Del Caro v Transport for NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Del Caro v Transport for NSW [2025] NSWPIC 181
APPLICANT:	Silvia Del Caro
RESPONDENT:	Transport for NSW
MEMBER:	Adam Halstead
DATE OF DECISION:	30 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33 and for medical expenses pursuant to section 60; Held – frank injury to left knee found to have arisen from falling; alternatively left knee condition was a disease injury contracted from the nature of duties; left wrist injury consequential to left knee collapsing; respondent liable for left knee and left wrist conditions; weekly compensation payable; general order for medical expenses related to those injuries.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant injured her left knee in the course of employment on 9 July 2022. 2. Alternatively, the applicant contracted a disease injury in her left knee while performing duties for the respondent over many years, where her employment was the main contributing factor. 3. The applicant’s left wrist was injured on 11 May 2023 as a consequence of her left knee injury and its collapse that caused her to fall to the ground. 4. General order pursuant to s 60 of the Workers Compensation Act 1987 for medical and related treatment expenses for the left knee and left wrist injuries. 5. Within 14 days of the date of this determination, the parties have liberty to apply for this matter to be restored for further conference on the issue on pre-injury average weekly earnings and weekly compensation payable. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Silvia Del Caro, had been employed by the respondent, Transport for New South Wales, since 2005, including most recently as a train guard. While travelling in the guard’s compartment of a moving train on 9 July 2022, the applicant lost balance as the train swayed and she fell forward onto the guard’s chair. She experienced pain in her left knee when it contacted the ground during the fall. A claim was made for weekly compensation and expenses associated with medical treatment related to injury of the applicant’s left knee. Liability for the injury is disputed by the respondent.
On 11 May 2023, the applicant fell onto the ground while shopping, injuring her left wrist. She asserts that fall and injury was caused by her left knee collapsing. Compensation was also claimed by the applicant on the basis her left wrist injury was consequential to the left knee injury. That claim is also disputed by the respondent.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 27 November 2024 that initiated these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was before the Commission for arbitration hearing on 20 March 2025.
Mr McManamey of counsel, instructed by Ms Panju of Turners Freeman Lawyers, appeared for the applicant, who was also present. The respondent was represented by Mr Jones of counsel, instructed by Ms Dunn of BBW Lawyers.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues for determination by the Commission are whether the applicant:
(a)    received a frank injury to her left knee at work on 9 July 2022;
(b)    contracted a disease injury to her left knee in the course of employment, and
(c)    has a consequential condition to her left wrist form any work-related left knee injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply lodged by the respondent and attachments (Reply).
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

The parties request the Commission determine whether the respondent is liable for the applicant’s left knee injury and whether her left wrist injury was a consequential condition.

Left knee

The applicant contends work-related left knee injury on two bases, the primary being that she received a frank injury to her left knee at work on 9 July 2022 when she fell in the guard’s compartment of a moving train. In the alternative, she argues the nature and conditions of her work over many years of employment with the respondent resulted in a disease injury of the left knee.
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) is relevant and provides that an injury must have arisen out of, or occurred in, the course of employment for compensation to be available. Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury.
The applicant bears the onus of establishing her case of workplace injury on the balance of probabilities with reference to s 4 of the Act: Department of Education and Training v Ireland [2008] NSWCCPD 134.
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (at 429). The Commission has consistently applied this meaning to injury: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), with Roche DP observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change”
The applicant’s primary contention is about frank injury to her left knee when she fell at work on 9 July 2022. Although the event is undisputed, the cause of the pathology related to the injury is not. Examination is therefore required about whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s left knee.
In her 6 January 2023 statement, the applicant said:[1]
[1] ARD p 1.
“…
7. I suffer pre-existing left knee arthritis. However, I was asymptomatic, and I worked full time. I had no mobility issues or challenges with my knee.
Circumstances of Injuries
8. On 9 July 2022, at approximately 10:12 pm, I was travelling towards Casula on a Waratah train.
9. Whilst the train was moving, I stood up to answer an emergency call from a passenger. The train began to sway, and I lost my balance and fell onto the guards’ chair in front of me.
10. When I fell, my left knee landed firmly on the ground.
11. I felt immediate pain and it took some time for me to stand up.
12. On 10 July 2022, I reported mu injury to the Injury Hotline.
…
42. Prior to injuring myself, I worked full time and had no mobility issues or challenges with my knee.”
The applicant attended her treating general practitioner (GP) on 10 July 2022 for an initial consultation about the 9 July 2022 incident regarding the left knee pain and then again on
17 July 2022 for follow-up when referral for diagnostic investigations was made. An MRI scan of the applicant’s left knee was conducted on 20 July 2022 and the related report of
Dr Ramesh Cuganesan considered there to be present:[2]
“Undisplaced vertical oblique tear of posterior horn of medial meniscus.
Osteoarthritic change in the medial compartment.
Mild quadriceps tendinosis and retropatellar chondromalacia.
Small knee joint effusion.”
[2] ARD p 122.
The applicant qualified Dr Jonathan Herald, orthopaedic surgeon, to provide independent medical examination opinion about her left knee. Dr Herald noted in his 30 November 2022 report that the applicant had “no knee problems prior to this accident” other than “intermittent episodes of knee pain however nothing serious enough to require any treatment”.[3] He opined that her arthritis was “moderate in nature” and that she had “diagnostic features consistent with an acute flare-up of underlying osteoarthritis of her knee from a medical meniscal tear”, which he attributed to the workplace incident on 9 July 2022.[4] The applicant’s “underlying osteoarthritis” in her left knee had “been generally quite manageable” according to Dr Herald.
[3] ARD p 40.
[4] ARD p 41.
In a supplementary report of 4 December 2023, Dr Herald again acknowledged the applicant’s pre-existing osteoarthritis that had been “documented in the records for some period of time” and that her meniscal tear may have been degenerative, but the tear was a result of workplace injury on 9 July 2022. In his subsequent report of 13 March 2024,
Dr Herald considered:[5]
“I still believe that employment is a substantial contributing factor in the flareup of her underlying osteoarthritis of her knee. I now have further imaging that I did not have previously, but even though she did have some mild degenerative changes in 2013 and arthritis is part of ageing, the flareup of the osteoarthritis of her knee and the progression to the point where a knee replacement is required has only occurred following her workplace injury dated 9 July 2022 … If not for that, it is more than likely that she would have continued to slowly develop degenerative arthritis into the future and not required the knee replacement as soon as she would have otherwise.”
[5] ARD p 48.
The respondent qualified Associate Professor Paul Miniter, orthopaedic surgeon, to conduct an independent medical examination of the applicant. In a 27 October 2022 report, he diagnosed “significant medial and patellofemoral osteoarthritic change of the left knee” and opined:[6]
“The available evidence would suggest that the small episode at work in July 2022 is not the main contributing factor to her current presentation. There is clear evidence of pre-existing pathology. She may have aggravated this pathology but I could see no evidence that it continues.”
[6] Reply p 28.
Although the condition was identified as “pre-existing”, Associate Professor Miniter nonetheless accepted the applicant “probably has aggravated for a short period of time” but that aggravation had ceased.[7] In his later report of 2 November 2023, the meniscal tear was considered to have been “part of the degenerative process” given there were “no acute features on the scan which was performed at the time after her injury”.[8] Despite having earlier conceded an aggravation of a pre-existing condition may have occurred, Associate Professor Miniter seems to have resiled from that position in his later report given he could by then “see no evidence of aggravation of a pre-existing condition” but if there had been then it had “long since ceased”.[9]
[7] Reply p 29.
[8] Reply p 21.
[9] Reply p 23.
The submissions made by the respondent in essence reflect the view of Associate Professor Miniter. The applicant had a pre-existing left knee problem for a considerable period prior to the incident on 9 July 2022 and it was that underlying condition, rather than anything that occurred on that date, which is the real cause of the issue.
There is support for the respondent’s contention in the clinical records history for the applicant. Many references to discussion and treatment of left knee pain appear in GP notes of consultations. Indeed, a month before the fall incident, the applicant consulted her GP on 10 June 2022 and reported knee pain, as also occurred on 15 March 2022.[10] While those notes do not specify that it was the applicant’s left knee discussed, it has not been contended by her that it was otherwise, and it is accepted that was the case. There are specific references to left knee pain, including for referral to obtain an X-ray in January 2022.[11] There is no doubt the applicant had pre-existing problems with her left knee that by all accounts was the result of osteoarthritis, which is undisputed.
[10] Reply pp 50 – 51.
[11] Reply p 55.
In his report of 6 September 2022, the applicant’s treating orthopaedic surgeon at the time, Associate Professor Viswanathan, identified probable “pre-existing pathology in her knee” where the 9 July 2022 injury “aggravated her arthritis”. It was noted that prior to the injury “she did not have any issues with her knee and was able to fulfil her duties”. The report clearly takes into account the underlying arthritis and applicant’s prior work ability. It was further noted the applicant was “functioning quite well prior to her injury”. This is entirely consistent with the applicant’s evidence that:[12]
“The osteoarthritis present in my left knee did not interfere with my daily life and if I did experience pain or discomfort, I would either report it to my GP or take some anti-inflammatory medication.”
[12] ARD p 6 at [14].
Something of significance occurred on 9 July 2022 that caused functional restriction to the applicant’s left knee. Notwithstanding she had osteoarthritis in her left knee, prior to that event she was able to mobilise and function as required in employment with the respondent. The GP notes of 10 June 2022 do not include any reference to the applicant being functionally limited despite pain. The applicant’s submission that left knee pain was an intermittent complaint is supported by the available clinical notes evidence. That is, she had knee pain, it was sporadically problematic, but she was able to function. That changed after
9 July 2022 when her left knee symptoms became “constant rather than intermittent” as
[13] ARD p 44.
Dr Herald explained.[13]
A report of Dr MD Saiful Choudhury regarding an MRI scan taken on 6 October 2017 commented that while there was osteoarthritis present then, a meniscal tear was not identified. Although some years prior, that investigation established there was no evidence of any tearing, whether that state continued up to the time of the 9 July 2022 incident is not known for certain.
Associate Professor Miniter considered the meniscal tear as being “part of the degenerative process” whereas Dr Herald thought while that degenerative factors were present, it was more likely to have arisen from the 9 July 2022 fall. I accept Dr Herald’s view to be more likely in the circumstances.
Dr Herald took into account the nature of the underlying arthritic condition on the applicant’s left knee and the change in symptomatology, including the change from an intermittent to constant presence. He also identified the point at which that occurred, being the subject incident. Dr Herald addressed the continuation of symptoms in his later reports. I accept the submissions made by the applicant that Associate Professor Miniter failed to adequately address those issues. Moreover, he did not explain the reason the symptoms of what was said to be an aggravation of an underlying condition that he considered to have “ceased” at the time of the first examination, were continuing at the time of the second examination more than a year later. There was also no sufficient consideration of those symptoms not having been present to the same constant extent prior to the 9 July 2022 incident.
The evidence establishes to my reasonable satisfaction that the applicant sustained a frank injury to her left knee on 9 July 2022 when she fell onto it at work and there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of that knee. The effect was immediately known to the applicant, she sought assistance from her GP at the next available opportunity. It was thereafter on-going and constant. There may have been an underlying arthritic condition, however a new injury is more likely than not to have arisen as a result of the fall. The definition of injury at s 4(a) of the 1987 Act is satisfied accordingly.
The applicant’s alternative argument on s 4(b) of the 1987 Act has also been considered in the event I am not correct on the aforementioned. Section 4(b)(i) of the 1987 Act provides that a disease that is contracted by a worker in the course of employment is ‘disease injury’ if employment was the main contributing factor.
The applicant contends the nature of her working conditions as a train guard were the main factor that caused osteoarthritis in her left knee. Her 19 August 2024 statement evidence outlines in detail the requirements of her job.[14] Extensive walking (including over uneven surfaces such as railway ballast), squatting, climbing into and out of train carriages, balancing and bracing herself on moving trains and various other motive tasks were inherent to the role and regular.
[14] ARD p 9.
Referring the nature of her work, treating orthopaedic surgeon, Dr Fred Nouh, considered in his 12 March 2024 report that the applicant’s “employment was a substantial contributor to her developing osteoarthritis symptoms in her knee”.[15] Treating GP, Dr Morgan Mo, expressed his opinion in a report of 28 August 2024 that the applicant’s 9 July 2022 left knee injury occurred “in the background of 18 years of physical work as a Train Guard” and that the “repetitive physical nature of her work was the main contributing factor to the deterioration of her knee condition”.
[15] ARD p 59.
Although somewhat concise, those opinions are reasonable given the type of work in which the applicant engaged. It is not in dispute that the work undertaken by the applicant over many years was labour intensive and required the frequent and extended use of her legs and knees while at work.
The medical opinion establishes on balance that the nature of the applicant’s physical work was a cause of her arthritis. Although there are evidently some other potential contributing factors, such as her excess weight, it is the case that the applicant underwent periodic workplace medical assessments throughout those years and was cleared for duty on each occasion.
In the circumstances, the applicant’s work is more likely than not to be the main factor that contributed to the osteoarthritis condition in her left knee and so that condition is accepted as a disease injury for the purposes of s 4(b) of the 1987 Act.

Left wrist

The applicant bears the onus of proving her left wrist condition is consequential to an accepted injury and I have determined her left knee condition to be such an injury. The relevant test for causation was stated by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates,[16] which is that the Commission must apply commonsense to determine causation.
[16] Kooragang Cement Pty Ltd v Bates (1994) 10 NSW CCR 796.
In Kumar v Royal Comfort Bedding Pty Ltd,[17] Roche DP found that it is unnecessary for an applicant to satisfy a requirement of having suffered injury for the purposes of s 4 of the 1987 Act for a consequential condition to be found. This means the applicant is not required to satisfy the definition of “injury” as set out in s 4 of the 1987 Act.
[17] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8.
In Moon v Conmah Pty Limited,[18] there was an agreed compensable injury to the right shoulder which was claimed to result in a consequential condition to the left shoulder. Roche DP set out the requirements to establish a consequential condition: [19]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder in the meaning of that term in section 4 of the 1987 Act. All he needs is to establish that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Kumar, they asked the wrong question.”
[18] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
[19] Moon at 45.

It is also unnecessary for specific pathology to be identified when finding a consequential condition exists,[20] however there must be an unbroken chain of causation from the accepted injury to the development of the consequential condition. Although it would appear to be clear in this case, the applicant is nonetheless not required to prove injury to her left wrist, only demonstrate that her left wrist symptoms arise from her accepted injury, that is, the left knee.
[20] Kumar at 55.
According to Roche DP in Drca v KAB Seating Systems Pty Ltd[21] (Drca), for an applicant to succeed in a claim for compensation, the Commission need be satisfied that on the balance of probabilities of the facts that establish the claim. In relation to the applicant’s claim, this means he needs to establish that it was more probable than not that the left wrist condition resulted from the accepted left knee injury. I am required to have a ‘feeling of actual persuasion’ the applicant has met this onus: Nguyen v Cosmopolitan Homes.[22]
[21] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.
[22] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
It is undisputed the applicant fell and broke her left wrist on 11 May 2023. Her evidence is that:
“3. On 11 May 2023, I was exiting a retail shop, Infinite Soul located at Unit 4, 11 Patrick Street, Campbelltown NSW 2560.
4. This shop used to be a medical practice and there is a ramp at the front of the entrance.
5. There is no railing that effectively stops anyone from all falling as they travel down the ramp.
6. As I was travelling down this ramp to leave the shop, I lost my balance due to the weakness in my left knee.
7. I fell and braced my fall with my left arm. I suffered a fracture to my left wrist.
…”
She subsequently underwent surgery to correct the fracture. Her account of the event is reflected in a contemporaneous GP note of Dr Tuan Tran of 13 May 2023 wherein it was recorded that the applicant’s left “knee started to give way and [she lost] her balance and fell and she tried to stop her fall with her left hand”.[23]
[23] Reply p 38.
The respondent referred to the hospital admission notes and that those do not contain reference to the applicant’s left knee giving way, presumably as being an indication of some different cause for the fall. Those notes, as far as is relevant, state:[24]
“shopping
turned
fell put out hand to avoid falling on knee – arthritis
pain to left wrist
…
closed injury
…
smiths fracture”
[24] Reply p 1381.
Those notes were made for the purposes of treatment in an accident and emergency department of the hospital. They are necessarily brief to address the important background and as such are not expected to contain anything more than what was essential. Clearly the applicant raised her knee as being a concern when she fell. The fact it was not recorded that the applicant’s knee gave way or something similar is not considered to be of any consequence in the circumstances. There is nothing in those notes that contradicts the applicant’s recitation of the event.
In his 27 October 2022 report to the respondent, Associate Professor Miniter considered that he “fear[ed] that her knee may give way, and this could give rise to a much more significant injury”.[25] It seems precisely such an event occurred on 11 May 2023 when the applicant’s knee did “give way”, resulting in her falling onto her left wrist causing it to fracture.
[25] Reply p 28.
Adopting a commonsense approach, I am satisfied that it is more probable than not the applicant’s left wrist condition resulted from the accepted left knee injury because that knee collapsed causing her to fall. Accordingly, I am persuaded that the applicant has met the required onus to establish she has suffered a consequential condition to her left wrist because of the accepted injury to her left knee.

Medical and related treatment expenses

The respondent accepts that if the applicant were found to be entitled to an award for compensation in relation to her left knee then corrective surgery would be reasonably necessary. Given I have found both her left knee injury and left wrist condition arise from employment, a general order will now be made pursuant to s 60 of the 1987 Act for medical and related treatment expenses for those.

Procedural matters

There was insufficient material available for submissions to be made on the applicant’s pre-injury average weekly earnings or weekly compensation entitlement. The parties therefore indicated an intention to confer on those issues after this determination on liability. In the event agreement cannot be reached, an opportunity to bring the matter back before the Commission was sought. It is appropriate to provide such an opportunity to ensure any continuing dispute between the parties is fully and finally resolved. Accordingly, the parties are given liberty to apply for the proceedings to be restored within 14 days.

SUMMARY

The applicant received a left knee injury at work on 9 July 2022 when it contacted the floor of a train carriage. In the alternative, her left knee developed a disease injury from the nature of her employment. The applicant’s left wrist was injured when she fell onto the ground after her left knee collapsed. Her left wrist injury arose as a consequence of the work-related knee injury. She is entitled to receive weekly compensation and treatment expenses in relation to those injuries.

[2025] NSWPIC 181

30 April 2025