Devenish v Kizlock Pty Ltd

[2022] NSWPICPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Devenish v Kizlock Pty Ltd [2022] NSWPICPD 22

APPELLANT:

Michael Devenish

RESPONDENT:

Kizlock Pty Ltd

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-W3580/21

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

10 June 2022

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 14 October 2021 is revoked and the following findings and orders are made in its place:

(a)   The applicant suffered an injury in the form of an aggravation of a pre-existing lumbar spondylolisthesis as a result of a fall on or about 26 November 2017.

(b)   The fall occurred as a consequence of the appellant’s accepted injuries to his left knee on 2 July 2010 and on 14 September 2012.

(c) Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the costs of and incidental to the lumbar laminectomy and L5/S1 level fusion performed by Associate Professor Mark Davies on 7 June 2018.

CATCHWORDS:

WORKERS COMPENSATION – acceptance or rejection of expert evidence not the subject of contrary expert opinion – Wikiv Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 applied – absence of contemporaneous complaints – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – error in the fact-finding process Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – requirement for expert medical opinion Strinic v Singh [2009] NSWCA 15 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr M Boulton, counsel

RMB Lawyers

Respondent:

Mr G Young, counsel

Hall & Wilcox Lawyers

DECISION UNDER APPEAL
MEMBER:	Mr N Read
DATE OF MEMBER’S DECISION:	14 October 2021

INTRODUCTION AND BACKGROUND

1. Mr Michael Devenish (the appellant) suffered undisputed left knee injuries on 2 July 2010 and 14 September 2012 in the course of his employment with Kizlock Pty Ltd (the respondent). Liability for the injuries was accepted by the respondent. Following increased symptoms in the knee, the appellant underwent surgery in the form of a total left knee replacement on 7 November 2017.

2. The appellant alleged that after the surgery, he experienced left knee instability which caused him to fall on 26 November 2017, resulting in an aggravation of his pre-existing lumbar spine pathology. He underwent a lumbar laminectomy and fusion at the L5/S1 level of the spine at the hands of Associate Professor Mark Davies, neurosurgeon, on 7 June 2018.

3. The appellant claimed compensation for the costs of and incidental to the surgery on the basis that the fall which caused his lumbar pathology to become symptomatic was caused by the left knee condition. The respondent denied the claim on the basis that the lumbar symptoms were not consequential to the left knee injury and the fall.

4. The appellant commenced proceedings and the matter proceeded to arbitration before a non-presidential member of the Personal Injury Commission (the Commission). The Member issued a Certificate of Determination, finding that he was not satisfied that the appellant had suffered an injury to his back in the fall and thus the treatment expenses sought by the appellant were not compensable.

5. The appellant appeals that decision.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Both parties indicate that they are content for the appeal to be determined on the basis of the documents and their submissions. I have had regard to the Commission’s Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The appellant’s statement

1. The appellant provided a statement dated 6 August 2021.[1] He described the injuries to his left knee on 2 July 2010 and 14 September 2012. He said that he was reviewed by Associate Professor Leo Pinczewski, orthopaedic surgeon, in 2017 because of worsening symptoms. He said that A/Prof Pinczewski recommended surgery in the form of a total left knee replacement, which took place on 7 November 2017. He advised that following the knee surgery, he walked with a heavy limp and tenderness in the knee, which he said was difficult to straighten. He added that he commenced physiotherapy on 17 November 2017.

   [1] Application to Resolve a Dispute (ARD), pp 1–3.

2. The appellant stated that about two weeks after the knee surgery, he was walking out of the door in his home when the left knee gave way. He said he stumbled and fell, landing heavily on his left side. The appellant advised that his main concern was whether he had re-injured his knee, but he also experienced pain in his back, buttocks, thighs, calves and feet. He said he had previously experienced “niggling” back pain over the years but had not sought any treatment.

3. The appellant advised that he initially reported the fall to his physiotherapist, Mr Brady Warren, on 27 November 2017, at which time his knee was “hyper-flexed” and very sore. He said that in the weeks that followed, his knee settled with physiotherapy, but his back pain became progressively worse. The appellant said that by December 2017, his back pain was so bad that he could not walk more than 200 metres or stand for longer than a few minutes.

4. The appellant stated that he ultimately reported his back pain to his general practitioner, Dr David Grant, on 19 December 2017, and told A/Prof Pinczewski on 20 December 2017 about the fall, his back pain, and lateral knee pain. The appellant described the back pain he was experiencing at that time as right sided and worsening, which prompted him to report the symptoms to Mr Scott Muttdon, physiotherapist, who commenced treatment for his back in addition to his left knee. The appellant said that he further reported back pain to the physiotherapist on 20 February 2018, at which time he was having difficulty entering and alighting his car because of the pain. He added that on 27 April 2018, he reported to Dr Grant that his back had been troubling him since the left knee surgery and he was experiencing severe pain in the left side of his back. He said that Dr Grant referred him for scans, including a CT scan of his lumbar spine. He added that by 1 May 2018, he was experiencing spasms down the left side of his back and had difficulty walking up stairs and standing still.

5. The appellant advised that Dr Grant referred him to A/Prof Mark Davies, neurosurgeon, who he consulted on 31 May 2018. A/Prof Davies recommended surgery and on 7 June 2018, he performed a fusion of the appellant’s lumbar spine. The appellant said that he was reviewed by A/Prof Davies on 10 December 2018, and A/Prof Davies was satisfied that he was doing well. The appellant said, however, that between then and March 2019, he continued to suffer from significant low back pain and pain in the left leg, accompanied by pins and needles down both legs if he sat for long periods.

6. The appellant explained why he failed to request approval from the respondent for the lumbar surgery. He said he was not aware that his back injury and the treatment provided would be considered part of his claim for his left knee.

The medical evidence

1. Not all of the medical evidence adduced is relevant to the issues the Member was required to determine or the issues raised in this appeal. The following summary is limited to a review of the medical evidence relied upon by the parties and pertinent to the appeal.

Dr David Grant, general practitioner

1. The appellant’s general practitioner, Dr David Grant, practised from the Kiama Medical practice. The clinical notes from that practice were in evidence, commencing in 2001.[2] The appellant attended the clinic regularly with various complaints, including shoulder injuries, knee injuries, a thoracic injury, coccyx pain and depression.

   [2] ARD, pp 39–74.

2. On 30 September 2008, the appellant presented to the surgery complaining of a painful tailbone. Dr Grant noted that the appellant was very tender over the coccyx. The appellant attended for review on 2 October 2008, when Dr Grant noted:

   “Still exquisite pain to palpation. end of coccyx. probably just coccydynia as bloods, Xray NAD

   need scan for anterior slip L5 on S1 in future.”[3]

   [3] ARD, p 47.

3. The next relevant entry was dated 19 December 2017, when the appellant attended Dr Grant complaining of having twisted his left knee two weeks previously when he force flexed it, causing him to fall down.[4] The appellant attended Dr Grant in respect of the left knee on 19 January 2018 and 14 February 2018. On 27 April 2018, the appellant complained to Dr Grant that his “back has been playing up for last few months really since operation,” and he had chronic back pain in the left lower lumbar region. Dr Grant arranged for diagnostic imaging and noted that the appellant experienced catching in his left low back, which was worse since the total knee replacement. He also noted “severe pain” and “known spondylolisthesis at L5/S1.”[5] In an entry on 1 May 2018, Dr Grant again noted that the appellant had experienced a lot of low back pain since the total knee replacement.[6]

   [4] ARD, p 71.

   [5] ARD, pp 71–72.

   [6] ARD, p 72.

4. Dr Grant referred the appellant to A/Prof Mark Davies, neurosurgeon, on 1 May 2018. In the letter of referral, Dr Grant referred to the appellant’s long standing persistent low back problems following a motor vehicle accident in 1979. He indicated that since the total knee replacement in 2017, the appellant had been experiencing increased low back pain, particularly on the left side and accompanied by occasional spasming.[7]

   [7] ARD, pp 18–19.

The BaiMed Physiotherapy clinical notes

1. The BaiMed Physiotherapy centre notes commenced from 13 November 2017.[8] Initially the treatment was directed to therapy following the total knee replacement.

   [8] ARD, pp 75–106.

2. On 27 November 2017, the appellant reported that he had slipped and fallen the night before, jamming his knee in a flexed position, and that the knee was very sore.[9] The appellant attended for five further physiotherapy treatments in respect of his left knee only from that date up to and including 3 January 2018 and was treated by Mr Brady Warren, physiotherapist. During that time, it was noted that the appellant’s left knee condition was improving.

   [9] ARD, p 81.

3. On 10 January 2018, Mr Scott Muttdon, physiotherapist, recorded that the appellant complained of soreness in the right side “LSP also today without MOI.”[10] On 19 January 2018, Mr Muttdon relevantly recorded “LSp pain unsettled” and “PHx: LSP spondylolisthesis.”[11] On the next visit (23 January 2018), Ms Kirra Laughlan, physiotherapist recorded that the appellant’s “back much improved and then woke up sore this am ?did some lifting and pool work yesterday ?over did it.”[12] Ms Laughlan further recorded on 25 January 2018 that the appellant had enjoyed ongoing improvement, and that he performed some lifting at work the day before without an issue.[13] On 6 February 2018, she noted that the appellant was still experiencing a light twinge in the back.[14] The appellant attended Ms Laughlan again on 8 February 2018, 13 February 2018 and 15 February 2018, receiving treatment for soreness in his back.[15]

   [10] ARD, p 88.

   [11] ARD, p 89.

   [12] ARD, p 90.

   [13] ARD, p 91.

   [14] ARD, p 92.

   [15] ARD, pp 94–96.

4. On 20 February 2018, Ms Laughlan noted that the appellant hurt his back while getting out of his car about six days before and had been fairly immobile since then because of significant pain. She recorded that the appellant could not assist his daughter around her house over the weekend but was feeling better since the day prior to the appointment.[16] On 23 February 2018, Mr Warren noted ongoing lower back pain which was improving every day.[17] On 28 February 2018, Mr Chris Jaffrey, exercise physiologist at the same practice, noted that the appellant’s lumbar spine was “not as irritated after general tasks.”[18]

   [16] ARD, p 97.

   [17] ARD, p 99.

   [18] ARD, p 100.

Associate Professor Pinczewski

1. On 20 December 2017, A/Prof Pinczewski reported to Dr Henry Nowlan, general practitioner, in respect of the appellant’s progress following the left knee replacement.[19] A/Prof Pinczewski indicated that the appellant had been doing well until he suffered a heavy fall two weeks prior to the consultation. He noted that the appellant had suffered a set-back in his recovery from the left knee surgery and that the appellant complained of increased lateral knee pain.

   [19] ARD, p 15.

2. A/Prof Pinczewski discussed the result of x-rays taken of the left knee and advised that the fall had caused no ongoing damage. He discussed the proposed future treatment program and his positive expectations in respect an improvement in the appellant’s knee symptoms.

Associate Professor Mark Davies, neurosurgeon

1. Dr Grant referred the appellant to A/Prof Mark Davies for an opinion and management of the appellant’s back condition. A/Prof Davies reported to Dr Grant on 31 May 2018.[20] He took the history that the appellant had experienced:

   “intermittent non disabling back and leg pain for years. Since December 2017 the pain has been severe affecting the back, buttocks, thighs, calves and feet. He is now unable to walk more than 200 metres or stand for more than a few minutes, without having to sit for relief.”[21]

   [20] ARD, pp 22–23.

   [21] ARD, p 22.

2. A/Prof Davies performed a physical examination and reviewed the radiological investigations. He provided a diagnosis of bilateral L5 radiculopathy and isthmic Grade 3 L5/S1 spondylolisthesis. He considered non-operative interventions and discussed surgery in the form of a lumbar laminectomy and spinal fusion. He reported that the appellant wished to proceed to surgery, which was scheduled to take place on 7 June 2018.

3. A/Prof Davies provided further reports in respect of the appellant’s ongoing treatment and post-surgery recovery.

4. On 24 May 2019, A/Prof Davies provided what was described as a “medico-legal” report at the request of the appellant’s solicitors.[22] He repeated the history of the development of back pain recorded in his report dated 31 May 2018. He confirmed the initial findings on examination, the review of the radiological examinations and the diagnosis he provided in that report, as well as the appellant’s progress following surgery.

   [22] ARD, pp 29–31.

5. A/Prof Davies referred to further information provided to him by the appellant’s solicitors in their letter to him dated 3 April 2019, which included the history of the appellant having fallen heavily on his left side on 26 November 2017. He also noted that the appellant subsequently noted back pain and worsening left and right leg pain which was different to the prior left knee pain.

6. A/Prof Davies formed the view that there was a definite causal link between the knee injury, the need for knee replacement surgery, the fall shortly after the knee surgery, and the development of the spinal symptoms. He discussed the appellant’s spinal pathology and said that the onset of symptoms in respect of such pathology is often precipitated by an injury such as a fall, and in the appellant’s case such a fall would be sufficient to render the spondylolisthesis symptomatic.

7. A/Prof Davies explained how such a fall could generate excessive movement in the spine and result in the onset of nerve pain, which, he said, commenced following the fall and was subsequently addressed by spinal surgery. He added that it was not inevitable that the appellant would have developed symptoms without the fall and there was a clear relationship between the appellant’s fall and the development of previously asymptomatic spondylolisthesis. A/Prof Davies provided a prognosis in respect of the appellant’s back condition.

Dr Matthew Giblin, orthopaedic surgeon

1. Dr Matthew Giblin was also asked to provide a medico-legal opinion by the appellant’s solicitors. He provided a report dated 15 April 2019.[23] Dr Giblin took a history of the appellant’s left knee injuries and subsequent treatment. He took a further history that, about two weeks after the total knee replacement, the appellant was walking out of the door of his home when his left knee caused him to stumble and fall, re-injuring his knee and hurting his back. Dr Giblin said that the appellant’s main concern at that time was his knee but over the following months the knee improved and the back worsened.

   [23] ARD, pp 32–36.

2. Dr Giblin recorded that the appellant sought treatment for his back from his general practitioner, who ultimately referred the appellant to A/Prof Davies. Dr Giblin described the treatment provided to the appellant and his progress. He reviewed the radiological investigations in respect of both the left knee and the lumbar spine. He recorded that there was no past history of “this or a similar problem.”[24]

   [24] ARD, p 34.

3. Dr Giblin was of the opinion that the appellant’s injuries were “consistent with the accident described.”[25] He added that the appellant had suffered further injuries over the years, including an injury to the appellant’s back when his left knee caused him to fall, resulting in an aggravation of the appellant’s pre-existing spondylolisthesis.

   [25] ARD, p 36.

4. Dr Giblin provided a further report dated 28 May 2019 in response to correspondence from the appellant’s solicitors.[26] Dr Giblin reproduced the appellant’s solicitor’s queries. He indicated that he believed that the appellant’s left knee replacement materially contributed to the appellant’s lumbosacral condition. He observed that it was not uncommon for a knee to occasionally give way following a replacement and that the fall aggravated the appellant’s left knee condition and hurt the appellant’s back. Dr Giblin opined that the fall causing injury to the back led to the need for spinal surgery. He added that with or without the knee surgery, injured knees can occasionally give way.

   [26] ARD, pp 37–38.

5. Dr Giblin further opined that the surgery performed by A/Prof Davies on 7 June 2018 was reasonable and necessary and, for the reasons expressed, the surgery was connected to the knee injuries the appellant sustained in 2010 and 2012.

Dr Raymond Wallace, orthopaedic surgeon

1. Dr Raymond Wallace provided several forensic medical reports at the request of the respondent. The first report was dated 24 October 2016 and was in reference to an assessment of the appellant’s left knee injuries.[27] The history provided was limited to the left knee injuries, and, in respect of the appellant’s past history, Dr Wallace relied upon an earlier report provided by him in February 2014 and noted that there had been no other medical complaints other than those referred to in that report. That report was not in evidence.

   [27] Reply to Application to Resolve a Dispute (reply), pp 52–59.

2. Dr Wallace reviewed and assessed the appellant again on 31 October 2018 and reported to the respondent on 5 November 2018.[28] He provided a history of left knee injuries, the continuing symptoms and the treatment provided. He noted that, two weeks after the total knee replacement, the appellant slipped and fell, suffering a hyperflexion injury to his left knee. Dr Wallace further noted that the appellant had undergone a lumbar spinal fusion in June 2018 as a private patient.

   [28] Reply, pp 38–45.

1. Dr Wallace provided a supplementary report dated 10 April 2019,[29] without a re-examination of the appellant. He confirmed that the appellant had not complained of any lumbar symptoms at the time of his assessment on 31 October 2018, and that the appellant did not mention a lumbar spine injury following a fall in November 2017. He advised that he was unable to provide an opinion on causation because he had not taken a history of the alleged injury or performed a physical examination.

   [29] Reply, pp 20–21.

THE MEMBER’S REASONS

1. The Member identified that the issues for determination were:

   (a)    whether the appellant suffered an injury to or consequential condition in his lumbar spine as a result of the fall caused by the left knee injury, and

   (b)    whether the lumbar surgery and associated expenses were reasonably necessary as a result of the injury or consequential condition.

2. The Member summarised the appellant’s statement evidence, noting that the appellant said that his left knee gave way and he fell heavily on his left side. The Member referred to the appellant’s evidence that he reported both the back pain and the fall to his physiotherapist on 27 November 2017, to his general practitioner on 19 December 2017 and to A/Prof Pinczewski on 20 December 2017. The Member also noted that the appellant said that he had severe back pain by December 2017 and that in January 2018, the pain worsened and was in the right-hand side.

3. The Member reviewed the medical evidence provided by Dr David Grant, general practitioner, the appellant’s physiotherapist, and A/Prof Pinczewski. He provided a detailed summary of the history provided to A/Prof Davies, who recorded that the appellant had experienced intermittent back and leg pain for years and that at the time of consultation, the appellant was severely disabled by back pain. The Member particularly noted that the first mention made by A/Prof Davies of the appellant having a fall because of the left knee and subsequent back pain was in his report dated 24 May 2019.

4. The Member provided a detailed summary of the evidence given by the medico-legal experts, Dr Giblin and Dr Wallace. He observed that Dr Wallace had advised that he could not provide an opinion on causation of the lumbar symptoms because he did not have a history in relation to the onset of those symptoms.

5. The Member noted the history recorded in Dr Giblin’s report dated 15 April 2019 as to the circumstances in which the appellant fell and injured his back in November 2017, together with the appellant’s explanation that his left knee was his initial major concern but as that improved, his back became more of an issue. The Member further noted that Dr Giblin recorded that there was “no past history of this or a similar problem.”

6. The Member referred to the history recorded by Dr Giblin that the appellant’s initial left knee injury occurred in 2010 and that, after the total knee replacement, the appellant injured his back when his left knee gave way, resulting in an aggravation of the pre-existing pathology. The Member added that, in his report dated 28 May 2019, Dr Giblin expressed the opinion that the left knee injury materially contributed to the appellant’s lumbosacral condition, it was not uncommon for a knee replacement to give way and the fall resulted in injury to the back which led to the lumbar surgery.

7. The Member referred to various authorities in respect of the onus of proof and the test to be applied in determining the existence of a fact. He observed that, whether the appellant suffered an injury, or a condition consequent to the injury to his left knee, was a question of fact, which was to be determined using a “common sense approach.” He noted that the appellant’s case was that the left knee injuries resulted in the need for the left knee replacement surgery, the surgery caused instability in the knee, which in turn caused the fall and the onset of lumbar symptoms.

8. The Member pointed to the absence of contemporaneous evidence of the fall causing the onset of low back symptoms. The Member cited the decision of Keating P in Department of Education and Training v Ireland,[30] in which his Honour discussed the relevance of evidence contained in contemporaneous records such as clinical notes and medical reports and cautioned decision-makers against reliance upon the credit of a witness rather than the contemporaneous records when considering the available evidence.

   [30] [2008] NSWWCCPD 134.

9. The Member observed that he was satisfied that the left knee injury and knee surgery contributed to the appellant’s fall on 26 November 2017. The Member noted the appellant’s evidence of the left knee having given way, causing him to fall on his left side. He observed that the mechanism of injury described by the appellant was not corroborated by the physiotherapists’ evidence. The Member said, however, that the fall occurred only 19 days after the surgery, while the appellant was still receiving physiotherapy, and Dr Giblin’s uncontradicted opinion was that it was not uncommon for a knee to give way occasionally following a total replacement surgery.

10. The Member considered that the issue of whether the fall caused the onset of lumbar symptoms was more complicated. He pointed out that, while the medical evidence supported that the lumbar symptoms worsened after the total knee replacement, there was no contemporaneous evidence of the fall causing the onset of back pain. The Member said that there were inconsistencies between the appellant’s statement evidence and the contemporaneous records, which caused him to doubt the reliability of the appellant’s evidence in relation to this issue.

11. The Member noted that the appellant complained that he fell on his left side, but the first report of back pain recorded on 10 January 2018 was of right-sided lumbar pain. He observed that, if the appellant fell heavily on his left side, it might be expected that the onset of pain would be located in the left side. The Member added that the first mention of left-sided back pain was recorded by Dr Grant on 1 May 2018, some five months after the event.

12. The Member considered that such a traumatic event as a fall would be likely to cause an immediate onset of pain and, applying common sense, it was difficult to comprehend why the symptoms were not immediately identifiable and reported to a treatment provider even though the appellant may have been more concerned about re-injuring his left knee. The Member referred to the frequency of the appellant’s visits to his treatment advisers in the period prior to 10 January 2018 and said that he found it difficult to accept that, during that period, the appellant could have suffered a significant injury to his back and not reported it. The Member added that the appellant’s evidence as to the time of onset of the back pain was inconsistent. He referred to the appellant’s evidence recorded in his statement dated 6 August 2021, in which the appellant said that, after the fall, he experienced pain in his back, buttocks, thighs, calves and feet, which was simply a repetition of the symptoms he reported to A/Prof Davies on 31 May 2018. Further, the appellant asserted that he reported his symptoms of ongoing back pain to A/Prof Pinczewski on 20 December 2017, but A/Prof Pinczewski made no mention of those complaints in his report. The Member said that the appellant also stated that he told Dr Grant on or about 27 April 2018 that his back had been troubling him “essentially since his left knee operation,” which was reflected in Dr Grant’s records. The Member observed that this evidence was not consistent with the appellant’s assertion that the fall was the precipitant of the back pain and instead appears to allege that the onset of the back pain occurred after the knee replacement but before the fall.

13. The Member referred to the first clinical entry of back pain recorded in the physiotherapy notes dated 10 January 2018 which noted “without MOI,” and which the Member understood to mean without “mechanism of injury.” He said that was also inconsistent with the allegation that the fall caused the onset of symptoms. The Member said that he rejected the appellant’s submission that it was not necessary for the evidence to be consistent in relation to the timing of the onset of his back pain. The Member observed that the appellant bore the onus of proving his case, which was that the back symptoms resulted from the fall. He concluded that the appellant’s own evidence did not enable a positive conclusion to be drawn about whether the fall caused the onset of back symptoms. The Member remarked that the lack of contemporaneous evidence to corroborate the appellant’s case was a significant omission.

14. The Member said that, despite the allegations of pain in the back, thighs, calves and feet after the fall, the first time those complaints were recorded was on 31 May 2018, when the appellant saw A/Prof Davies, some six months after the fall. Additionally, the appellant did not report to A/Prof Davies that those symptoms were precipitated by the fall, which occurred after the knee replacement.

15. The Member concluded that the absence of corroborative evidence cast significant doubt on the appellant’s assertion that he suffered an injury or a consequential condition in his back as a result of the injuries to his knee. He considered that the allegation that the fall caused injury to the appellant’s back was a “retrospectively reconstructed case theory unsupported by the contemporaneous evidence.”[31] He added that the appellant had proceeded to undergo lumbar spine surgery without making a claim for compensation, which made it more likely than not that, at that time, the appellant did not believe the back symptoms were referrable to the fall.

    [31] Devenish v Kizlock Pty Ltd [2021] NSWPIC 413 (reasons), [93].

16. The Member also considered that the history provided by the appellant that his knee symptoms improved after the fall and his back became progressively worse was not consistent with the contemporaneous evidence. The Member pointed to the physiotherapist’s clinical notes, which, the respondent submitted, recorded an improvement in the appellant’s back condition over time. The Member noted that there were also references in those clinical notes to other incidents and activities after the fall that caused aggravations of the appellant’s back symptoms, such as cleaning a swimming pool and alighting from a car. The Member thought that those entries also cast some doubt on the appellant’s case that the fall precipitated the symptoms. He considered that it was at least equally probable that the appellant had a longstanding back condition, as recorded by Dr Grant, which was aggravated by strenuous activity or awkward actions.

17. The Member considered that there was no cogent or compelling evidence that the onset of the back pain was referrable to the fall. He reiterated that there were key inconsistencies in the appellant’s evidence in relation to the mechanism of the fall and the onset of symptoms. Further, the Member said that the appellant had failed to address Dr Grant’s reference to the appellant having long standing back issues since 1979 and the further aggravations to his back occurring after the date of the fall.

18. The Member referred to the observations of Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd,[32] that in non-evidence-based jurisdictions such as the Commission, the question of the acceptability of expert evidence is a question of weight, not of admissibility. Further, that the expert’s report should set out the facts observed, the assumed facts, including the history provided by the appellant and the information from radiological information. The Member noted that, in accordance with Hancock, the assumed facts need not be exhaustive, the assumptions upon which the opinion is based, must provide a “fair climate” for the opinion and it is sufficient if the overall context of the facts provides basis for the opinion.

    [32] [2011] NSWCA 11 (Hancock).

19. The Member formed the view that, in this case, the objective evidence did not adequately support the fact that the onset of the back pain was a consequence of the fall on 26 November 2017. The Member again referred to the physiotherapist’s note on 10 January 2018, which recorded the onset of right sided lumbar spine pain with no “MOI”. He observed that while the evidence supported a worsening of the appellant’s lumbar pain after the total knee replacement, there was no satisfactory evidence providing a link between the onset of symptoms and the fall.

20. The Member said that, in those circumstances, the histories provided to A/Prof Davies and Dr Giblin were not supported by the contemporaneous evidence and were inconsistent with the appellant’s complaint to the physiotherapist on 10 January 2018. He found, therefore, that the opinions of those doctors were of limited probative value. He added that neither doctor had addressed how the appellant’s significant symptoms, which included neurological symptoms, were not identified immediately after the fall but appeared gradually over the period of time leading up to the lumbar surgery or the subsequent aggravations recorded by the physiotherapist. Further, Dr Giblin did not have a complete history of the appellant’s pre-existing symptoms, which were referred to by Dr Grant in his letter of 1 May 2018.

21. The Member concluded that he was not satisfied that the appellant suffered an injury to, or consequential condition in, his lumbar spine as a result of the fall on 26 November 2017. Consequently, he determined that the costs of and incidental to the surgery to the lumbar spine were not reasonably necessary as a result of the injury. He provided a summary of the facts that led him to that conclusion, which were:

    “(a)    [the appellant’s] failure to report symptoms to his back after the fall, notwithstanding being in receipt ongoing medical treatment;

    (b)     [the appellant’s] report to his physiotherapist that the onset of pain to his lumbar spine was without mechanism of injury, and not as a result of a fall;

    (c)     [the appellant’s] failure to report the fall being the cause of the onset of pain in his lumbar spine (and other body parts) to [A/Prof] Davies in April 2018;

    (d)     [t]he inconsistent evidence given by [the appellant] about the timing of the onset of his back pain;

    (e)     the absence of any evidence from [the appellant] concerning Dr Grant’s reference to longstanding low back pain or the aggravations to his back recorded in the physiotherapist’s reports;

    (f)      the unconvincing nature of [the appellant’s] statement which was not made until 6 August 2021 and [drew] largely on the report of doctors concerning symptoms;

    (g)     … the factual basis to the claim provided to the experts relied upon by [the appellant] [was] inaccurate and therefore their opinions [were] of limited probative value, and

    (h)     the absence of any evidence from the doctors as to how such severe pathology in [the appellant’s] lower back could not cause an immediate onset of pain post-fall but emerge at a later point and gradually worsen over time.”[33]

    [33] Reasons, [103].

22. The Certificate of Determination issued on 14 October 2021 records:

    “The Commission determines:

    1.     Award for the respondent on the claim for medical expenses, in particular the claimed lumbar fusion surgery and associated expenses.”

GROUNDS OF APPEAL

1. The appellant relies upon three grounds of appeal, asserting errors of law on the part of the Member by:

   (a)    Ground One: failing to accept uncontradicted medical opinions;

(b)    Ground Two: erring in the fact-finding process in:

(i)affording too much weight to the absence of a record of the appellant experiencing low back pain at the time of the fall;

(ii)placing too much weight on the appellant’s failure to provide a mechanism of injury to his physiotherapist, and

(iii)placing too much weight on inconsistencies in the appellant’s statements, and

(c)    Ground Three: taking into account irrelevant matters.

SUBMISSIONS

1. The appellant generally submits that the Member erred in fact and law in reaching his factual conclusions and that by doing so, he applied a higher standard of proof than that of the balance of probabilities. The appellant asserts that there was no coherent reasoned opinion to rebut the opinions of Dr Giblin and A/Prof Davies and no proper reason for the Member to reject those opinions. The appellant relies upon the authorities of Ly v Jitt Offset Pty Ltd,[34] Craddock v GH Varley Pty Ltd[35] and Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[36]

   [34] [2021] NSWPICPD 2.

   [35] [2021] NSWWCCPD 10.

   [36] [2008] NSWCA 246.

2. The respondent generally replies that the Member has not erred in his fact-finding exercise and the Member’s decision was open to him on the evidence. The respondent refers to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[37] and Andersen v J & M Predl Pty Limited,[38] and submits that the Member’s decision should not be disturbed if, on the available evidence, the Member’s conclusion was fairly open to him.

Ground One

[37] [2001] FCA 1833 (Branir).

[38] [2018] NSWWCCPD 40.

The appellant’s submissions

1. The appellant submits that the medical evidence in support of his case consisted of the evidence from A/Prof Davies, the appellant’s treating neurosurgeon, and Dr Giblin, an orthopaedic surgeon with a special interest in spine and knee surgery. The appellant asserts that there was no medical evidence denying the causal link between the left knee injury and the lumbar spine condition. The appellant points to Dr Giblin’s observation that it was not uncommon for a knee to give way following a total knee replacement and that the fall aggravated the appellant’s pre-existing spondylolisthesis. The appellant further points to the Member’s conclusion that the history provided by Dr Giblin was not supported by the contemporaneous records and was inconsistent with the appellant’s complaint to his physiotherapist on 10 January 2018.

2. The appellant contends that the history recorded by Dr Giblin was correct. That is, it was clear from the evidence that the appellant’s back condition worsened after the fall, which led to the need for the surgery. The appellant points out that the need for the surgery was not in dispute. The appellant submits that the physiotherapist’s clinical note recorded on 10 January 2018 of “right-sided LSP with no MOI”[39] was not inconsistent with the history upon which Dr Giblin’s opinion was based. The appellant asserts that what the physiotherapist recorded in the notes may not necessarily be what the appellant told the physiotherapist, and there being “no MOI” (no mechanism of injury) should not be considered inconsistent with Dr Giblin’s opinion. The appellant adds that, as a lay person, he should not be criticised for failing to provide a mechanism of injury. The appellant says that A/Prof Davies provided the mechanism of injury.

   [39] Appellant’s amended appeal submissions dated 7 December 2021 (amended appeal submissions), [5].

3. The appellant is critical of the Member’s observation that the history recorded by Dr Giblin was that there was “no past history of this or a similar problem” and asserts that the Member erred in fact in making that observation because it was wrong. The appellant adds that the history recorded by Dr Giblin was significantly different to that relied upon by the Member.

4. The appellant submits that the clinical notes recorded by his general practitioner were in evidence and, while there was a reference to thoracic pain in 2003 and coccygeal pain in 2008, there was no reference to low back pain at the L5/S1 level prior to the fall. He points out that the radiological finding of L5/S1 spondylolisthesis was an incidental finding when the coccygeal pain was investigated.

5. The appellant refers to the entry made on 1 May 2018, in which the general practitioner referred to the appellant having had long standing low back issues since 1979 and asserts that the clinical notes do not support that observation. The appellant submits that the clinical notes support the fact that the appellant had no symptoms in the area of the L5/S1 level of the spine prior to the fall in November 2017. The appellant submits that, at the arbitration, the Member’s attention was drawn to this lack of evidence of prior symptoms and the Member’s failure to properly evaluate that evidence, which led the Member to erroneously conclude that the history recorded by Dr Giblin was inconsistent.

1. The appellant asserts that the Member failed to properly analyse the facts upon which Dr Giblin’s opinion was based, the facts assumed by Dr Giblin provided a fair climate for acceptance of his opinion and the Member erred in rejecting that opinion.

2. The appellant points to the Member’s rejection of the opinion of Dr Giblin on the basis that Dr Giblin had not explained why the significant back symptoms were not evident immediately after the fall but gradually developed. The appellant says that Dr Giblin was not cross-examined and there was no medical evidence that pointed to the delayed onset of symptoms being an issue in the proceedings. The appellant contends that the Member was not medically qualified, and so should have accepted Dr Giblin’s opinion in circumstances where any delay in the presentation of symptoms did not concern either Dr Giblin or A/Prof Davies. The appellant submits that adopting a common-sense reasoning was not appropriate and the issue was reliant upon expert evidence.

3. The appellant refers to the Member’s rejection of the opinion of Dr Giblin on the basis that Dr Giblin had failed to take into account the “aggravation injuries” noted by the physiotherapists after the fall. The appellant asserts that each of the “aggravations” noted occurred after the fall and after the complaint of symptoms on 10 January 2018. The appellant submits that the subsequent complaints are entirely consistent with continuing pain after the fall which was becoming more severe. The appellant reiterates that Dr Giblin was not cross-examined in relation to those clinical entries and contends that there was no medical evidence that any of those events were capable of initiating the L5/S1 symptoms which ultimately required surgery.

4. The appellant asserts that there was no evidence of any strenuous activity or awkward movement taking place between the total knee replacement and the fall, and the only event of any significance prior to the onset of symptoms was the fall. The appellant says that A/Prof Davies explained the significance of the fall. The appellant contends that the Member’s observations in [95] of the Member’s reasons were unreasonable because it was not at least equally probable that:

   (a)    any strenuous or awkward movements between the total knee replacement surgery and the fall caused the onset of symptoms because there was no medical or other evidence of any strenuous activity, and

   (b)    any strenuous or awkward movements between the fall and the lumbar surgery caused the symptoms because those symptoms pre-dated the “aggravations.”

5. The appellant submits that the evidence of A/Prof Davies that symptoms arising from a pre-existing L5/S1 spondylolisthesis are often precipitated by a fall and that the appellant’s fall, as described, would be sufficient to render such a condition symptomatic was cogent evidence. The appellant submits that there was no medical evidence that any of the other activities performed by the appellant were capable of initiating the appellant’s symptoms.

6. The appellant contends that the finding the Member should have made is that the probability that the fall caused the symptoms significantly outweighed the probability that the other events were causative. The appellant asserts that the available facts provided a reasonable foundation for the conclusion that the fall caused the lumbar condition and the requirement for surgery. The appellant submits that the Member committed an error of law in respect of his fact-finding process. The appellant adds that all that was required of him was to establish that the fall made a material contribution to the need for the surgery so that later aggravations were irrelevant, unless they constituted a “novus actus”, which was not a conclusion reached by the Member.

7. The appellant refers to the history recorded by A/Prof Davies that:

   (a)    the appellant experienced intermittent non-disabling back and leg pain for years, which had become severe after December 2017, and

   (b)    the appellant fell heavily on his left side on about 26 November 2017, following which he experienced back pain and worsening left, and then right leg pain.

8. The appellant refers to A/Prof Davies’ opinion that there was a direct causal link between the fall and the onset of L5/S1 symptoms. The appellant submits that A/Prof Davies provided a detailed explanation of the mechanism of injury which rendered symptomatic a previously asymptomatic spondylolisthesis. The appellant contends that the history recorded by A/Prof Davies provide a fair climate for his opinion.

9. The appellant refers to the Member’s criticism that A/Prof Davies had not explained how the significant symptoms experienced by the appellant were not apparent immediately after the fall and only developed over a period of time. The appellant contends that there was no evidence adduced which would support the Member’s conclusion and says that A/Prof Davies was not cross-examined. The appellant submits that the delayed onset of symptoms was not a matter that required him to adduce medical evidence to address and, as the Member was not medically qualified, the Member should have accepted A/Prof Davies’ opinion.

10. In conclusion, the appellant submits that the Member’s criticism for failing to address the “aggravation injuries” should be rejected for the same reasons as those put forward in relation to the Member’s errors in rejecting the opinion of Dr Giblin.

The respondent’s submissions

1. The respondent refers to the Member’s observations that the appellant’s submissions were that Dr Giblin had the correct history when he recorded that the back condition worsened after the fall and the submission that the entry “no MOI” in the physiotherapist’s notes was of no consequence. The respondent submits that the appellant has failed to address the many other inconsistencies in the evidence observed by the Member, particularly that both Dr Giblin and A/Prof Davies failed to take into account the absence of complaint of back pain after the fall in the many attendances at the various treatment providers prior to 10 January 2018. The respondent further points to the absence of comment by Dr Giblin and A/Prof Davies about the appellant’s improvement in symptoms followed by subsequent activities in January and February 2018 which aggravated the appellant’s back condition. The appellant refers to the appellant’s concession that there was a radiological investigation undertaken in 2008 because of complaints of coccygeal pain which disclosed a slip at the L5/S1 level of the appellant’s spine.

2. The respondent asserts that the appellant’s submission that the Member failed to take into account the lack of complaint in the clinical records of symptoms in the low back prior to the fall, except for the 2008 entries, is misconceived. The respondent says the histories recorded by Dr Giblin and A/Prof Davies were “superficial” and “inconsistent”, and the inaccuracy of their assumptions undermined the probative value of their opinions. The respondent submits that the inaccuracies were highlighted by the Member’s comprehensive review of the contemporaneous records.

3. The respondent submits that, on the one hand, the appellant seeks to rely upon the lack of record of complaint prior to November 2017 as evidence that there were no prior symptoms yet, at the same time, argues that the absence of record of complaint between the fall and 10 January 2018 was not relevant.

4. The respondent asserts that it appears that neither A/Prof Davies nor Dr Giblin took into account the clinical notes recorded after the fall. The respondent refers to the appellant’s submission that the Member is not medically qualified and that, because A/Prof Davies and Dr Giblin were not cross-examined, the Member ought to have accepted their opinions. The respondent submits that the appellant bears the onus of proof, and the probative value of those opinions should be weighed in the context of a fair climate. The respondent contends that the superficial histories recorded by A/Prof Davies and Dr Giblin did not address the inconsistencies referred to by the Member, which history included the subsequent aggravations.

5. The respondent submits that the Member did not place too little weight on the opinions of A/Prof Davies and Dr Giblin and thus did not err in the manner alleged.

Ground Two

The appellant’s submissions

1. The appellant contends that the lack of contemporaneous complaint of back pain was medically irrelevant and could be explained. The appellant also asserts that the Member’s criticisms were unwarranted and were insufficient to displace the uncontradicted evidence provided by Dr Giblin and A/Prof Davies.

2. The appellant submits that from the date of the total knee replacement up to January 2018, he was recovering from the knee surgery, and was concerned about the fall having caused further damage to his knee. He added that he was receiving physiotherapy for his knee and was being monitored by his general practitioner and the practice nurse in relation to possible blood clotting. The appellant asserts that his predominant concern at the time was the effect of the fall on his left knee. The appellant describes the Member’s consideration of the lack of complaint of low back pain during that period as “harsh.” The appellant refers to his evidence that he reported the symptoms to A/Prof Pinczewski in December 2017, but the doctor did not note it down. The appellant points to the notion that caution should be used when applying consideration to the lack of recording of complaints in medical notes, particularly where the complaint falls outside of the medical practitioner’s expertise. The appellant says that the lack of recording of back symptoms in the general practitioner’s notes and in those recorded by the physiotherapists from 26 November 2017 to 10 January 2018 does not provide a proper basis upon which to reject the uncontradicted opinions of both Dr Giblin and A/Prof Davies.

3. The appellant refers to the Member’s reasons for failing to accept the appellant’s case, which were that the appellant:

   (a)    failed to provide a mechanism of injury to his physiotherapist at the consultation on 10 January 2018;

   (b)    alleged that his back symptoms arose in December 2017 when the first record of symptoms was not until 10 January 2018, and

   (c)    gave inconsistent histories as to the onset of those complaints.

4. The appellant submits that he did not connect the back condition with the left knee injury until he sought legal advice in September 2018 and was initially more concerned about his left knee until his back symptoms worsened. He maintains that it is not inconsistent to assert that the back pain arose after the left knee surgery and also allege that the onset of symptoms was after the fall, or in December 2017. The appellant submits that the Member’s criticism of the appellant’s evidence in this regard was unwarranted and was not a matter which could be taken into account when applying a common-sense evaluation of the medical evidence. The appellant maintains that this fact was not sufficient to displace the opinions of Dr Giblin and A/Prof Davies.

5. The appellant also submits that, from a legal perspective, there was no proper basis upon which the Member could take into account that the appellant had not claimed the cost of the surgery before the surgery took place.

The respondent’s submissions

1. The respondent submits that the appellant’s submission that the Member relied on the lack of contemporaneous complaint to dismiss the appellant’s claim is misconceived. The respondent says that the Member did not solely base his decision on the appellant’s credit, but carefully analysed all of the evidence that Dr Giblin and A/Prof Davies had failed to address. The respondent contends that the Member did not err in his fact-finding process.

Ground Three

The appellant’s submissions

1. The appellant contends that the fact that the first clinical entry recording back symptoms referred to right sided pain was irrelevant from a medical and legal aspect, as was the failure of the appellant to claim the cost of the surgery.

The respondent’s submissions

1. The respondent submits that the appellant has not explained how a common-sense approach requires that the inconsistency in the history that the appellant fell on his left side and yet the onset of symptoms presented on the right side should be ignored. The respondent maintains that Dr Giblin and A/Prof Davies failed to address that evidence. The respondent submits that there is no explanation as to why the fall caused the need for surgery when the appellant’s lumbar symptoms increased following each of the subsequent aggravations.

THE RELIEF SOUGHT

1. The appellant seeks to have the Certificate of Determination revoked and an award entered in his favour in respect of the compensation claimed, or in the alternative, the matter remitted for re-determination by a different Member.

2. The respondent submits that the Member’s Certificate of Determination should be confirmed.

CONSIDERATION

Ground One

1. The first ground of appeal asserts that the Member erred by failing to accept the uncontradicted medical opinions of Dr Giblin and A/Prof Davies. The appellant refers to the Member’s finding that both doctors had recorded inaccurate histories in respect of the onset of the symptoms.

2. At the request of the appellant’s solicitor, A/Prof Davies addressed the causal connection between the appellant’s back symptoms in his report dated 24 May 2019. The history recorded by A/Prof Davies included a past history of intermittent back and leg symptoms for years, that the appellant “fell heavily onto his left side,” the date of the fall was “approximately 26 November 2017” and the symptoms had become severe since December 2017.[40] He described “the development of symptoms related to spine pathology.”[41] The Member rejected the opinion of A/Prof Davies on the basis that the history provided was “not supported by the contemporaneous evidence.”[42]

   [40] ARD, p 29.

   [41] ARD, p 30.

   [42] Reasons, [100].

3. The reference to prior intermittent back symptoms was consistent with the history provided to him by Dr Grant, the appellant’s long term general practitioner, in the referral to A/Prof Davies dated 1 May 2018. It was also consistent with the appellant’s statement evidence that he had experienced prior intermittent symptoms but did not seek medical treatment. The complete absence of reported complaints of low back pain in the clinical notes, apart from the coccygeal pain in 2008, on its face is somewhat inconsistent with the history put forward by Dr Grant and recorded by A/Prof Davies. However, the appellant conceded pre-existing symptoms but said those symptoms did not warrant treatment, which would explain the absence of complaints in the clinical records. In that context, the inconsistency does not detract from A/Prof Davies’ ultimate conclusion that the fall caused the development of worsening symptoms and aggravated the pre-existing spondylolisthesis. The fact that the appellant fell heavily on his left side was not disputed and was accepted by the Member. A/Prof Davies correctly identified that the fall occurred on or about 26 November 2017 (that is, within three weeks of the knee replacement surgery). His opinion was based on those facts and on the fact that the worsening of his back symptoms was not spontaneous but developed at some time after the fall, as identified by Dr Grant.

4. The appellant attended Dr Grant on 19 December 2017. Dr Grant recorded the history of the fall but did not record the presence of symptoms. However, it is clear that Dr Grant understood that the worsening of symptoms or, as A/Prof Davies described it, the development of worse symptoms, occurred in December 2017. The worsening of the appellant’s back symptoms over time was apparent from the clinical notes recorded by Dr Grant, the referral by Dr Grant to A/Prof Davies, and the evidence from BaiMed physiotherapy.

5. As the appellant submits, his lay recollection of the onset of the symptoms having occurred after the knee replacement, as well as Dr Grant’s similar summation of the history of onset, is not evidence that is sufficiently inconsistent with the history relied upon by A/Prof Davies in reaching his conclusion.

6. In Wikiv Atlantis Relocations (NSW) Pty Ltd,[43] Ipp JA observed (with Bryson JA and Stein AJA agreeing) that, in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons. On the basis of the principles discussed in Hancock:

   (a)    the assumptions underpinning an expert opinion must provide a “fair climate” to ground the expert’s opinion;

   (b)    there does not need to be an exact correspondence between the assumed facts upon which the expert opinion is based and the facts proved in the case, and

   (c)    it is sufficient to look at the overall context of the facts upon which the ultimate opinion is based.

   [43] [2004] NSWCA 174.

7. The respondent submits that the assumed facts relied upon by A/Prof Davies were provided to him by the appellant’s solicitor and it was not until then that A/Prof Davies provided his opinion that there was a causal link between the fall and worsening back pain. It is not more probable that the facts assumed by A/Prof Davies were materially inconsistent with the proven facts. Thus, in the context of the absence of a coherently reasoned rebuttal by a qualified expert, there was no sufficient basis upon which the Member ought to have rejected the opinion of A/Prof Davies. The Member thus erred in rejecting that opinion.

8. The Member also rejected the opinion of Dr Giblin. He indicated that the history recorded that there was “no past history of this or a similar problem” was wrong. The appellant submits that the Member erred in assessing the history relied upon by Dr Giblin, because of the absence of reference in the clinical notes to prior complaints. The appellant clearly had a pre-existing spondylolisthesis which was apparent in the x-ray undertaken in 2008. As the appellant submits, however, the complaints under investigation at that time were in respect of coccygeal pain, rather than symptoms at the L5/S1 level, so that the pathology identified was an incidental finding.

9. It is not clear whether Dr Giblin was referring to the left knee injuries or the back condition, or both, when he recorded that there was no past history of similar problems but, in respect of the back condition, there was certainly no reference to such symptoms in the clinical notes recorded by Dr Grant. The absence of prior recorded complaints was a factor relevant to the assessment of Dr Giblin’s opinion and the assessment of that opinion.

10. The appellant’s assertion that the Member failed to evaluate the absence of complaint in the clinical notes is correct. The Member adopted the history recorded in the letter of referral from Dr Grant to A/Prof Davies without consideration of the potential conflict between that history and the absence of a history of prior complaints recorded in the clinical notes. Whether such an analysis would result in a different outcome, however, is debateable.

11. The Member also rejected Dr Giblin’s opinion because Dr Giblin had not explained the delay in onset of the symptoms. The appellant says that the delayed onset was not an issue raised by medical evidence from the respondent.

12. In an assessment of the acceptance of evidence, the evidence must be read in the context of the evidence as a whole. There was no medical evidence that suggested that the delayed onset of worsening symptoms was relevant to the question of causation and that the delay countered against the asserted causal connection.

13. Further, the Member rejected Dr Giblin’s opinion because he did not take into account the evidence referred to by the respondent of subsequent “aggravation injuries.” Those later events, if indeed they constituted aggravation injuries, occurred after 10 January 2018, when the appellant first complained of symptoms to his physiotherapist. The fact that Dr Giblin did not refer to the subsequent non-work related incidents does not amount to a failure to satisfy the requirements of expert evidence.[44] In the circumstances of this case, there was no medical evidence that attributed the L5/S1 symptoms to subsequent causative events or that those events constituted a “novus actus” such that there was a break in the chain of causation.

    [44] Hancock, [88].

1. For the above reasons, it follows that the Member erred in his assessment of the evidence provided by Dr Giblin.

2. The appellant has established that the Member’s rejection of the opinions of A/Prof Davies and Dr Giblin involved error, and this ground of appeal succeeds.

Ground Two

1. Ground Two of the appeal asserts error on the part of the Member in the fact-finding process.

2. Firstly, the appellant asserts that the Member afforded too much weight to the absence of a contemporaneous record of the onset of back pain at the time of the fall. It is implicit in the Member’s reasons that he ultimately was not satisfied that the appellant experienced symptoms at the time of the fall. The appellant points to the explanation he gave for not reporting the symptoms earlier. That is, that his major concern was in relation to his left knee, until it improved, and his back pain worsened. While the appellant asserted that he hurt his back in the fall, he did not positively assert that the worsening symptoms, which prompted him to seek treatment, arose immediately after he fell.

3. The history recorded by A/Prof Davies was that there was a delay between the fall and the worsening of lumbar spine symptoms. A/Prof Davies was clearly appraised of that delay but did not express any concern in providing the necessary causal link between the fall and the subsequent onset of worsening symptoms. He was satisfied that the mechanism of injury could and did disrupt the fibrous connection between the two vertebrae, generating excessive movement in the spine and causing nerve pain.[45]

   [45] ARD, p 31.

4. The proximity of complaints or the passage of time between the injury and the onset of symptoms is not, of itself, determinative of the cause of injury.[46] In the circumstances of this case, where the unchallenged expert evidence provided a rational causal nexus between the fall on 26 November 2017 and the development of worsening back symptoms within weeks of the fall (at some time in December 2017 or prior to 10 January 2018), the search for a contemporaneous record of immediate symptoms following the fall was misplaced.

   [46] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463–464.

5. The appellant also asserts that the Member placed too much weight on the failure by the appellant to provide the physiotherapist with a mechanism of injury. It is apparent that the appellant did not complain to a treatment provider that the fall caused an aggravation of his pre-existing back symptoms until after he received legal advice. His explanation was that he did not attribute his back symptoms to his left knee injury until he had been given that legal advice. That evidence does not explain why the appellant did not think it relevant to mention the fall in the context of the increase in back symptoms, regardless of the fact that the appellant was not appraised of the potential legal connection between the left knee injury and the aggravation of his lumbar spine. The failure by the appellant to provide a history of the fall, which he asserts caused him to hurt his back, is a factor that the Member was entitled to take into account. The weight to be afforded to the absence of that history, however, is a matter for the Member to assess in the context of the whole of the evidence.

6. The appellant asserts that the Member placed too much weight on the inconsistencies in the appellant’s statements. The appellant points to the inconsistency identified by the Member, namely that, on the one hand, the symptoms had arisen since the fall and on the other, that they had been present since the total knee replacement. He maintains that it is not inconsistent to assert that the back pain arose after the left knee surgery and also allege that the onset of symptoms was after the fall, or in December 2017.

7. In the context of the short period of time between the total knee replacement, the fall and the onset of symptoms, the reference to the onset being “after the total knee replacement” is not of great significance. A lay person may not always refer to a precise time when the symptoms became apparent or exactly when the worsening of the condition manifested when reporting those symptoms to a treatment provider. I do not accept that such a description is so inconsistent with the appellant’s assertion that he injured his back in the fall that the appellant’s evidence should be considered unreliable.

8. The respondent submits that a Presidential member is not entitled to interfere with a decision of a non-presidential member if, on the evidence, the conclusion reached was fairly open to him or her, relying on Branir Pty Limited v Owston Nominees (No 2) Pty Limited[47]and Andersen v J & M Predl Pty Limited[48] for that proposition.

   [47] [2001] FCA 1833 (Branir).

   [48] [2018] NSWWCCPD 40.

9. In Branir, Allsop J (as his Honour then was) (with Drummond and Mansfield JJ agreeing) observed:

   “… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[49]

   [49] Branir, [28].

10. These observations were considered with approval by the Court of Appeal in Northern NSW Local Health Network v Heggie.[50]

    [50] [2013] NSWCA 255, [71].

11. Deputy President Roche also considered the application of principles relevant to overturning a decision made by a primary decision-maker in Raulston v Toll Pty Ltd.[51] He observed as follows:

    “…

    (a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

    (b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

    (c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.”

    [51] [2011] NSWWCCPD 25 (Raulston), [19]–[20].

1. The medical opinions in support of the appellant’s case did not rely upon there being contemporaneous complaints. The Member’s assessment of the evidence of the appellant’s delay in reporting lumbar symptoms was therefore irrelevant to the determination the Member was required to make. The onset of symptoms having occurred “after the knee replacement” and “since the fall”, in the context of the whole of the evidence, particularly that the evidence showed that the symptoms did not arise until at least December 2017, cannot be considered to be inconsistent. The Member, having placed weight on those matters in order to reject the appellant’s case, discloses error on the part of the Member in his fact-finding process, consistent with the principles enunciated in Raulston.

2. Ground Two of the appeal therefore succeeds.

Ground Three

1. Ground Three of the appeal asserts that the Member erred by taking into account irrelevant matters. The appellant complains that the Member took into account the fact that the appellant fell on his left side, but the pain initially was right sided. The appellant submits that there was no medical basis for taking that record into account.

2. The Member observed:

   “[The appellant] said the fall caused him to fall landing heavily on his left side. As noted above, there is no corroborating evidence of the mechanism of the fall, including in the contemporaneous medical records. The first report of back pain in the medical evidence, on 10 January 2018, is in relation to the right-sided lumbar spine pain. If [the appellant] fell heavily on his left side, one might expect that the onset of pain would be in the left side, and not the right side. The first mention of left-sided back pain is in the history provided to Dr Grant on 1 May 2018, over five months after the fall.”[52]

   [52] Reasons, [78].

3. The role of the Member is to assess the credit of the witnesses, assess what evidence to accept or reject, make findings of fact based on the evidence and apply the law to those facts. Familiarity with medical matters undoubtedly assists a decision-maker in understanding medical evidence but that does not permit the decision maker to become an expert in the case.[53] The Member’s task is to determine what inferences can be drawn from the facts, not the inferences that can be drawn from medical expertise. The Member’s task in this case was to determine whether the fall caused an aggravation of the appellant’s pre-existing spondylolisthesis. Whether the fall on the left side would or would not produce right sided symptoms is a medical question to be answered by an expert medical opinion. The Member’s conclusion reached about that evidence was a medical conclusion and therefore beyond the evaluative task assigned to him and thus he fell into error.

   [53] Strinic v Singh [2009] NSWCA 15, per Beazley JA, [59].

4. The appellant also asserts error on the part of the Member by taking into account the fact that the appellant did not claim the costs of the surgery from the respondent prior to the surgery being performed. It is difficult to see how that fact is relevant to the question of causation. There may be many explanations as to why the appellant did not do so, the most obvious of which is that the appellant’s evidence was that he was unaware that the injury to his back could be compensable if it was causally related to the left knee injury. The appellant’s evidence was that he was appraised of that possibility when he received legal advice after the spinal surgery, in about September 2018.

5. It follows that the appellant has established error on the part of the Member in his role as a finder of fact and by taking into account a further irrelevant matter. Ground Three of the appeal succeeds.

CONCLUSION

1. The appellant’s appeal from the decision of the Member is allowed.

2. The appellant has established error of the kind required on the part of the Member in his rejection of the opinions of A/Prof Davies and Dr Giblin, and in the Member’s fact-finding process. The Certificate of Determination is set aside, and the matter requires re-determination. The role of a Presidential Member of the Commission is limited to a determination of whether the decision has been affected by an error of fact, law or discretion and the correction of such error.[54] The Presidential Member may revoke the decision and make a new decision in its place[55] or remit the matter to a non-presidential member for determination.[56]

   [54] Section 352(5) of the 1998 Act.

   [55] Section 352(6A) of the 1998 Act.

   [56] Section 352(7) of the 1998 Act.

3. The errors identified in the appeal go to:

   (a)    the acceptance or rejection of the expert opinions;

   (b)    the acceptance or rejection of the available evidence, and

   (c)    the ultimate conclusion as to whether the need for surgery to the lumbar spine was caused by the fall which in turn resulted from the injury to the left ankle.

4. I am satisfied that it is appropriate for me to re-determine the matter, which involves a consideration of all of those issues.

RE-DETERMINATION

1. I have read the transcript of the arbitration proceedings conducted on 5 October 2021, in which the submissions by both parties made to the Member were recorded.

2. There was no issue raised in respect of the appellant’s left knee giving way and that it caused the appellant to fall. The following is a summary of submissions made to the Member.

The appellant’s submissions at arbitration

1. The appellant referred to his statement, in which he described the fall when his left knee gave way. He said that his greatest concern at the time was whether he had re-injured his left knee. He submitted that he reported the fall to his physiotherapist on 27 November 2017 and the fall was recorded in the physiotherapist’s notes. He pointed to the entry in Dr Grant’s notes recorded on 19 December 2017 wherein Dr Grant noted the fall and arranged for an x‑ray of the knee. The appellant further referred to A/Prof Pinczewski’s reference to the fall in his letter dated 20 December 2017.

2. The appellant submitted that his right sided lumbar pain worsened in or about January 2018. He said he reported it to the physiotherapist on 10 January 2018 and it was noted in the clinical records. He pointed out that he advised Dr Grant about his lumbar pain on 27 April 2018. He referred to the evidence provided by A/Prof Davies that the appellant had experienced intermittent non-disabling back and leg pain for years and that he suffered from spondylolisthesis. The appellant pointed to the history recorded by A/Prof Davies of back pain in December 2017, as well as the entries relating to back symptoms recorded in the physiotherapy notes, including the subsequent events causing an increase in symptoms.

3. The appellant submitted that the reference to the onset of symptoms being since the total knee replacement was a reference to the fall which happened as a consequence of the knee surgery. He submitted that he should not be required to provide pinpoint accuracy as to when he experienced back pain. He said that his reference to having back pain since the knee replacement ought to be read as having been since the fall, because the fall occurred as a consequence of the knee surgery. He added that the first reference to back pain made to Dr Grant on 27 April 2018, in which the history was recorded that he had experienced back pain for several months, since the knee surgery, was a generalised statement.

4. The appellant referred to A/Prof Davies’ conclusion and submitted that the question for the Member to determine was whether the history taken by A/Prof Davies was sufficiently accurate or not. The appellant further referred to the history taken by Dr Giblin and his opinion, which the appellant said sat with the “reality”.[57]

   [57] Transcript of proceedings (T), Devenish v Kizlock Pty Ltd [2021] NSWPIC 413, T15.23–24.

5. The appellant submitted that there was no suggestion of another cause for the symptoms other than that proffered by A/Prof Davies and Dr Giblin, and that Dr Wallace was silent on the issue. He urged the Member to accept the evidence of both A/Prof Davies, a neurosurgeon, and Dr Giblin, an orthopaedic surgeon, unless the Member considered that the histories recorded by those doctors was incomplete or completely inaccurate. The appellant submitted that the Member ought not conclude that the opinions were incomplete or completely inaccurate.

6. In respect of Dr Giblin’s notation that there was no past history of similar injuries, the appellant submitted that he had experienced non-disabling back pain at times and suffered from spondylolisthesis but since the fall he had been experiencing disabling pain. The appellant pointed to the absence of reference in the clinical notes to lumbar symptoms.

The respondent’s submissions at arbitration

1. The respondent summarised the case as pleaded, that is, that the appellant suffered an injury to his back when he fell because of the left knee injury. The respondent submitted that the case was not that the appellant suffered back pain as a consequence of the total knee replacement and that if there were other causes, those causes should have been pleaded. The respondent said that the histories recorded were unclear.

2. The respondent submitted that the history recorded by Dr Giblin was wrong, in particular in relation to the previous back symptoms. The respondent pointed to the history provided to A/Prof Davies, which was provided by the appellant’s solicitor on 3 April 2019, particularly the history of the heavy fall on the appellant’s left side, following which the appellant experienced worsening back pain with right and left leg pain. The respondent said that this was the first time that A/Prof Davies was provided with that history and the prior history given to him was not consistent with that history.

3. The respondent referred to the history recorded in A/Prof Davies’ first report, which was of intermittent non-disabling pain with worsening pain in December 2017 involving the back, buttocks, calves and feet. In other words, there was no history of worsening back pain after the fall. The respondent said that a correct history was important in the context of A/Prof Davies’ specialty as a neurosurgeon. The respondent submitted that the history recorded in the earlier contemporaneous report should be preferred because A/Prof Davies did not offer an opinion about the fall until he was asked to do so by the appellant’s solicitor.

4. The respondent pointed to the lack of mention of back symptoms recorded in the physiotherapy records, despite the appellant having attended on numerous occasions between 17 November 2017 and 3 January 2018. The respondent also referred to the entry on 10 January 2018, in which it was recorded that there was no mechanism of injury.

5. The respondent submitted that the appellant described his symptom location as his back, buttocks, thighs, calves and feet, which the appellant did not report to any treatment provider between 27 November 2017 and 10 January 2018. The respondent said that there was no contemporaneous evidence of those symptoms.

6. The respondent further submitted that there was no allegation pleaded that the lumbar condition resulted from altered gait or the effects of the knee surgery. The respondent added that there was no reference to the fall in the operation report completed by A/Prof Davies and there was no causal link between the fall and the lumbar symptoms. The respondent referred to the appellant’s evidence that he experienced worsening symptoms in December 2017 but pointed out that the appellant did not complain of those symptoms to Dr Grant when he consulted him on 19 December 2017. The respondent submitted therefore, that the history of worsening symptoms in December 2017, in the absence of complaint to a treatment provider, could not be accepted.

7. The respondent referred to the evidence in which the onset of symptoms was said to be since the total knee replacement and submitted that that evidence was inconsistent with the assertion that the symptoms arose because of the fall. The respondent also submitted that A/Prof Davies did not have access to the physiotherapy notes, which did not record the lumbar symptoms until January 2018, and which was a further reason as to why A/Prof Davies’ opinion could not be relied upon. The respondent asserted that there was no evidence connecting the lumbar symptoms to the fall and that there could be other reasons for the lumbar symptoms. The respondent said that the explanation provided by the appellant that he was more concerned about his knee was inconsistent with the fact that his knee was progressing well.

8. The respondent submitted that the entries in the physiotherapy notes on 23 and 25 January 2018 point to other factors that may be relevant to the question of causation, particularly in the absence of a contemporaneous record of the onset of pain.

Consideration

1. The case as pleaded by the appellant was that he suffered an aggravation of his lumbar spondylolisthesis in the fall which occurred within three weeks of the knee replacement surgery. The appellant did not complain that the knee surgery caused altered mechanics or altered gait, or for any other reason that resulted in an aggravation of his lumbar condition. There was no medical evidence that would support such allegation. The respondent’s submission that if such an allegation was being brought, it should have been pleaded, was somewhat otiose.

1. In the circumstances of this case, I do not accept that the reference to the symptoms worsening since the total knee replacement is indicative of an opinion or assertion that the knee replacement was causative of the lumbar symptoms. The fall occurred within three weeks of the knee surgery and the evidence indicates that the worsening of the lumbar symptoms occurred after those events.

2. The respondent submitted that the histories provided were “unclear.”

3. The respondent asserted that the history provided to A/Prof Davies by the appellant’s solicitors and relied upon in his report dated 24 May 2019 was inconsistent with the history recorded in his earlier reports. In his first report directed to Dr Grant and dated 31 May 2018, A/Prof Davies noted the earlier history of intermittent symptoms and recorded the onset of severe pain in December 2017. A/Prof Davies proceeded to describe the appellant’s symptoms on presentation, noting that conservative treatment had not assisted the appellant. A/Prof Davies did not take a history of an injury or address the issue of causation in that report, or in his subsequent reports directed to Dr Grant. I do not accept that the history recorded by A/Prof Davies in his reports directed to Dr Grant were “inconsistent” with the additional history provided to him that the appellant had experienced a fall prior to the onset of worsening symptoms.

4. The letter of referral dated 1 May 2018 from Dr Grant provided A/Prof Davies with the history of the appellant’s long standing low back problems and that, since the total knee replacement in 2017, the appellant had been experiencing increased low back pain.

5. There was an absence of history of the fall. In the context of there being no dispute that the fall occurred, I do not consider that an absence of reference in the treating doctors’ material to the fall or to a precise time when the symptoms arose is fatal to the appellant’s case. It is sufficient that A/Prof Davies, when asked to consider the question of causation, was appraised of the mechanism of the fall on 26 November 2017 and that the symptoms worsened in December 2017.

6. The respondent submitted that Dr Giblin’s opinion should be rejected because he recorded that there was no past history of “this or a similar problem.” Dr Giblin’s ultimate conclusion was that the appellant suffered a fall because the left knee gave way, which caused an aggravation of the appellant’s pre-existing spondylolisthesis. Dr Giblin was clearly appraised of the pre-existing lumbar pathology. The history of the fall recorded by Dr Giblin was that two weeks after the left knee surgery, the appellant tripped and fell, re-injuring his left knee and hurting his back. Dr Giblin noted that the appellant’s major concern and treatment regime was for his left knee but that in the weeks and months that followed, the left knee improved but the lumbar symptoms became more of an issue.

7. As discussed above, because of the ultimate diagnosis that the fall caused an aggravation of the pre-existing lumbar condition, the reference to no past history of a similar problem, however that phrase is construed, does not materially affect Dr Giblin’s opinion. There was no dispute that the fall occurred. The balance of the history provided to Dr Giblin was consistent with the appellant’s statement and the history provided to A/Prof Davies.

8. I do not accept that the appellant’s failure to complain of symptoms until 10 January 2018 detracts from the opinions of A/Prof Davies and Dr Giblin.

9. The appellant acknowledged that he had suffered from prior symptoms but asserted that his symptoms worsened in December 2017 or January 2018. He gave an explanation for the delay in reporting his symptoms. The history he provided was consistent with the history recorded by A/Prof Davies. A/Prof Davies was aware that there was a delay between the fall and the onset of worsening symptoms. While Dr Giblin recorded an absence of history of “this or a similar problem,” his ultimate conclusion was that the fall aggravated, rather than caused, the appellant’s pre-existing lumbar pathology. The clinical records from the physiotherapists and Dr Grant and the treating doctors’ reports disclose that the appellant’s condition worsened from either December 2017 or January 2018 to the extent that the surgery was ultimately required. There was no other competing medical opinion. It is thus not fatal that Dr Giblin may not have been appraised of the pre-existing intermittent symptoms referrable to the lumbar spine.

10. In his statement dated 6 August 2021, the appellant said that his left leg gave way and he fell heavily on his left side. He said that he felt pain in his back, buttocks, thighs, calves and feet but his main concern was that he might have re-injured his left knee. He advised that he had experienced prior niggling back pain, without seeking treatment. The absence of reference to lumbar pain in Dr Grant’s clinical notes prior to the fall would tend to indicate that the appellant did have prior symptoms which were not sufficient to warrant treatment, which is consistent with his statement and consistent with Dr Grant’s reference to prior intermittent symptoms.

11. Dr Grant‘s clinical notes made no mention of lumbar symptoms but in his referral to A/Prof Davies, he referred to longstanding and persistent low back problems. The appellant reported his back symptoms to the physiotherapist on 10 January 2018. There was no other event prior to that date considered by the medical experts to be causative of increased symptoms other than the fall, and no medical expert asserted that the onset of symptoms was attributable to the natural progression of the spondylolisthesis or some other cause.

12. When asked to provide an opinion on causation, A/Prof Davies took a history of the existence of prior symptoms, the appellant having landed heavily on his left side, the fact that the fall occurred on about 26 November 2017 and that the worsening symptoms did not present until December 2017. He also provided a detailed medical explanation for his conclusions that the fall could have and did cause the onset of symptoms. That history recorded was not in any material degree inconsistent with the appellant’s evidence. There was no medical evidence that attributed prior events, or the subsequent events noted in the physiotherapy records, to be causative of the appellant’s L5/S1 symptoms or the worsening of those symptoms.

13. The only reason put forward by the respondent in favour of rejecting the opinion of A/Prof Davies was that he had been provided with the history of the fall by the appellant’s solicitor. The factual basis put to A/Prof Davies formed the assumed facts upon which his opinion was based. The facts were supported by the available evidence, that is, that:

    (a)    the appellant underwent a total knee replacement on 7 November 2017;

    (b)    the appellant had a fall less than three weeks after the knee replacement, when the knee gave way, and

    (c)    the appellant’s lumbar symptoms became of concern several weeks after the fall and worsened.

14. I do not accept the submission that the opinion of A/Prof Davies should be rejected on the basis put forward by the respondent. His opinion was not inconsistent with the factual evidence and was not contradicted by any other medical opinion. The only medical evidence of the cause of those symptoms was that provided by Dr Giblin and A/Prof Davies. In other words, as the appellant submits, there was no medical opinion that contradicted those opinions and no cogent reason to reject that evidence. Thus, the opinions should be accepted.

15. I accept the opinions of Dr Giblin and A/Prof Davies.

16. The respondent also points to the lack of reference to complaints of lumbar symptoms, including symptoms in the back, buttocks, thighs, calves and feet between the fall and 10 January 2018 and to the failure by the appellant to provide a mechanism of injury to the physiotherapist. I have discussed the relevance of the lack of contemporaneous reporting of symptoms at [114]–[115] and [122] above. The proximity of complaints or the passage of time between the injury and the onset of symptoms, or the recording of such symptoms is not of itself, determinative of the cause of injury. In this case, the appellant did not assert that there was an immediate onset of severe symptoms at the time of the fall and the medical experts did not have that history. Further, the appellant provided a plausible reason for not raising the existence of symptoms until after the post operative treatment for his left knee had taken effect.

17. I do not accept the appellant’s recollection was somewhat imprecise as to the timing of the onset. He complained of symptoms to his physiotherapist on 10 January 2018. Dr Grant did not refer to lumbar symptoms in the consultation note on 19 December 2017. Assuming the appellant did not complain to Dr Grant on 19 December 2017, but did to his physiotherapist on 10 January 2018, that evidence would tend to indicate that the worsening symptoms which were sufficient to warrant treatment occurred between those two dates.

18. I am satisfied that the appellant suffered worsening lumbar symptoms as a result of the fall on 26 November 2017, which resulted from the appellants’ injuries to his left knee. There was no issue raised by the respondent as to whether the surgery was reasonably necessary to address the appellant’s worsening lumbar symptoms. I am therefore satisfied that the surgery in the form of lumbar laminectomy and fusion at the L5/S1 level of the spine was reasonably necessary as a result of the injuries to the appellant’s left knee.

DECISION

1. The Certificate of Determination dated 14 October 2021 is revoked and the following findings and orders are made in its place:

   (a)    The applicant suffered an injury in the form of an aggravation of a pre-existing lumbar spondylolisthesis as a result of a fall on or about 26 November 2017.

   (b)    The fall was a consequence of the appellant’s accepted injuries to his left knee on 2 July 2010 and on 14 September 2012.

   (c) Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the costs of and incidental to the lumbar laminectomy and L5/S1 level fusion performed by Associate Professor Mark Davies on 7 June 2018.

Elizabeth Wood
DEPUTY PRESIDENT

10 June 2022