury or when she was assaulted by police and that she had reported antalgic gait in March 2016.   I accept his history (which is supported by the clinical notes) that the applicant has suffered multiple falls.   However, the cause of the falls is unclear.   The clinical notes show that the applicant has had ‘black outs’ and falls for many years prior to this injury, recorded as a ‘lifelong’ problem. There is no evidence to establish the falls arose from instability in the left knee either prior to or post knee replacement and I am careful to note that the complaint of consequential condition to the spine was not pleaded to arise from these falls but rather altered gait. It is not implausible the applicant may have an altered gait arising from her left knee replacement but the impact of the subsequent non work related falls, which resulted in medical presentation to both hospital and treating doctors, coupled with treatment, along with pre injury complaints of antalgic gait have not been considered in the medical opinion before me, thereby resulting in an incomplete clinical picture;
(c)    further, I conclude the opinion of Dr Conrad, at best is “ipse dixit”. It is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd[38] (Paric); Makita (Australia) Pty Ltd v Sprowles[39] (Makita); South Western Sydney Area Health Service v Edmonds[40] (Edmonds); and Hancock v East Coast Timbers Products Pty Ltd[41] (Hancock); that there must be a “fair climate” upon which a doctor can base an opinion. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr Conrad has done in this matter in relation to the lumbar spine.   I am not critical of Dr Conrad, who appears not to have been furnished with a complete history of mechanical back injuries post 13 October 2016;
(d)    I note Dr Antoun has recorded aggravation of back complaints which he seemed to suggest has arisen from the workplace injury, but he, much like Dr Conrad had not been given a full history of falls impacting the back at the time he made that diagnosis, nor the history of previous antalgic gait (at least six months prior to the injury) and so his opinion does not assist the applicant, as it too, is not arrived at in a ‘fair climate’;
(e)    I acknowledge authorities indicate care should be taken not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga;[42] and applied in Mastronardi v State of New South Wales.[43] I cannot ignore the applicant has informed Dr El Skafi of her back pain and subsequent mechanical injuries during her general medical presentations to his practice, (such as pain after shopping, pain after moving furniture, the trip over the dog and assault by police), yet has failed to keep Dr Antoun informed (who was managing her workers compensation claim). I do not know the reason for this and my speculation will not advance the matter, but clearly this accounts for
Dr Antoun’s assumption the back symptoms were globally the result of her workplace injury, and
(f)    I have weighed the evidence of the applicant together with other objective evidence and/or the absence of it: Department of Education and Training v Ireland.[44] Having done so, and for the reasons stated above, I acknowledge that there were sporadic complaints of back pain post the knee injury, but these were not initially related to employment activity. As time passed, Dr Antoun suggested that there may have been lumbar irritation, a matter relied on by counsel for the applicant, however I find that he made such a diagnosis without knowledge of the intervening events and did not have a full history of her pre-existing condition.
[38] Paric v John Holland (Constructions) Pty Ltd [1985] HCA.
[39] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[40] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
[41] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
[42] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[43] Mastronardi v State of New South Wales [2009] NSWCA 270.
[44] Department of Education and Training v Ireland [2008] NSWCCPD 134.
For these reasons, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction (Nguyen), that the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of any disease process in her lumbar spine within the meaning of s 4(b)(ii) of the 1987 Act arising out of or in the course of her employment with the respondent as claimed.
Further, I find that on a common-sense basis (Kooragang), the applicant has not established that she has suffered a consequential condition to her lumbar spine arising from the accepted injury to her left knee. In so finding, I have carefully considered the medical opinions in this matter, which I have concluded were not established in a ‘fair climate’. The applicant has been selective in her reporting of history, which has deprived those treating and assessing her in understanding the complete clinical picture particularly the impact of back injuries following the workplace events on 13 October 2016 and the pre-existing antalgic gait. I have not disregarded the submissions of counsel, that the applicant suffered falls as a result of instability arising from the knee, and the knee replacement more likely than not caused altered gait, however, I find these submissions are unsupported by the evidence globally.

SUMMARY

For these reasons, I find the applicant has not discharged her onus in establishing either an injury or consequential condition to the lumbar spine and so I make the orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 511

16 September 2024