Fabian v Poletech Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fabian v Poletech Pty Ltd [2025] NSWPIC 141
APPLICANT:	Eddie Fabian
RESPONDENT:	Poletech Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	10 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for lump sum compensation for undisputed left knee injury and disputed consequential conditions; credit submissions; New South Wales Police Force v Winter considered and applied; consequential conditions; Kumar v Royal Comfort Bedding Pty Ltd, and Moon v Conmah Pty Limited considered and applied; common sense causation; Kooragang Cement Pty Ltd v Bates applied; Held – claimed consequential conditions resulted from subject injury; referred for medical assessment.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of injury sustained to his left knee on 2 September 2020 in the course of employment with the respondent, the applicant has consequently sustained lumbar spine, right shoulder, left elbow, scarring and sleep disorder conditions. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 2 September 2020 – Personal Injury. Body systems/parts: left lower extremity (knee); left upper extremity (elbow); right upper extremity (shoulder); lumbar spine; TEMSKI/scarring, and respiratory system (sleep disorder). Method: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents, excluding all reports of Dr Hale and Dr Harrington. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Eddie Fabian, sustained injury to his left knee on 2 September 2020 in the course of his employment with the respondent, Poletech Pty Ltd.
The applicant claimed lump sum compensation for the left lower extremity (knee) and consequential lumbar spine, right shoulder, left elbow, scarring and sleep disorder conditions.
Injury to the left knee was not disputed. The respondent disputed the claim for consequential back, right shoulder, left elbow and sleep disorder conditions.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing of this matter on 20 February 2025, the applicant was represented by
Mr Hickey of counsel, and Mr Glavan, solicitor, and the respondent by Mr Grimes, of counsel, and Mr Murray, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence.

Statement

The applicant provided a statement dated 31 October 2023. He stated that to the best of his recollection he had not suffered from any significant injury which occurred before the workplace injury that is the subject of this claim. He said that he did not have any major health issues, and he was in good physical health.
The applicant recounted in his statement the substantial surgical and physiotherapy treatment that he underwent for his left knee injury on 2 September 2020. He also recounted that by late 2020 or early 2021 he developed the onset of symptoms of pain in his back during his subsequent treatment. He said that he noticed pain in his right hip and lower back following from his difficulties in walking with his injured left knee, with subsequent altered gait. He described how he had difficulty sleeping due to the pain in his left knee, with disturbance in the quality and length of his sleep. He said that prior to the subject knee injury he slept all night long with no problems but following the knee injury he was waking throughout the night, and his sleep was broken. He also referred to weight gain.
He also described what he described as multiple falls due to his difficulties with walking on his left knee, resulting in falls which affected his right shoulder and his back. He recounted instances of such falls on 27 April 2021 and in November 2021 when his left knee gave away and he hurt his back when he fell. The applicant said that his left knee was very weak and unstable in the first nine months before he underwent surgery in July 2021, and again in June 2022.
The applicant also said that he hurt his right shoulder as well as his back in these falls due to the difficulties of pain and instability with his left knee. He also said that he had a fall due to his left knee condition on about five occasions when he landed on his right shoulder prior to his surgery. He said that in total he had about 20 to 30 falls after the injury to his left knee because of his left knee condition up until the time of surgery. He referred to a steroid injection to the right shoulder in May 2023.
The applicant also said that by about April 2022 he developed pain in his right hip which he believed came about because he had been limping for so long and bearing his weight on the right side of his body. He said that he noticed symptoms of left shoulder pain while swinging his arms on a treadmill. He also said that he noticed cramps in his elbows and hands due to inactivity.
The applicant said that he must take medication every night before bed to try to help him to sleep and he has become completely reliant upon this medication to get a few hours sleep.

Clinical records and treating reports

The clinical records of the Singleton Medical Centre contained a note dated
19 November 2013 referring to back pain and weight gain. On 15 May 2014 it was noted that there was back pain over six months, waking with pain, and on examination it was noted there was a slight decrease in the range of movement and twinge on flexion. On
27 May 2014 it was noted there was ongoing back pain for the previous six months and pain at night while lying supine, although it was noted that investigations had never been done, there was no spinal tenderness and normal range of movement and normal flexion.
On 14 April 2015 lumbar back pain was noted and a “back pain CT basically shows no issues of neural compromise or stenosis”. On 18 September 2015 attendance was recorded for multiple problems, including a note that there was back pain on and off and tiredness with four to six hours sleep, with no note of examination findings and instead a note of discussions as to lifestyle matters such as exercise, eating healthy and weight loss.
On 18 August 2016 it was noted that there was lumbar pain, waking with pain and sleeping sitting in a chair. An entry of 6 September 2016 noted longstanding lumbar back pain and muscle spasms, with medication being taken. On 6 December 2018 it was noted that there were back pain issues for which Voltaren helped.
Dr McGrath in his treating orthopaedic report of 10 September 2020 noted that since the work injury the applicant had been in a lot of pain and struggled to weight bear on his left knee.
A clinical note on 6 October 2020, of Dr Marshall, the applicant’s treating general practitioner (GP) at the time, noted injury, swelling and limping and tenderness, as twice weekly physiotherapy. Dr McGrath in subsequent reports, including 1 December 2020, noted progress and improvement but also struggling with weakness on his left side with a failure to use a muscle on that side and apprehension to lateral translation. On 10 December 2020
Dr Marshall recorded worsening left knee pain, limping and use of a leg length tubigrip.
On 15 December 2020 Dr Marshall recorded that the applicant’s sore left knee was aggravating his sleep, and his knee had been flared by physiotherapy. On 17 December 2020 Dr Marshall recorded a consultation due to left knee pain and that the applicant had been using a stick which was less needed now, and also there was soreness after 5 to 10 minutes and increased pain after 15 minutes with good days and bad days and taking pain medication when trying to work due to pain levels. In a notation of 6 January 2021 there was a record of some improvement including better sleep, use of a knee brace but some swelling and restriction in movement on examination. There were further notes of knee pain in February 2021 with a feeling of giving away if too active. On 18 March 2021 Dr Marshall noted complaints of pain when doing housework and the knee giving way in the shower and the applicant felt that he loses stability for a second at times.
Dr Harbury provided a treating orthopaedic report on 1 April 2021 in which it was noted there was knee pain present with all walking and the applicant did get some rest but had no symptoms and no resilience and could not compensate for uneven ground and struggled with stability. He also noted a feeling of instability and that there had been three falls so far.
There were further clinical records noting limping in April 2021. There was a note that the applicant felt that it had put on weight causing him to feel that his back was made worse. In a treating report of 10 May 2021 to the workers compensation insurer, there was further note by the treating GP of a continuation of limping and instability. On 14 May 2021 Dr Marshall noted complaints of falls since the prior surgery in which stability was queried as the applicant had slipped bad had been unable to prevent falls multiple times with flareups of pain.
Dr Harbury in a report of 13 May 2021 noted worsening of left knee function, and unpredictable instability and knee weakness and that the applicant had nearly fallen a number of times. Dr Harbury provided a subsequent operation report of 12 July 2021 in relation to left knee surgery. That report described confirmation of a large loose body that was removed.
Further falls were noted in the clinical records in June and July 2021. On 9 September 2021 the clinical note recorded walking with a straight knee and stiff leg and sore knee. It was noted that the applicant’s back was “always tiny problem” but had been aggravated since the knee injury. It was noted that the applicant had mentioned this previously in the context of falls and the applicant felt that he could not do things with his knee due to the pain.
Shoulder and back pain were recorded on 7 February 2022 possibly related to the falls and limping. An ultrasound/X-ray referral for the right shoulder by Dr Marshall dated
7 February 2022 noted “falls onto right shoulder secondary to knee injury, ongoing clicking and pain”. Poor sleep was noted on 25 February 2022 in a consultation on review for the knee injury.
A physiotherapy note of 21 March 2022 referred to right shoulder pain.
Dr Harbury provided an operation report of 27 June 2022 for a left knee arthroscope and biopsy/chondroplasty for left knee pain. On 4 August 2022 Dr Harbour noted some left knee improvement. However subsequent clinical records noted swelling and restriction of movement. Worsening left knee symptoms were recorded on
3 February 2023 with worsening numbness and burning sensation and slight limp. In March 2023 Dr Marshall noted altered gate and emergence of knee pain. Thereafter there was a change in the treating GP.
On 1 April 2023 a clinical note recorded low back pain, weight gain secondary to inactivity knee problems and referral for a sleep study. A clinical note of 20 April 2023 noted rotator cuff tendinitis and a trial of a steroid injection for the right shoulder. The applicant underwent the sleep study on 13 April 2023. A referral by Dr Morrison, treating GP, dated 27 April 2023 noted the subject left knee injury, ongoing pain and swelling, shoulder injury after a fall due to knee instability, chronic low back pain due to reduced ability to exercise safely leading to weight gain and deconditioning and altered gait since the knee injury.

Dr Harrington and Dr Hale

Dr Harrington and Dr Hale provided reports which were only admitted into these proceedings for the purpose of considering the histories recorded, and not in respect of any commentary or opinion provided, due to the operation of reg 44 of the Workers Compensation Regulation 2016.
Dr Harrington provided reports to the workers compensation insurer dated 1 August 2022 and 12 December 2022. In his earlier report Dr Harrington noted a history of injury to the applicant’s left knee, a filling of instability, complaint of some trouble with the right shoulder and lower back pain. Dr Harrington in his latter report recorded a similar history including painful right shoulder with limited movement and a “strange habit” of hyperextending the elbow regularly otherwise it locks or jams.
Dr Hale provided a report to the workers compensation insurer dated 18 June 2021. Dr Hale noted the history of left knee injury, antalgic gait, later increased knee symptoms including instability and that the applicant had nearly fallen a number of times, with ongoing pain, instability, swelling and clicking. Dr Hale noted that the pain disturbs the applicant’s sleep. He noted that the applicant reported that he had actually fallen to the ground four times.

Dr Bodel and Dr Machart

Dr Bodel, orthopaedic surgeon, provided reports to the applicant’s solicitors dated
16 June 2022 and 24 April 2024.
In his report dated 16 June 2022, as amended, Dr Bodel noted the history of left knee injury, with some improvement following surgery by Dr Harbury. He noted continuing instability in the “right” [sic] knee and there had been multiple episodes where the knee would give way and these falls had been reported to the GP and treated conservatively. He noted left knee pain, right shoulder girdle pain and lower back pain.
Dr Bodel was of the view that the back complaint was a consequential injury due to the limp on the left-hand side and this had aggravated, exacerbated and deteriorated underlying degenerative change. It was also of the view that the right shoulder pain and stiffness was the result of multiple episodes of giving way of the knee due to falls and landing on that side causing localised confusion and pathology. He was of the view that the consequential injuries followed that of the left knee primarily at the lower back and also the right shoulder due to abnormal gate pattern and the use of crutches.
In his report dated 24 April 2024, Dr Bodel summarised the consequential injuries following the left knee injury as being a lower back injury due to left sided limp, right shoulder injury as a result of multiple falls when the left knee gave away, weight gain, arm and elbow cramps and sleep disturbance. He also noted that due to the episodes of the left knee giving way, the applicant had further injuries elsewhere including the lower back, the right hip, the right shoulder and elbows. He noted cortisone injections for the shoulder as well as intensive physiotherapy. Dr Bodel commented on imaging and scans in respect of the right shoulder and lumbar spine.
He was of the view that the episodes of multiple falls due to knee instability and the ongoing limp following the left knee injury caused consequential problems with the lower back, both hips, left elbow and right shoulder.
He diagnosed traumatic dislocation of the left patella, rotator cuff injury of the right shoulder, mechanical backache associated with aggravated degenerative disc disease due to the abnormal gate pattern, limp and the favouring of the lower part of the back because the applicant could not kneel or squat causing aggravation, acceleration, exacerbation and deterioration of the back condition. He diagnosed lateral epicondylitis of the left elbow.
Dr Machart, orthopaedic surgeon, provided a report to the respondent solicitors dated
7 August 2024. He recorded a history of the left knee injury, non-resolution of knee symptoms and several subsequent falls and pain in the whole body. He noted that the applicant said that he hutthe right shoulder through the falls with temporary benefit from steroid injection. He noted lower back pain making it difficult to bend and no specific injury to the other parts of the body. He also noted pain in the elbows and a feeling of instability in the left leg.
Dr Machart was of the opinion that following review of medical information provided and in consideration of the narrative provided by the applicant, he “did not see evidence of consequential or direct injury to areas other than the left knee”. He noted contemporary evidence of falls and that there was no contemporaneous evidence of specific injury in any of the falls that caused a permanent disability.
Dr Machart diagnosed dislocation of the left kneecap but did not diagnose pathology in “areas other than the left knee related to the incident” as he “did not see contemporaneous evidence of such”. He was of the opinion that none of the other listed body parts were “evident as direct or consequential injury, or in the contemporaneous evidence”.

Dr Freiberg and Professor Grainge

Dr Freiberg, consultant physician, respiratory and sleep medicine, provided a report to the applicant’s solicitors dated 25 September 2023.
Dr Freiberg took a history of left knee injury at work and to subsequent surgical interventions and consequential injuries including the back on the right shoulder. He noted the applicant remains in chronic pain and the pain is worse when he tries to undertake physical activity, and he requires pain medication to help him sleep each night. He noted that the applicant as a result of the workplace injury had increased his weight to 109kg. He also noted the intake of medication every night otherwise the applicant could not sleep.
Dr Freiberg took a sleep history of a typical night sleep before the workplace injury as being an uninterrupted nine hours and he would wake refreshed and on reflection with score 0/24 on an Epworth Sleepiness Score. He noted that following the subject injury the applicant would retire at 11.00pm and would not be able to sleep until 5.00am when he would eventually have about two to three hours of sleep and noted that the applicant developed severe hyper somnolence with an Epworth sleepiness score of 20/24. He noted that the inability to sleep was contributed to by the applicant’s pain and also due to racing thoughts and agitation.
He noted that the applicant was subsequently prescribed medication and with the combination of medications he slept between 8 to 10 hours with occasional arousals due to pain. He noted that the applicant avoids sleeping on his back because he wakes short of breath in this position and spends most of the night sleeping on his side. Dr Freiberg noted that the applicant still wakes unrefreshed from his sleep and score is 15/24 on an Epworth sleepiness score. Dr Freiberg observed that he noticed during his interview with the applicant that he was constantly yawning and that with pauses in the conversation the applicant appeared to almost nod off to sleep.
Dr Freiberg noted the sleep study of 13 April 2023, at which time the applicant scored 18/24 on an Epworth sleepiness school. He noted that at the time of the study the applicant was on a combination of antidepressant and antipsychotic medications. He noted that the sleep study performed on these medications demonstrated prolonged sleep duration, and borderline mild sleep apnoea not requiring treatment intervention. He commented that the major cause of the applicant’s sleep fragmentation was spontaneous arousal due to pain.

Dr Freiberg was of the opinion that the most likely aetiology of the applicant’s persistent hyper somnolence is his spontaneous arousals in sleep due to pain and the sedative effects of the antidepressant and antipsychotic medications. He was of the view that the applicant’s persistent hypersomnolent was not present prior to the workplace injury and would have a significant effect on his ability to return successfully to full-time work to undertake activities of daily living. He was of the view that from a sleep perspective as long as the applicant remains in chronic pain and requires sedating medications prior to sleep his somnolence will be persistent.
Professor Grange, consultant thoracic physician, provided a report to the respondent’s solicitors dated 27 July 2024.
Professor Grange noted history that prior to the subject work accident the applicant said that he slept from about 10.00pm to 7.00am and had no overnight waking and no daytime somnolence. Prof Grange recorded that the applicant said that his weight prior to the injury was about 80kg but could not recall weighing 94kg as recorded by his GP on
17 July 2019.
Professor Grange recorded that the applicant said that following the subject work accident his sleep was disturbed with pain causing problems with sleep initiation and maintenance as well as problems with rumination and intrusive thoughts. He recorded that the applicant said that he goes to bed at about 11.00pm and has a one to two hour sleep latency. He noted that the applicant said that he suffers from neck, back and knee pain which wakes him overnight and he now has a history of snoring and apnoea and rises at about 7.00am. Professor Grange recorded that the self-reported weight was 104kg and the Epworth sleepiness score was 19.
Professor Grange noted the sleep study referred to in the report of Dr Freiberg, but he did not have a copy of the raw data.
Professor Grange noted that the applicant appeared to fall asleep during the consultation and he made an effort to make it clear that he was sleepy but when it was pointed out to the applicant that this was not helpful for an assessment, Prof Grange noted that these attempts to fall asleep ceased, suggesting that they may have been voluntary.
He was of the opinion that the applicant had evidence of sleep fragmentation with spontaneous arousal, most likely secondary to pain. Prof Grange was of the opinion that the applicant was also taking medication which can cause daytime somnolence.
Professor Grange discussed the application of the relevant guidelines and noted that while they are clear in prohibiting any impairment due to pain, he did not believe that the guidelines are clear in the exclusion of secondary factors of pain including sleep disturbance whether there is objective evidence of a sleep disturbance on a sleep study, which cannot be manipulated.

Dr Harrington and Dr Hale

The following reports were admitted as to matters of history only and I have had no regard to any opinion or comment otherwise contained therein.
Dr Hale provided a report to the workers compensation insurer dated 18 June 2021. Dr Hale recorded the subject injury. Dr Hale recorded that the applicant reported ongoing pain, instability, swelling and clicking and that the pain disturbs his sleep. He also recorded that the applicant reported episodes of instability up to 10 times per day whenever he changes direction. Dr Hale recorded that the applicant reported that he had actually fallen to the ground four times. Dr Hale also noted that the applicant required some management for back pain.
Dr Harrington provided reports dated 1 August 2022 and 12 December 2022 to the workers compensation insurer. He recorded a history of the subject injury. Dr Harrington noted that the applicant described feeling instability in his left knee. He also noted that the applicant reported trouble with his right shoulder and also lower back pain. In his report dated
12 December 2022 Dr Harrington confirmed the history of ongoing instability and a history of back pain as well as problems with the dominant right shoulder. Dr Harrington also noted that the applicant reported that he hyper extends his elbow causing a click in the joint and he does this two or three times every hour otherwise the elbow locks or jams.

Reasons

There was no dispute that the applicant sustained an injury to his left knee on
2 September 2020. The claims for the consequential conditions were disputed, that is in respect of the lumbar spine, the right shoulder, the left elbow and the sleep disorder.
In summary, the respondent attacked the applicant’s credit for what was said to be a failure to disclose his symptoms or conditions prior to 2 September 2020, as summarised above. The respondent went further in submissions, describing the history the applicant provided to various doctors as being “fanciful” and being deliberately misleading and that prior history had been concealed, at least in respect of Dr Bodel. The applicant objected to these submissions on the basis that there had been no application for cross examination of the applicant on these points, there being a distinction between submissions on the basis of inconsistent histories and submissions that the applicant had been deliberately misleading in this regard. The respondent replied that it was well accepted in Commission’s proceedings that it was not necessary to cross examine the applicant on these points and submissions in this regard were permissible.
I do not accept the respondent’s submissions in this regard. While it is correct that submissions may be made, without cross-examination, on the basis of unreliable histories and hence the applicant’s evidence should be treated with caution without supporting objective or other evidence, in my view this was neither the tenor nor the structure of the respondent’s submissions, having regard to the totality of those submissions. The respondent outlined the prior matters, which will be noted below, in the context of inconsistencies and then urged a conclusion that that the histories provided by the applicant such as those to Dr Bodel, Dr Fryberg, Dr Machart, Dr Harrington, Dr Hale and Prof Grange were fanciful and deliberately misleading and involved concealment.
The respondent also noted that the applicant had the opportunity prior to the hearing of this matter, having regard to the documents attached to the reply, to provide some form of explanation by way of further statement but he did not do so. This to my mind turns the process of procedural fairness on its head. In my view, it was reasonably clear from the documents attached to the reply and the application that a submission that the applicant’s evidence was unreliable could be made by the respondent. However, it was not clear from those documents that there could be submissions, indeed forming the ultimate conclusion of the respondent’s submissions as presented at the hearing, that the applicant had provided a fanciful history or histories and that he had been deliberately misleading in this regard.
It was observed in New South Wales Police Force v Winter, [1] that:
“In West v Mead [2003] NSWSC 161; (2003) 13 BPR [24,431] at [95]-[99] I collected authorities about the manner in which the rule in Browne v Dunn was affected by exchange of documents between the parties before a hearing commenced:
... Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness's account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness' account is not challenged in cross-examination.
…The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation   has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which   counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ..."
[1] [2011] NSWCA 330 [81] ff.
There had been no notice given by the respondent as to the submissions regarding being deliberately misleading and concealment of prior history. The applicant was not given the opportunity to explain himself in respect of the assertions that he had been fanciful in respect of the history or histories he had given, and he had been deliberately misleading and he had concealed prior history. In my view, the implications urged by the respondent were not obvious from the evidence, the dispute notices and the conduct of the hearing.
In my view the respondent’s submissions as to the applicant’s credit, and to the histories that he provided, must be rejected in their entirety for failing to afford procedural fairness to the applicant. The structure and logic of the respondent’s submissions were directed to the contention that the applicant had been deliberately misleading and had concealed matters of prior history.
However, if I am wrong on this point, then I will deal with what might be inferred from the submissions that there is the lesser point that the applicant had provided unreliable evidence based upon inconsistent histories. I do not accept this inferred submission.
The respondent’s submissions in this regard turned upon the history in the clinical notes taken by the GP, from 2013 to 2018, as noted above. While those notes from 2013 to 2014 indicated a period of some six months with respect to back pain, and to some extent wakefulness, the notes in 2014 specifically indicated that there had been only a slight decrease in range of movement and a “twinge”, and by 27 May 2014 it had been noted that there had been no investigations ever done, there was a normal range of movement and flexion and no spinal tenderness.
More than one year then passed when the attendance on 18 September 2015 recorded a visit for multiple reasons including back pain and tiredness on and off with four to six hours sleep. There was no note of examination findings, nor was there a record of the extent of such back pain and sleep issue, rather there was a note of discussions of lifestyle matters.
Individual notes in August and September 2016 referred to sharp pain at times and “longstanding back pain” and muscle spasms. These notes also recorded the prescription of medication and a recommendation for physiotherapy. It is unclear whether there was any physiotherapy undertaken. Again, these notes did not identify or describe the duration, and extent of the back pain. The August 2016 note referred to a lumbosacral CT and X-ray but did not note the results. There was no record of diagnosis, nor of any continuing restrictions or issues. These notes in my view did not provide a sufficient or satisfactory basis for a conclusion that this was a significant back condition at that time, nor for any time after September 2016. In my view, these entries are not inconsistent with the applicant’s evidence that he could not recall any prior significant injury or health issue.
The note in December 2018 was an individual entry with little significance. It was in the context of a consultation for abdominal cramps. There was no mention of the location of the back pain, diagnosis or restrictions. Medication was noted but no details given. These notes are not inconsistent with the applicant’s histories provided after 2 September 2020, in my opinion.
In my view, the above analysis indicates that there was not a prolonged and significant back problem from 2013 to 2018. I do not accept the respondent’s submissions in this regard.
I also do not accept the respondent’s submission that this dovetails into sleep problems. First, I have found otherwise in respect of conclusions that can be made from the above clinical notes. Second, the sleep problems to which the respondent referred were noted on three instances in May 2014, September 2015 and August 2016. Although there was some quantification in one instance, there was no record of the extent of any issue over time, and indeed the last entry was more than four years before the subject injury. This in my view did not provide sufficient basis to conclude that there was a significant issue as to sleep prior to the subject injury. In my view, these entries are not inconsistent with the applicant’s evidence that he could not recall any prior significant injury or health issue in this regard. I do not accept the respondent’s submissions on this point as to credit and as to an incorrect history being relied upon by Dr Freiberg and Prof Grainge.
The clinical notes referred to by the respondent prior to 2 September 2020 are in marked contrast to the clinical notes recorded after 2 September 2020. Even if it were the case that the applicant’s histories provided after 2 September 2020 were inconsistent and unreliable without more, a conclusion that I do not accept, then the clinical notes post
2 September 2020 provide strong support for the applicant’s evidence, in my view. Indeed, as I understood the submissions, the respondent did not take serious issue with the clinical notes recorded after 2 September 2020.
I have summarised those clinical notes above. It is necessary to consider some of the detail at this point.
Following the injury of 2 September 2020, the applicant was recorded by his treating medical practitioners as consistently and repeatedly complaining of pain, restrictions and limping in respect of his left knee. He also recorded complaints of back pain and issues with sleep, leading to a sleep study.
For example, Dr McGrath recorded on 11 September 2020 that the applicant had been in a lot of pain, struggled to weight bear and walked with an antalgic gait, and on
1 December 2020 the applicant had often been having some interrupted sleep because of back pain. Dr Marshall on 15 December 2020 noted a sore left knee aggravating sleep and on 18 February 2021 noted the applicant felt his leg gives way if too active with pain every day and now tiredness and back pain. Mr Lee physiotherapist on 26 March 2021 noted the applicant was still having episodes of instability and loss of function.
In my view, these and subsequent clinical notes and reports demonstrate left knee instability and pain, altered gait, back pain and sleep disturbance.
In relation to falls, Dr Marshall on 18 March 2021 noted knee giving way in the shower and feeling of loss of stability. Dr Harbury reported in May 2021. He noted instability and multiple falls over time, with flare up of pain. On 11 June 2021 Dr Marshall noted a fall two days previously where the leg gave way, and the applicant collapsed. On 9 July 2021 Dr Marshall recorded a slip and fall at home with clumsiness due to gait. On 2 November 2021
Dr Marshall recorded two trip and falls while gardening, felt by the applicant to be related to his knee, with right ribs injured and jarred back. On 2 December 2021 Dr Marshall noted complaint of shoulder pain since the falls following the knee instability. An X-ray and ultrasound of the right shoulder imaging request by Dr Marshall dated 7 February 2022 noted falls onto the right shoulder secondary to knee and ongoing pain. On 21 March 2022 physiotherapist noted right shoulder MRI.
In my view, the above notes support the applicant’s evidence of multiple falls, due to left knee instability, onto or affecting the right shoulder, and also the back, with ensuing shoulder and back pain.
The respondent did not dispute this history, rather it pointed to the timing of the applicant’s referral for scans, the involvement of his solicitors as to that timing and the lack of pathology said to be shown on the scans in the context of applicant’s complaints and motivation for seeking scans.
There was mention in Dr Marshall’s notes on 15 April 2021 of the applicant having seen a solicitor and wanting an unfit medical certificate. On 2 December 2021 Dr Marshall noted that a lawyer wanted to document all potential complications of the knee injury. On 7 July 2022
Dr Marshall noted the applicant was wanting X-rays of back and hip “according to lawyers”, and X-rays were requested. On 23 March 2023 Dr Marshall noted complaint of back and shoulder pain and that “lawyers are dictating what scans are required” but he also noted an email with no evidence of who was requesting these.
Reliance was placed by the respondent on the entry on 23 March 2023 as a matter of concern in considering the motivation of the applicant in requesting scans. However, complaints of shoulder and back pain had been recorded well before 23 March 2023, as the above discussion demonstrates. Further, right shoulder X-ray and ultrasound had been requested by Dr Marshall in February 2022, well before the note of March 2023. In my view, no conclusion can be drawn from this or earlier notes as the applicant’s motivation to seek scans. I do not accept the respondent’s submissions.
The respondent also referred to a lack of pathology in respect of the back, as well as the right shoulder, in the context of reported symptoms, as well as the motivation argument and credit issue dealt with above. It was also submitted that there was no link between specific falls at the time with referrals for treatment or investigations, which were apparently done later at the direction of the applicant’s solicitors.
Dealing with the latter submission, I have found otherwise in terms of referrals for scans. I do not accept that submission. There is no evidence before me to suggest that scans were requested at the direction of the applicant’s solicitors. Scans had been requested before that time in March 2023. The reference to “direction” was ambiguous, as Dr Marshall had noted there was no evidence to show who had been the author of an email in this regard. Further, this submission does not have sufficient regard to the position of Dr Marshall, whose notes make clear that he brought an independent mind as a treating medical practitioner to questions of investigations and treatment. In my view, no conclusion can be drawn from the change in treating GP to Dr Morrison, who in turn demonstrated the same medical approach.
In relation to the alleged lack of a link between the falls and subsequent investigations, this in my view is incorrect, as the scan referral of February 2022 demonstrates. Specific instances of falls had been recorded. In my view taking the clinical notes as a whole, and in the absence of any unrelated intervening shoulder or back issues, other than the historical matters dealt with above, it seems to me that the referrals for scans followed at some time after the recorded falls and these referrals or scans, considered in a common sense way, were related to the history of falls.
In relation to pathology, although a matter that was submitted by the respondent in the sense of a challenge to the veracity of the applicant’s reported symptoms, care should be taken when considered in the context of a claimed consequential condition or conditions. I have found against the respondent in respect of the submissions in respect of credit. It follows that this submission then must fail, particularly when considered that pathology or injury is not a necessary requirement for a finding of consequential condition, as discussed below.
The same pathology argument was raised in respect of the left elbow. This is also dealt with below. There was no other submission by the respondent in this regard.

In relation to weight gain, the respondent pointed to discrepancy between recorded weight prior to 2 September 2020 and the applicant’s evidence. On review of the clinical notes there were fluctuations in weight both before and after the subject injury. Dr Marshall indicated an acceptance of secondary weight gain in his report of 7 March 2023. In my view, this does not reflect on the applicant’s credit, and I do not accept the respondent’s submissions. In any event, weight gain was ultimately not a significant factor in the expert consideration of sleep disorder, and in respect of the orthopaedic assessments.
The reports of Dr Hale and Dr Harrington were relied upon by the respondent as to history only. This formed part of the respondent’s submission as to what was said to be a failure to disclose prior back pain. I do not accept this submission for reasons dealt with previously. Rather, the histories recorded by both these doctors in my view are reasonably consistent with the applicant’s complaints of instability in his left knee, back pain, right shoulder symptoms and disturbance of sleep. Indeed, Dr Harrington noted the report of elbow symptoms, although he did not identify which elbow. This in my view provides some support for the elbow symptoms noted by Dr Bodel.
I turn to the opinions of Dr Machart and Dr Bodel.
Dr Machart reasoned that he had not seen evidence of consequential or direct injury to areas other than the left knee. He was of the opinion that, while there was contemporaneous evidence of falls, there was no contemporaneous evidence of specific injury in any of the falls that caused a permanent disability. He concluded that he did not diagnose pathology in areas other than the left knee related to the incident in question and he had not seen contemporaneous evidence of such.
However, I have found otherwise in respect of the clinical notes and reports following the subject injury. Dr Machart did not address Dr Bodel’s reasoning in respect of altered gait. He considered injury and pathology in respect of the claimed consequential conditions. This is not the test. It is not necessary for the applicant to establish that he suffered injury, all that is required is that he established that the symptoms and restrictions in his claimed consequential conditions have resulted from his left knee injury.[2] It is not a question of pathology, it is a question of whether the symptoms and restrictions in the applicant’s back, right shoulder and left elbow resulted from the accepted left knee injury. I do not prefer the opinion of Dr Machart.
[2] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45], Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 [45] ff.
In my view the history recorded by Dr Bodel is in accordance with the clinical notes and reports discussed above. I have not accepted the respondent’s submissions as to credit or non-disclosure of history prior to 2 September 2020. It seems to me that Dr Bodel’s history as to altered gait and falls provides a sound foundation as to his opinion in respect of the claimed consequential back, right shoulder and left elbow conditions. He was of the opinion that the right shoulder and left elbow conditions resulted from the falls due to the left knee giving way. He was of the opinion that the back condition resulted from the abnormal gait pattern. I accept the opinion of Dr Bodel. He provided a well-reasoned diagnosis and opinion for all these conditions. Although it is not necessary to identify pathology or injury, Dr Bodel identified symptoms arising from rotator cuff injury of the right shoulder arising from the falls, mechanical back ache associated with aggravated degenerative disc disease arising from limping and altered gait, and lateral epicondylitis of the left elbow arising from the falls.
Applying a commonsense view of causation,[3] in my view the clinical notes and reports show that as a result of his left knee injury, the applicant sustained significant left knee pain and instability, resulting in an abnormal gait pattern, and also falls, which in turn resulted in consequential back, right shoulder and elbow conditions.
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Turning then to the expert medical opinion in respect of the sleep disorder, both Prof Grainge and Dr Freiberg accepted that there was sleep fragmentation secondary to pain. I have not accepted the respondent’s submissions as to credit and as to sleep issues prior to
2 September 2020. From the clinical notes and reports, in my view it was clear that the applicant sustained significant pain in his left knee and in his back resulting from the injury of 2 September 2020, which in turn resulted in sleep fragmentation.
Although Prof Grainge and Dr Freiberg applied certain tables in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (the Guides), in assessing permanent impairment, the insurer in its dispute notice took issue with the applicability of these tables. However, the respondent properly agreed that if the applicant were to be successful in respect of the claim for the consequential sleep disorder, then it would be a matter for a Medical Assessor to consider and assess permanent impairment having regard to the applicability or otherwise of any relevant provisions of the Guidelines and the Guides.
This in my view follows from the reasoning in the decision in Bucca v QBE Insurance (Australia) Ltd.[4] That is, the proper application of the Guidelines and the Guides is a matter for a Medical Assessor, not a Court or the Commission in the first instance.
[4] [2024] NSWSC 1099 [72 ff].
The available expert evidence before me, namely Dr Freiburg and Prof Grainge, agreed that there was a consequential sleep fragmentation condition secondary to pain resulting from injury on 2 September 2020. I have not accepted the respondent’s submissions as to the factual foundations of their reports. Accordingly, I find that the applicant sustained a sleep fragmentation condition secondary to pain as a result of the injury to the applicant’s left knee on 2 September 2020.
The applicant’s claim for lump sum compensation pursuant to s 66 is to be referred to a Medical Assessor for the assessment of the degree of permanent impairment in accordance with theses reasons.

[2025] NSWPIC 141

10 April 2025