Devenish v Kizlock Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Devenish v Kizlock Pty Ltd [2021] NSWPIC 413
APPLICANT:	Michael Devenish
RESPONDENT:	Kizlock Pty Ltd
MEMBER:	Nicholas Read
DATE OF DECISION:	14 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for past medical expenses in the form of lumbar spine surgery; worker suffered a compensable left knee injury and underwent a left total knee reconstruction; worker alleged he fell 19 days after his surgery and suffered injury and/or consequential condition to his lumbar spine which necessitated surgery; Held – not satisfied worker discharged onus of proof that fall caused symptoms in lower back; inconsistent evidence regarding onset of symptoms and absence of contemporaneous reporting; burden of proof and Department of Education and Training v Ireland discussed; award for the respondent on the claim for medical expenses.
DETERMINATIONS MADE:	1. Award for the respondent on the claim for medical expenses, in particular the claimed lumbar fusion surgery and associated expenses.

STATEMENT OF REASONS

BACKGROUND

Michael Devenish was employed by Kizlock Pty Ltd (the respondent) as a milk truck driver. On 19 September 2012 Mr Devenish suffered a compensable injury to his left knee. Mr Devenish’s knee worsened over time and on 7 November 2017 he underwent left total knee replacement surgery.
On 26 November 2017 Mr Devenish fell at home. Mr Devenish alleged his fall was caused by instability in his left knee post-surgery. Mr Devenish claimed that as a result of his fall he suffered an injury to his lumbar spine in the form of an aggravation of underlying chronic spondylolisthesis.
On 7 June 2018 Mr Devenish underwent surgery in the form of an L5/S1 stereotactic lumbar laminectomy and pedicle screw internal fixation and fusion.
Mr Devenish made a claim for the respondent to pay the costs of the lumbar spine surgery, and associated expenses.
The respondent denied liability for Mr Devenish’s claim, primarily on the basis that his lumbar condition was not causally related to the left knee injury and the fall.

ISSUE FOR DETERMINATION

The respondent notified the matters in a dispute in a notice issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 September 2019.
The issues for determination are:
(a) whether Mr Devenish suffered an injury or consequential condition to his lumbar spine as a result of the injury to his left knee on 26 November 2017, and the fall on 26 November 2017, and
(b) whether the lumbar fusion surgery, and associated expenses, were reasonably necessary as a result of the injury or consequential condition.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration before me on 5 October 2021.
Mr Mark Boulton of counsel appeared for Mr Devenish instructed by Mr Thomas Clancy, solicitor. Ms Nicole Compton of counsel appeared for the respondent instructed by Mr Neil Bennett, solicitor.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and have been taken into account in making this determination:

(a) Application to Resolve a Dispute, and attachments (ARD), and
(b) Reply, and attachments (Reply).

Mr Devenish’s evidence

In a statement dated 6 August 2021 Mr Devenish provided a history of his injury to his left knee leading up to his left total knee replacement (TKR) on 7 November 2017.
Mr Devenish provided the following evidence in respect of the fall on 26 November 2017:
“... Approximately two weeks after my surgery I was walking out the back door of my home in Kiama when my left knee gave way and caused me to stumble and fall, landing heavily on my left side.
...
My major concern following my fall was my left knee as I had just undergone major surgery and I was very concerned that I had reinjured it but I was also experiencing pain in my back, buttocks, thighs, calves and feet.
I initially reported the incident to my physiotherapist, Brady Warren at BaiMed on 27 November 2017 and told him that I fell over at home the night before. At this my knee was hyper-flexed and very sore.
The weeks following my fall, I continued to undergo further physiotherapy treatment on my knee and my symptoms settled but the pain in my back was getting progressively worse.
By December 2017, the pain in my back was so bad that I was unable to walk for more than 200m or stand for more than a few minutes. I tried to manage my pain with analgesic medication, but it did not help.
I ultimately reported my fall to Dr Grant, general practitioner, on 19 December 2017, who referred me for an x-ray and advised me to continue to undergo physiotherapy.
On 20 December 2017 I was reviewed by Dr Pinczewski approximately six weeks after my surgery. I reported my fall to Dr Pinczewski and my ongoing back pain and lateral knee pain following this fall.”
Mr Devenish said in or about January 2018 the pain on the right side of his lower back worsened and he reported this to his physiotherapist who commenced treatment on his back in addition to his left knee.
Mr Devenish said on or about 27 April 2017 he saw Dr Grant and reported that his back has been playing up essentially since his left knee operation (ARD page 2).
Mr Devenish was referred to Dr Mark Davies, neurosurgeon, who performed a fusion of his lumbar spine on 7 June 2018.

Medical evidence

Following his left TKR surgery on 7 November 2017, Mr Devenish attended his general practitioner on several occasions for the purposes of monitoring post-surgery medication (ARD pages 69 - 70).
On 27 November 2017 Mr Devenish saw his physiotherapist. The physiotherapist’s report records: “slipped + fell last night. Jammed knee into flex > sore today” (ARD page 81).
On 30 November 2017 Mr Devenish attended his general practitioner for further monitoring of his medication (ARD pages 69-70).
On 1 December 2017 Mr Devenish saw his physiotherapist again. The physiotherapist’s report records that Mr Devenish’s knee pain had settled well after his fall (ARD page 82).
On 8, 12 and 18 December 2017 Mr Devenish attended his general practitioner for further monitoring of his medication.
On 4 December 2017 the physiotherapist’s report records that Mr Devenish had some pain in his left knee after attending a gig in the Hunter Valley over the weekend (ARD page 83).
On 8 December 2017 the physiotherapist’s report records that Mr Devenish had some lateral knee soreness, particularly worse with stairs which was possibly due to the fall when his right knee was “hyper-flexed” (ARD page 84).
On 15 December 2017 Mr Devenish attended the physiotherapist again. The physiotherapist’s report records that Mr Devenish’s knee continued to settle well post flare-up (ARD page 85).
On 18 December 2017 Mr Devenish saw the physiotherapist again. The physiotherapist’s report records Mr Devenish’s knee pain was settling (ARD page 86).
On 19 December 2017 Mr Devenish saw Dr David Grant, general practitioner. Dr Grant’s clinical notes record:
“Having an x-ray tomorrow...twisted left knee 2 weeks after...has tender spot laterally since went down forced flexion adn [sic.] onto knee” (ARD page 71).

On 20 December 2017 Mr Devenish saw Dr Pinzewski for a review of his left TKR surgery. In a report of the same date Dr Pinzewski said:
“Michael reports he was progressing extremely well until he suffered a heavy fall about two weeks ago. Since that time, he has been taking a few backward steps and noticed increased lateral knee pain.”
Dr Pinzewski reviewed the x-ray and reassured Mr Devenish that he would continue to slowly improve and that his recent fall had not done any persisting damage (ARD page 15).
On 3 January 2018 Mr Devenish saw his physiotherapist again. The physiotherapist recorded that Mr Devenish was happy with the progress of his left knee and his knee pain had settled significantly over the past two weeks (ARD page 87).
On 10 January 2018 Mr Devenish saw his physiotherapist again. The physiotherapist’s report records:
“Knee progressing...flxn ROM excellent, extn lacks last 2 – 3 degrees...sore R side LSP also today without MOI...” (ARD page 88).
On 19 January 2018 Mr Devenish saw Dr Grant who noted his left knee range of motion was good and he was still having physiotherapy (ARD page 71).
On 19 January 2018 the physiotherapist’s report records that Mr Devenish had “unsettled” lumbar spine pain with a past history of “LSP spondylolisthesis” (ARD page 89).
On 23 January 2018 the physiotherapist’s report records that Mr Devenish’s back pain was much improved and then he woke up sore this morning: “? did some lifting and pool work yesterday ?over did it” (ARD page 90).
On 25 January 2018 the physiotherapist’s report records ongoing improvement of Mr Devenish’s back complaints and that he had undertaken some lifting work yesterday and his back was feeling okay (ARD page 91).
On 6 February 2018 the physiotherapist’s report records “back still slightly twinge, knee feeling good” (ARD page 92).
On 8 February 2018 the physiotherapist’s report records “sore back, occasionally getting some pins and needles when lying flat, knee good” (ARD page 93).
On 13 February 2018 the physiotherapist’s report records “back pain when lift things or twist or roll in bed but not constant ache, knee good” (ARD page 94).
On 14 February 2018 Mr Devenish saw Dr Grant who noted Mr Devenish was going well and was to see an exercise physiologist regarding improving his right leg strength (ARD page 71).
On 20 February 2018 the physiotherapist’s report records:
“Got out of car on Thurs and hurt back...pretty immobile since then due to so much pain... Couldn’t help his daughter do work at house on weekend...feeling better since yesterday” (ARD page 97).
On 23 February 2018 the physiotherapist’s report records that Mr Devenish’s low back pain was ongoing, but improving each day, and his knee was feeling good (ARD page 99).
On 27 April 2018 Mr Devenish saw Dr Grant. The clinical notes record:
“Knee has been good...back has been playing up for last few months really since operation...Chronic back pain in lower left lumbar region lateral flexion and extension painful...”
Dr Grant referred Mr Devenish for diagnostic imaging (ARD page 72).
On 27 April 2018 Mr Devenish had a CT scan on his lumbar spine. The CT report noted significant pathology at L5 level of Mr Devenish’s lumbar spine, that being chronic spondylolisthesis with anterior positioning on S1 and with the reduction of the joint space distance and remodelling of the vertebral and plates consistent with a chronic lumbar spine disease (ARD page 16).
On 30 April 2018 Mr Devenish underwent a bone scan. The bone scan identified significant disco vertebral change of L5/S1 with significant anterolisthesis of L5 on S1. Low-grade facet joint changes at L5/S1 bilaterally were also noted (ARD page 17).
On 1 May 2018 Mr Devenish saw Dr Grant again. Dr Grant recorded that since Mr Devenish’s left TKR seven months ago he had a lot of low back pain and got spasms down the lower left-side of his back and had difficulty walking up stairs and standing still. Dr Grant referred Mr Devenish for a CT-guided facet joint injection (ARD page 72).
On 1 May 2018 Dr Grant referred Mr Devenish to Dr Mark Davies, neurosurgeon. In his letter of referral, Dr Grant relevantly stated:
“Thank you for seeing Michael Devenish, 57yrs, who present with long-standing low back problems. He had major right leg injuries in an MVA in 1979 and has had a lot of back problems since that time. He has had about seven months ago a LTKR with Dr Pinzewski and since then there has been a lot of lower back pain particularly left-sided with occasional spasms which he attempts to relieve with stretching his left side...” (ARD page 18).
On 3 May 2018 Mr Devenish had a CT-guided facet joint injection into his lumbar spine (ARD page 20).
On 3 May 2018 Mr Devenish had an MRI of his lumbar spine. The investigation revealed pars intraarticular defects at L5 with considerable spondylolisthesis as well as lateral foraminal stenosis with apparent compression of the exiting L5 nerve roots on each side (ARD page 21).
On 31 May 2018 Mr Devenish saw Dr Mark Davies, neurosurgeon. Dr Davies recorded the following relevant history:
“Michael has had intermittent non-disabling back and leg pain for years. Since December 2017 the pain has been severely affecting the back, buttocks, thighs, colds and feet...a facet joint injection was unhelpful” (ARD page 22).
Dr Davies diagnosed Mr Devenish as suffering bilateral L5 radiculopathy and isthmic grade 3 L5/S1 spondylolisthesis.
Dr Davies said Mr Devenish was very disabled from the pain associated with the pathology and given the severity of the pathology and the duration of pain he was pessimistic about improvement through nonoperative measures. Dr Davies spoke to Mr Devenish about the option of lumbar spine surgery. Dr Davies said surgery would have an 80% chance of helping Mr Devenish’s buttock and leg symptoms and there would be a 5% risk of him being worse off in terms of pain, weakness or numbness. Dr Davies noted that Mr Devenish wish to proceed with the surgery on 7 June 2018 (ARD pages 22 - 23).
On 7 June 2018 Mr Devenish underwent the lumbar fusion surgery (ARD page 26).
In a report dated 24 July 2018 Dr Davies recorded that Mr Devenish was happy with the surgery with complete relief of his radicular leg pain (ARD page 26).

Medical opinion evidence

In October 2018 Mr Devenish saw Dr Raymond Wallace, orthopaedic surgeon, in October 2018, after Mr Devenish had undergone the lumbar fusion surgery. Dr Wallace said at this time Mr Devenish did not complain of any lumbar spine symptoms and did not report any lumbar spinal injury as a result of a fall post left TKR in November 2017 (Reply page 20).
Dr Wallace said he was not able to provide an opinion on causation of Mr Devenish’s lumbar spine injury because he did not take a history of same. Dr Wallace said he was not able to provide an opinion on whether the claimed surgery was reasonably necessary without further review of Mr Devenish (Reply page 21).
In a medicolegal report dated 24 May 2019, Dr Davies recorded for the first time the history of Mr Devenish falling at home after his left TKR surgery. Dr Davies said after the fall Mr Devenish noted back pain and worsened leg pain (ARD page 30).
Dr Davies said:
“There is a direct causal link between Mr Devenish’s work-related knee injury, and the need for a total knee replacement, the fall sustained in the period shortly after knee surgery and the development of symptoms related to the spine pathology. Michael has a grade 2 and 3 L5/S1 isthmic spondylolisthesis. He has L5 pars defects, a common congenital defect in the structure of the L5 vertebrae (last lumbar vertebrae). This defect, present in approximately 5% of the population can lead to instability at the lumbosacral level. A hallmark of this long-standing instability is spondylolisthesis (slipping of the L5 on S1 vertebrae) in Mr Devenish’s case. This instability in many patients is asymptomatic and indeed in the majority of patients remain asymptomatic or minimally symptomatic throughout the life. Approximately one third of patients with this anatomical abnormality will develop symptoms during the lifetime and a small portion still to progress to surgery. Symptom onset is often precipitated by an injury such the fall. In Michael’s case a fall from a standing height caused by his knee giving way in the period immediately after knee surgery would be sufficient to render Michael’s otherwise asymptomatic spondylolisthesis, symptomatic. Patients with this condition have small L5/S1 exit foraminae where the exiting L5 nerve root chronically compressed, but as stated above, usually compressed without causing symptoms. The trauma of a fall can disrupt the fibrous connection between the two vertebrae generating excessive movement and subsequently nerve pain for the first time. It was this particular nerve pain that began following the fall and then progressed to a point which subsequently required spinal surgery. Is not inevitable that Michael would have developed symptoms from his isthmic spondylolisthesis without a fall. In my mind there is a clear relationship between Michael’s fall following the surgery and the development of symptoms from this previously asymptomatic L5/S1 spondylolisthesis” (ARD pages 30 - 31).
Dr Davies said that after the lumbar spine surgery Mr Devenish had experienced substantial improvement in his preoperative pain and that he had returned to work part-time on restricted duties without neurological deficit (other than in respect of long-standing restriction of movement of his right ankle) (ARD page 31).
In a forensic medical report dated 15 April 2019 Dr Matthew Giblin, orthopaedic surgeon, recorded the following history:
“Two weeks following the total knee replacement, he was walking out the back door at home when his left knee caused him to stumble and he tripped and fell, reinjuring the knee and hurting his back. His major concern however at that time was the knee and that was the focus of treatment. Over the ensuring weeks to months however, his knee improved, but his back became more of an issue for him...” (ARD page 33).
Dr Giblin recorded that there was no past history of “this or a similar problem” (ARD page 34).
Dr Giblin opined that Mr Devenish’s original injury went back to 2010, at which time he sustained an injury to his medial meniscus and chondral surfaces. Dr Giblin recorded that after Mr Devenish has his left TKR he had injured his back when his left knee caused him to fall, aggravating pre-existing isthmic spondylolisthesis (ARD page 36).
In a further report dated 28 May 2019 Dr Giblin opined that the total left knee replacement materially contributed to Mr Devenish’s lumbosacral condition. Dr Giblin said it was not uncommon for total knee replacement to occasionally cause the need to give way. Dr Giblin said Mr Devenish aggravated his knee and hurt his back in the fall, which led to the need for spinal surgery.
Dr Giblin said the fusion surgery performed by Dr Davies was both “reasonable and necessary” treatment connected to Mr Devenish’s knee injuries (ARD page 37).

REASONS

Did Mr Devenish suffer an injury to his back as a result of the injury to his left knee?

Mr Devenish has the onus to prove his case (Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1]).
The test in relation to standard of proof has been discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
“A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”

Whether Mr Devenish suffered an injury (or consequential condition) to his back as a result of injury to his left knee is a question of fact to be determined on the basis of the evidence.
In the Commission, a “common sense” approach is to be taken to determining questions of causation, taking into account the medical opinion evidence (Kooragang Cement Pty Ltdv Bates (1994) 35 NSWLR 452 (Kooragang); Lithgow City Council v Jackson [2011] HCA 36). In Kooragang the Court of Appeal referred to the fact that an event can set in train a series of events.
In this matter, the series of events contended for by Mr Devenish is that his left knee injury resulted in the need for the left TKR which caused instability in his leg resulting in the fall, which resulted in the onset of symptoms in his lumbar spine, which brought about the need for lumbar spine surgery.
In Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland) Keating J discussed the relevance of contemporaneous evidence such as clinical notes and medical reports.
What is squarely in issue in this matter, as it was in Ireland, is whether Mr Devenish had discharged his onus of proof in the circumstances where there is an absence of contemporaneous evidence corroborating the fall being the cause of the onset of symptoms in the lower back.
In Ireland His Honour Keating J warned against the dangers of decision-makers relying on findings of credit rather than evidence and emphasised that all of the evidence must be weighed up in determining questions of fact (at [91]).
I am satisfied that it is more likely than not that Mr Devenish’s left knee injury and the TKR surgery contributed to his fall at home on 26 November 2017.
In his statement Mr Devenish described the fall as his left knee “giving way” causing him to stumble and fall onto his left side (ARD page 2). Mr Devenish’s description of mechanism of injury is not corroborated by the contemporaneous report of the physiotherapist which does not refer to cause of the fall being his knee giving way. There is also no reference to Mr Devenish falling heavily on his left side.
However, I note the fall occurred 19 days after Mr Devenish’s left TKR surgery and in circumstances where he was undergoing rehabilitation treatment. I also accept Dr Giblin’s opinion that it is “not uncommon” for a TKR to occasionally cause the knee to give way post-surgery. There is no evidence that contradicts Dr Giblin’s generic opinion.
The issue as to whether the fall caused an onset of symptoms in Mr Devenish’s lower back is more complicated. Whilst the medical evidence generally supports a worsening of back symptoms after the left TKR, there is no contemporaneous evidence linking the fall with the onset of back pain.
There are several inconsistencies between Mr Devenish’s statement evidence and the contemporaneous medical records. The inconsistences cause me to doubt the reliability of Mr Devenish’s evidence and his claim that the fall caused the onset of symptoms in his lower back.
Mr Devenish 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 Mr Devenish 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.
A fall is a traumatic event which is likely to bring about an immediate onset of pain. As a mater of common sense, it is difficult to understand why Mr Devenish’s back pain was not immediately identifiable and reported, notwithstanding that Mr Devenish’s major concern may have been re-injury to his knee.
In the period prior to the first report of back pain (10 January 2018) Mr Devenish attended his physiotherapist on six occasions, his general practitioner’s office on five occasions and saw Dr Pinzewski. I accept that Mr Devenish’s primary concern may have been his re-injury to his left knee. However, there is no report of back pain in the medical evidence during this time despite reporting other symptoms associated with the knee. It is difficult to accept that Mr Devenish would have suffered a significant injury to his back and not reported it during this period.
Mr Devenish has also provided inconsistent evidence about the timing of the onset of his back pain.
In his statement made on 6 August 2021 Mr Devenish said after the fall he experienced pain in his back, buttocks thighs, calves and feet (ARD page 2). Mr Devenish’s statement simply repeats the symptoms reported to Dr Davies on 31 May 2018 (ARD page 22).
Mr Devenish asserts that he told Dr Pinzewski on 20 December 2017 he had ongoing back pain, however there is no such reference in Dr Pinzewski’s report (ARD page 15).
Mr Devenish said that he told Dr Grant on or about 27 April 2017 that his back had been playing up “essentially since his left knee operation”. Mr Devenish’s evidence is drawn from the Dr Grant’s records (ARD page 72).
Mr Devenish’s evidence that he experienced back pain since the left TKR is not consistent with his evidence that the fall was the precipitant of his back pain. Rather, it suggests the onset of pain was since the left TKR and prior to the fall.

As noted above the first mention of back pain in the medical records is on 10 January 2018, over six weeks after the fall. The physiotherapist’s notes record lumbar pain “without MOI”. During the arbitration hearing the respondent submitted “MOI” meant “mechanism of injury”. Mr Devenish did not submit otherwise.
The report given by Mr Devenish to the physiotherapist regarding the lack of any mechanism of injury for the onset of back pain is not consistent with his claim that the fall was the cause of the onset of the pain.
I reject Mr Devenish’s submission that there is no need for consistency in the evidence regarding the timing of the onset of his back pain. Mr Devenish has made a specific allegation that the injury to his back resulted from the fall. He has the onus of proof. Mr Devenish’s own evidence does not enable a positive conclusion to be drawn about whether the fall cause the onset of symptoms in his back.
The lack of any contemporaneous evidence corroborating Mr Devenish’s allegation that the fall caused the onset of symptoms in his back is a significant omission in his case.
Notwithstanding the allegation of pain in multiple body parts after the fall (back, buttocks, thighs, calves and feet), there is no corroborating evidence of back pain immediately after the fall (or any pain to the other body parts).
The first-time back pain is referred to in the medical evidence is the reference to right-sided lumbar spine pain with no mechanism of injury.
The first time the complaints concerning the back, buttocks, thighs, calves and feet was mentioned was when Mr Devenish saw Dr Davies on 31 May 2018, over six months after the fall. When Mr Devenish saw Dr Davies on 31 May 2018, he did not tell him that the fall after his left TKR was the cause of the onset of his pain.
In this matter, this absence of any corroboration evidence case significant doubt on Mr Devenish’s allegation that he suffered an injury or consequential condition to his back as a result of the injury to his left knee. In my view, the fall being the cause of the back pain appears to be a retrospectively reconstructed case theory unsupported by the contemporaneous evidence. Further, Mr Devenish elected to undergo lumbar spine surgery without making a claim for compensation at the time. It is more likely that not that at the time Mr Devenish elected to proceed to surgery he did not believe the fall was responsible for the onset to symptoms in his back,
Mr Devenish’s evidence regarding his knee symptoms improving after the fall and his back pain progressively worsening is also not entirely consistent with the contemporaneous records. Whilst the first mention of back pain on 10 January 2018 was in the context of Mr Devenish’s knee symptoms settling after the fall, as was submitted by the respondent, the clinical notes indicate some improvement in Mr Devenish’s back pain over time.
Further, as submitted by the respondent, the physiotherapist’s reports refer to other incidents and activities that caused aggravations to Mr Devenish’s back condition after the date of the fall, including undertaking physical pool cleaning work on 23 January 2018 and getting out of a car on 20 February 2018. These entries cast further doubt on Mr Devenish’s claim that the fall caused the onset of symptoms in his lower back. It is more probably, or equally probable, that Mr Devenish had a longstanding back condition, as noted by Dr Grant, the symptoms of which were aggravated by strenuous activity or awkward movements.
The evidence concerning the fall bringing about the onset of back pain is neither cogent nor compelling. There are key inconsistencies in his evidence concerning the mechanism of the fall and the timing of the onset of pain in his lumbar spine. Mr Devenish has not addressed certain parts of the medical records, such as Dr Grant’s reference to him suffering from longstanding back problems since 1979 and the references to aggravations to his back after the date of the fall recorded in the physiotherapist’s reports.
The principles relating to expert evidence were discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock). In Hancock Beazley JA said at [85], in non-evidence-based jurisdictions such as the Commission, the question of “acceptability of expert evidence will not be one of admissibility but of weight.” What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant and information from x-rays and other tests.”
The assumptions underpinning an expert opinion must provide a “fair climate” to ground the opinion. The assumed facts need not be set out an exhaustively. It is sufficient that the overall context be put as the facts upon which the ultimate opinion is based (Hancock).
In this matter, the objective evidence does not adequately support the onset of back pain after the fall on 26 November 2017. The only objective evidence as to the timing of the onset of back pain is recorded in the physiotherapist’s report on 10 January 2018 – “right-sided LSP with no MOI.” Whilst the evidence supports a worsening of back pain since the left TKR, there is no satisfactory evidence which links the onset of back pain with the fall.
In the circumstances where the histories relied upon by Drs Davies and Giblin are not supported by the contemporaneous evidence and are inconsistent with the report of Mr Devenish to his physiotherapist on 10 January 2018, I find both doctors opinions in respect of supporting a causal link between the back symptoms and the fall to be of limited probative value.

Also, both doctors have failed to address how such significant symptoms in Mr Devenish’s back, including nerve pain would not have been identifiable immediately after the fall but gradually came on over time to the point where surgery was required. Dr Giblin does not appear to have been provided with a complete history in that he recorded Mr Devenish as having no past history of back problems, which is entirely inconsistent with Dr Grant’s letter of referral of 1 May 2018. Neither doctor have addressed the aggravation injuries recorded in the physiotherapist’s reports after the fall.
I am not satisfied on the balance of probabilities that Mr Devenish suffered an injury or consequential condition to his lower back as a result of the fall on 26 November 2017. It follows that the claimed surgery is not reasonably necessary as a result of the injury or consequential condition.
In summary the following factors lead me to the conclusion that I cannot be satisfied on the balance of probabilities that Mr Devenish suffered an injury to his back when he fell on 26 November 2017:
(a)    Mr Devenish’s failure to report symptoms to his back after the fall, notwithstanding being in receipt ongoing medical treatment;
(b)    Mr Devenish’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)    Mr Devenish’s failure to report the fall being the cause of the onset of pain in his lumbar spine (and other body parts) to Dr Davies in April 2018;
(d)    The inconsistent evidence given by Mr Devenish about the timing of the onset of his back pain;
(e)    the absence of any evidence from Mr Devenish 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 Mr Devenish’s statement which was not made until 6 August 2021 and draws largely on the report of doctors concerning symptoms;
(g)    I find the factual basis to the claim provided to the experts relied upon by Mr Devenish to be inaccurate and therefore their opinions to be of limited probative value, and
(h)    the absence of any evidence from the doctors as to how such severe pathology in Mr Devenish’s lower back could not cause an immediate onset of pain post-fall but emerge at a later point and gradually worsen over time.
There will be an award for the respondent on the claim for medical expenses, in particular the claimed lumbar fusion surgery and associated expenses.

[2021] NSWPIC 413

14 October 2021