Gentle v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gentle v State of New South Wales (NSW Police Force) [2025] NSWPIC 189
APPLICANT:	Michael Gentle
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Jane Peacock
DATE OF DECISION:	06 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation; injury dispute; disputed injury to bilateral knees; Held – evidence weighed in the balance and a finding in the applicant’s favour on the balance of probabilities; matter was remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of Injury: 2 August 2024 (deemed) (b) Body systems/parts: left lower extremity (knee, ankle and heels) and right lower extremity (knee and ankle and heels) (c) Method of assessment: whole person impairment 2. The documents to be forwarded to the Medical Assessor are those admitted by consent as follows: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and all documents attached. 3. The respondent pay the applicant’s costs as agreed or assessed. 4. The application by the applicant that the matter be declared complex is declined. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, the applicant, Mr Michael Gentle (the applicant) seeks lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury on 2 August 2024 (deemed).
The respondent is the State of New South Wales (NSW Police Force) (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited (the insurer).
It is not disputed that Mr Gentle suffered injury to his bilateral ankles. The respondent denied liability for the claim resulting from the alleged injury to the bilateral knees.

ISSUES FOR DETERMINATION

It is not disputed that the respondent suffered injury to his bilateral ankles and heels deemed to have occurred on in the course of or arising out of his employment as a police officer, such injury consisting in the form of a disease to which his employment was a substantial contributing factor.
It is disputed that the applicant also suffered a disease injury to his bilateral knees alleged deemed to have occurred on in the course of or arising out of his employment as a police officer, such injury consisting in the form of a disease to which his employment was a substantial contributing factor.
The dispute before me therefore is whether the applicant suffered an injury within the meaning of the 1987 Act to his bilateral knees.
The respondent seeks an award in their favour in respect of the allegation of injury to the bilateral knees.
In the event there is an award for the respondent in respect of the bilateral knees, it is agreed that the matter will be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the lower extremities (left and right ankles and heels) as a result of injury deemed to have occurred on 2 August 2024.
It is noted that the date of injury of 2 August 2024 is the deemed date agreed by the parties.
In the event there is a finding in favour of the applicant in respect of the bilateral knees, it is agreed that the remittal for referral to a Medical Assessor will include the lower extremities (bilateral knees).
The documents to be forwarded to the Medical Assessor are agreed to be the documents admitted into evidence in these proceedings.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) by consent and considered in making this determination:
For the applicant
(a) the Application and attached documents.
For the respondent
(a) Reply and all documents attached.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek to cross-examine the applicant.

FINDINGS AND REASONS

It is not disputed that the applicant suffered an injury at work to his bilateral ankles.
The applicant also alleges that he has also suffered a disease injury to his bilateral knees. The respondent disputes this injury.
The case must be determined on the balance of probabilities on the evidence and in accordance with the law.
Section 4 of the 1987 Act defines injury as follows:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act—
‘injury’ —
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9 of the 1987 Act provides as follows:
“Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 9A provides as follows:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
[Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.]
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In respect of entitlement to lump sum compensation as a result of an injury, s 66 of the 1987 Act provides as follows:
“Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
[Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.]”
The parties agree that as the applicant is an exempt worker he was unaffected by the amendments to the 1987 Act which introduced the requirement that employment be the main contributing factor to contracting the disease and the requirement remains that employment is a substantial contributing factor to contracting the disease.
Counsel for the applicant submitted that their primary case arises under 4(b)(i)(disease injury) or in alternative 4(b)(ii) (aggravation of disease).
Turning to an examination of the evidence in this case.
The applicant gave evidence in a statement dated 10 January 2025.
He gave evidence that he worked as a police officer from 18 December 2008 to 30 July 2021 (some 13 years). He was medical discharged 16 February 2023 as a result of suffering
post-traumatic stress disorder.
Counsel for the applicant submitted that in the course of his employment as a police officer the applicant wasn’t just behind a desk but was involved in the full range of general duties and was a member of the riot squad, all of which was very physical work.
The applicant gave evidence about the nature of his duties and the impact on his knees as follows:
“11. I sustained injury to my bilateral knees, bilateral ankles and bilateral feet arising from the hard, heavy and repetitive nature of my police duties from 18 December 2008 to 30 July 2021.
12. During the entirely of my police career, I engaged in rolling, wrestling , bending, twisting, rolling, wrestling, lifting, holding, falling , running foot pursuits, jumping and high impact events.
13. I was involved in constant and repetitive knocking of my knees onto the footpath or the road or a hard surface, falling or dropping over a fence or out of a tree onto uneven surfaces and twisting my knees (or striking my knees) upon landing.
14. The hard and heavy and unpredictable nature of arresting violent and non-compliant crooks involved falling into things, onto things, over things and through things and was forced into awkward and twisting positions, all of which have progressively caused injury to my bilateral knees, ankles and feet.
15. On numerous occasions I fell directly onto my kneecaps with great force, causing significant and ongoing pain.
16. I would often need to secure a “purchase” on the ground and therefore “ground” each of my knees (one at a time) into the roadway or footpath or hard ground when kneeling on one leg and suing the other knee to restrain a violent offender so they could be handcuffed. The process caused the same sort of pain as a direct blow to my kneecap when falling onto a hard surface.
17. I experienced regular ankle and feet pain and twisted ankles while running , jumping , chasing, falling, twisting, landing heavily on one or both feet when flipping over a fence or a wall etc and landing heavily.
18. Making landings (from a fence or a wall) more difficult was the fact that I was generally weighed down with another 9-10kg of appointment s bely making balancing difficult increasing the weight and force on my bilateral knees, ankles and feet.
19. On numerous occasions during an extended foot pursuit, I would roll an ankle badly enough to make a normal person stop and give up the chase but would just get up and continue the pursuit, aggravating the effects of the rolled ankle.
20. My police issue boots were ill fitting and caused pain in both of my feet, especially when running.
21. I attended training programs and Defensive Tactics training exercises which involved playing the role of both “attacker” and “victim” in exercises involving tackling, being tackled, dragging, being dragged, leg sweeping, being leg swept, head-locking, being head-locked and so on.
22. As a member of the OSG (which the public know as the Riot Squad), I was involved in training in heavy ballistic vets and helmets, usually carrying 20 kilograms of heavy shields, kit bags and other items, often in simulated riot stations. This caused pain in my bilateral kneed, ankles and feet.
23. I was also required to attend real life situations where the OSG was required which caused exacerbations to the pain in my bilateral knees, ankles and feet.
24. I first noticed symptoms in my bilateral knees in around 2016 and my bilateral ankles and feet in around 2019. These have worsened over time. I believe there was no specific event which led to my bilateral knee, ankle and feet symptoms, rather a plethora of incidents over almost 13 years in the course of carrying out my police duties.”

29. Counsel for the applicant pointed out that there was no evidence to traverse that of the applicant as to the nature of his duties and he was not cross examined.

30.The applicant goes onto give evidence about persistent and ongoing symptoms in his knees.

It is common ground that the applicant did not seek treatment for his knee pain until 2023. At that time he was referred for an MRI which was undertaken on 19 September 2023.
The applicant told both IMEs that there was a culture of non-reporting injury in the police force. Counsel for the applicant submitted that I could take judicial notice that such a culture existed. That is simply not something of which I can take can take judicial notice. The highest it could possibly be put is that the applicant perceived there to be such a culture. The respondent points out that the applicant has had other claims of injury which have been reported.
Counsel for the respondent submitted that there is no contemporaneous reporting of any injury to the knees, no clinical records evidencing any contemporaneous complaints about injury to the knees and no treatment sought until some two and a half years after leaving active employment. Counsel for the respondent submitted it is a case of “too little too late.” Counsel for the respondent submitted that the Commission could not be satisfied on the balance of probabilities that the applicant suffered injury to his knees.
The applicant saw Dr Porteous who was the IME qualified to provide an opinion behalf of the applicant.
Dr Porteous saw the applicant on 19 June 2024 and provided a report to his lawyers on
28 June 2024.
He took a history consistent with the applicant’s evidence of employment as a police officer from 2008 last working in active duties in July 2021 and giving a history of injury as follows:
“He notes that the injuries occurred from repetitive micro injuries and cumulative indivisible injuries to the joints involved from regular and unco-operative restraints, wrestling and grappling and holding and pushing and pulling and being twisted and dropped to the ground with abnormal force applied to the joints as well as regular running or walking over rough or uneven ground with regular falls , including chasing offenders or doing defensive tactics (DEFTAC) training. He said that he had to wear equipment which was often 9 kg or more, and added extra weight. He said during arrests he was taught to ground the knee into the ground and the other one on the person back, as he put the handcuffs on.
Mr Gentle said throughout his career v, there was regular rolling, wrestling , twisting falling, frequent lifting and carrying often in difficult or uneven circumstances including moving people and bodies. In DEFTAC training, he was talked, would tackle, was dragged, was leg swept, would head lock or be head locked when either the victim or the attacker. He was also in the operational support group or riot squad which involved wearing really heavy gear and lots of physical training with frequent very physical activities including in simulated riot situations which would result in pain.
With all of the above, he sustained significant physical injuries.
Bilateral knee injuries
Mr gentle said he first got bilateral knee injuries approximately eight years ago that occurred repeatedly with twisting and dropping onto the knee or falling over or landing on the ground on the knees or during arrest, forcing his knees into the ground to ground them and along with all the other activities would injure the knees regularly from that point on.
He said the culture was not to report it.
It got worse when he was landing, having to jump off a fence or a wall with his appointment belt that weighed around 9-10kg and with all of that he started to develop anterior knee pain.
It has got to the point now it is 5/10 to 8/10 and he has trouble kneeling and crouching with it.
MRIs done on 9 September 2023 showed bilateral patellar tendinosis, bilateral patellar chondral fissures and early degeneration, as well as un-detached left menial meniscal tear.
He has not had any specific investigations or seen a specialist about this. The knee pain is now constant and significantly restricting in both knees.”
Dr Porteous conducted a physical examination of the knees of which he recorded as follows:
“today in the knees he had 0* to 115* flexion bilaterally. This is identical to when I saw him last indicating consistency. When I saw him last he had bilateral femoral pain and crepitus. Today I could not test crepitus but he again had patellar compression pain (2% subtext Table 17-31). He also reported medial joint line tenderness on the left. There was no evidence of laxity today and there was not previously”.
Dr Porteous goes onto diagnose patellofemoral joint pain and to opine:
“The stated mechanism of injury was the substantial contributing factor to each diagnosed injuries”.
He goes onto assess as follows:
“The clinical findings in each knee result in a 2% whole person impairment noting there is direct contact to the knee, there is patellofemoral joint pain and there is crepitus of long standing and that meets the criteria for the subtext table 17-31.”
The applicant was assessed by Dr Bentivoglio, orthopaedic surgeon, who was the IME qualified to provide an opinion on behalf of the respondent.
Dr Bentivoglio saw the applicant on 4 October 2024 and provided a report dated
15 October 2024 to the respondent’s lawyers.
Dr Bentivoglio recorded a history consistent with the applicant’s evidence as follows:
“This gentleman advised me that he was in the police force for 15 years. During his time in deployment, he sustained injuries to his knees, ankles and left shoulder.
History of injury
Knees: about 8 years ago this gentleman started to experience symptoms present in both knees. There was no specific injury to his knees but he felt that his duties at work, which included jumping, wrestling and affecting arrests caused his knee symptoms. He had not had any problems with his knees previously. He did not lose any time off work and continued to do his work activities.
Treatment: he initially did not see his local doctor and it was only around September 2023 that he saw his local doctor. His local doctor arranged for an MRI scan taken of both knees. No treatment was instituted for him following the MRI scan.
Specialist treatment: he has not seen any specialist treatment. He is currently not having any active treatment for his knees. He did not lose any time off work for his knee complaints.”

He recorded the reported symptoms as follows:
“He has an equal amount of symptoms in both knees. He feels that he has regained the movement present in his knees, but not the strength. He experiences pain over the anterior aspects of his knees. His symptoms are made worse with weight bearing. At rest he is comfortable. He feels he has decreased strength in his knees. He noticed some crepitation present on moving his knees, while generally made his knees symptoms worsen. He does not notice any swelling present in his knees and his knees do not give way on him. He notices difficulty with stairs and has an equal amount of difficulty going up and down stairs. He is able to negotiate stairs with a normal cadence. Kneeling and squatting cause him pain so he avoids these activities. He does not feel as though there has been any improvement in his knee symptoms recently.”
Of the investigations, Dr Bentivoglio noted:
“I viewed results of an MRI scan taken of his left knee performed on 19 September 2023. It was reported as showing evidence of early chondromalcia patella together with some proximal patellar tendinosis. There was also evidence of non-displaced cleavage tear of his medial meniscus.
…
I have seen on this gentleman’s mobile phone reports of the MRI scan taken of his right knee. There was evidence of partial thickness chondral fissuring of the medial ridge of his patella together with insertional tendinosis of the anterior pole of his patella.”
Dr Bentivoglio conducted a physical examination of the applicant’s knees of which he recorded the following:
“he had normal alignment present in both knees. He had 5* valgus alignment present in both knees. There was no muscle wasting present in his thighs. He demonstrated range of movement present in both knees for 0* to 125* flexion. There were no crepitations emanating from his retro patellar region. there was no effusion present in his knees. Both knees were stable. There was no joint line tenderness present. His knees were stable.”
Under the heading “diagnosis and opinion”, Dr Bentivoglio opined as follows:
“This gentleman has some degree of ongoing complaints referable to the knees, ankles and shoulder. With his knees there was no specific injury to his knees. MRI scans taken of the knees 2 years after he ceased work did not show any significant abnormality present in either knee. I would consider the minimal abnormality seen on the MRI scans taken of his knees just represents natural aging changes.”
Dr Bentivoglio goes onto note:
“this gentleman advised he had no specific injuries to his ankles or knees but started to experience symptoms in those areas.”
He considers that there are “age related changes present on both knees”.
He opines on causation:
“I do not consider there us any causal connection between any incident at work and the minimal abnormality seen on his investigations, I consider all the abnormalities seen on his investigations of his knees are age related changes.”
The applicant gave evidence in his statement that given the history he gave to Dr Bentivoglio of the nature of his work duties and the repeated forceful impact on his knees in 13 years of active duty (not desk bound and including the riot squad) of all the tackling, wrestling, running on uneven terrain and jumping of fences and training techniques where they are taught to force their knee into the ground during arrest of uncooperative offenders, that in saying there was no specific injury to the knees, he felt Dr Bentivoglio didn’t really understand the history he was giving him. He also gave evidence that he is 49 years old and he had not problems with his knees prior to commencing work as a police officer and passed a rigorous physical assessment to qualify for the force. He says he has suffered no other injury outside of work to his knees. Counsel for the respondent submitted that the misunderstanding is on the applicant’s part because his case is that there was no specific injury. He submitted that the age of 49 is neither here nor there, not young and not old. Counsel for the respondent highlighted that there was no complaint about the knees to any clinician until some two and half years after leaving work.
Dr Bentivoglio goes onto opine that the condition in the knee has resolved. This is despite the recording of a history of persistent and ongoing symptoms in the knees, the findings on radiological investigations and noting that the applicant did not exaggerate.
I have to weigh all of the evidence in the balance and decide on the balance of probabilities whether the applicant has suffered a disease injury to his knees to which his employment has been a substantial contributing factor. Despite saying that the alternative case was a s4(b)(ii) case or aggravation of a disease, this was not the opinion of Dr Porteous that the injury consisted in the aggravation of an underlying disease rather that the work was a substantial contributing factor to the diseased condition of the knees.
When I weigh all of the evidence in the balance, I note that the applicant has given evidence of the active nature of his duties which involved repeated and forceful load on the knees over 13 years of duty from 2008 to 2021. He gave evidence of a development of symptoms in the knees in the course of performing his duties in about 2016 and these symptoms have persisted and worsened. I weigh in the balance that no reporting of injury was made or treatment sought prior to his leaving active duty in July 2021. It is common ground that the first complaint to a medical professional was in September 20023 when he was sent for radiological investigation in the form of MRIs. He has been seen by IMEs qualified on behalf of each party Dr Porteous and Dr Bentivoglio and their expert opinions are in contest. The applicant bears the onus of proof.
Dr Porteous takes a consistent history of the duties undertaken by the applicant over many years of active duty which involved forceful load on the knees and considers the findings on the radiology to be consistent with direct contact to the knees in the course of his duties as related by the applicant to him. I note that Dr Bentivoglio, despite taking a history from the applicant consistent with his evidence in these proceedings of repeated forceful load on both knees in active duty over 13 years, simply states that there was no specific injury to the knees and the changes shown on the radiology represents age related degeneration only. He had noted in the history that there was no contemporaneous reporting of injury or treatment sought but he really doesn’t rely greatly on that as a factor in his opinion. He considers the condition of the knees to have resolved despite taking a history from the applicant of persistent and ongoing pain and restriction in the knees. He considered the applicant to a person who related his symptoms without exaggeration. When all of the evidence is weighed in the balance Dr Bentivoglio has placed undue reliance on the absence of a specific injury to the knees and has not taken adequate account of the history of repeated forceful load on the knees causing the onset of symptoms. When I weigh all of the evidence in the balance, I prefer the opinion of Dr Porteous who has taken the same consistent history of the forceful load taken by the knees over the course of arresting and pursuing offenders in the 13 years of active duty together with training and taken it into adequate account. When weighing all of the evidence in the balance I prefer the opinion of the Dr Porteous to that of Dr Bentivoglio.
Accordingly when I weigh all of evidence in the balance I am satisfied, on the balance of probabilities, that the applicant suffered injury to his bilateral knees deemed to have occurred on, such injury consisting in the contraction of a disease to which his employment as a police officer was a substantial contributing factor.
I note the parties agreed that the deemed date of injury is 2 August 2024.
When I weigh all of the evidence in the balance, I am satisfied, on the balance of probabilities, that the applicant suffered injury to his bilateral knees deemed to have occurred on 2 August 2024. As this is a claim for lump sum compensation only, the assessment of whether there is a permanent impairment as a result of that injury is a matter for a Medical Assessor and as such the remittal for referral to a Medical Assessor will include the lower extremities (knees) in addition to the undisputed bilateral ankles and heels.
Accordingly, the orders will be as follows:
(a) The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows:
i.Date of Injury: 2 August 2024 (deemed)
(ii) Body systems/parts: left lower extremity (knees, ankle, heels); right lower extremity (knees, ankle, heels)
ii.Method of assessment: whole person impairment
b. The documents to be forwarded to the Medical Assessor are those admitted by consent as follows:
i.Application to Resolve a Dispute and attached documents, and
ii.Reply and all documents attached.
In relation to the question of costs, counsel for the applicant made an application that the matter be declared complex and the costs be increased by 15%. The submissions were essentially that there were issues of fact and law to deal with. There is nothing in my view that makes this a complex matter. Issues of fact and law have to be dealt with in the ordinary case and nothing in this case suggests extra work was needed to be undertaken to deal with complex issues. The application to declare the matter complex is declined. An order will be made that the respondent pay the applicant’s costs as agreed or assessed.

[2025] NSWPIC 189

06 May 2025