Gili v Qantas Airways Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gili v Qantas Airways Ltd [2024] NSWPIC 485
APPLICANT:	Marcelle Gili
RESPONDENT:	Qantas Airways Limited
MEMBER:	Parnel McAdam
DATE OF DECISION:	2 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant a flight attendant; suffered multiple falls in course of employment with respondent; whether she had suffered a consequential condition in lumbar spine and cervical spine as a result of accepted knee injuries; claim made for assessment of total whole person impairment arising out of different injuries occurring on different dates; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes, Merchant v Shoalhaven City Council and Ozcan v Macarthur Disability Services Ltd considered; Held – applicant suffered a consequential injury to her lumbar spine; applicant did not suffer an injury or consequential condition in cervical spine; applicant could not combine injuries suffered to different knees on different dates for the purpose of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition in her lumbar spine as a result of her right knee injury on 15 March 2017. 2. Award for the respondent for cervical spine injury on 15 March 2017. 3. Award for the respondent for consequential condition in the cervical spine as a result of any injury suffered on 14 April 2014, 15 March 2017, 2 December 2019. 4. 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 Act 1998 for assessment as follows: (a) Date of injury 1: 14 April 2014. (b) Body systems/parts: left lower extremity. (c) Method of assessment: whole person impairment. (d) Date of injury 2: 15 March 2017 and 2 December 2019. (e) Body systems/parts: right lower extremity, lumbar spine. (f) Method of assessment: whole person impairment. 5. The above dates of injury are to be assessed separately. 6. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and (c) an Application to Admit Late Documents dated 24 July 2024.

STATEMENT OF REASONS

BACKGROUND

Ms Gilli (the applicant) has worked in the airline industry, as cabin crew, for an extended period. She originally worked for the now defunct Ansett. She has been employed by Qantas Airways Limited (the respondent) since around 2007.
During the course of employment, Ms Gilli injured herself on a number of separate occasions. There is no dispute that the injuries claimed in the Application to Resolve a Dispute (Application) occurred. There is some dispute about the consequences of those injuries, in terms of consequential conditions and body parts that Ms Gilli may have injured.
The main area of dispute is the framing of the claim for lump sum compensation, which is made for 18% whole person impairment. This is said to arise out of three dates of injury pleaded. The applicant claims that the three injuries, to separate body parts, can be referred to a Medical Assessor to assess a combined whole person impairment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a consequential condition in her back as a result of one or both accepted knee injuries;
(b) whether the applicant injured her neck, on in the alternative suffered a consequential condition in her neck as a result of one or both accepted knee injuries, and
(c) whether the applicant can have both knee injuries, and any consequential conditions that result, assessed together for the purposes of s 66 of the Workers Compensation Act 1987 (the 1987 Act) and s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

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) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    the Reply and attached documents, and
(c)    an Application to Admit Late Documents, filed by the applicant, attaching an updated statement.
I will discuss some of the relevant evidence below. There are a number of factual findings that are required in determining this dispute, although at its core is the substantive issue of what injuries, and how they are to be assessed, are to be referred to a Medical Assessor.

The applicant’s statement

The applicant’s statement begins by setting out her history of employment. She explains the injuries she suffered in the course of employment with the respondent, occurring on 22 April 2014, 15 March 2017, and 2 December 2019, as well as the onset of neck pain in early 2020. A description of the consequence of those injuries, including to other body parts, is also provided.

Report of Dr Harrison

The applicant relies on a report of Dr Harrison dated 4 December 2018. This obviously predates the last of the pleaded injuries. Dr Harrison takes a consistent history of the two knee injuries in 2014 and 2017. After the 2014 injury, Ms Gilli did not return to full duties until May 2015. He records that following the 2017, she was limping and felt some mechanical back pain around the lower part of the lumbar spine on the right side.
He describes her injuries as “successful falls and impact injuries to her left and right knees… and she developed mechanical back pain very likely consequential to a tendency to limp and favour her knees at times that followed those injuries”. He assesses 12% whole person impairment “as a consequence of the injuries she sustained at work on 15 March 2017”. It is noted this assessment includes the left knee.

Dr Endrey-Walder

Dr Endrey-Walder is a genal and trauma surgeon who provides a report for the applicant. He describes the injury that occurred on 22 April 2014, and the treatment that resulted thereafter, including with Dr Rimmer. It is recorded that “It was Ms Gilli’s recollection that she had returned to work in January or February 2015”. An incident that occurred on 1 June 2016, being a fall on the footpath in Sri Lanka, is recorded.
Dr Endrey-Walder goes on to record the 15 March 2017 incident involving the right knee, where Ms Gilli was chasing a passenger who left an iPad on the plane. The third incident that occurred on 2 December 2019 is recorded, where Ms Gilli had a fall on a plane on her way to Perth. On 30 November 2020, Ms Gilli complained to Dr Girgis of a “stiff neck”. He records her present symptoms (at the time of the report).
Under the heading “opinion”, it is recorded: “In the course of her daily work for Qantas Ms Gilli had suffered a great many injuries relating to her knee joints, mainly on account of various falls”. Dr Endrey-Walder provides a vague causation opinion:
“I would consider it perfectly reasonable to suspect that the multiple falls had impacted no only on her lower back but the cervical area as well”.
The diagnosis is “patella-femoral chondropathy at both knee joints, some impairment assessable at the left knee on account of the partial medial meniscectomy”. In respect of the low back and neck, it is recorded:
“I do believe it is more than reasonable to suggest that her lower back pain, that has been present since her fall in December 2015 and the stiffness and restricted range of movement at the right neck would be causally related to the multiple falls”.
Dr Endrey-Walder goes on to assess whole person impairment for each of the body parts he determined were causally related to employment. He provides: “…on the basis of the Combined Values chart she has 18% WPI.” That assessment is not attributable to a specific date of injury.

Reports of Dr Rimmer

Dr Rimmer is an orthopaedic surgeon who treated the applicant for very many years in relation to the injuries she suffered with the respondent. He provides records of attendances, as well as some certificates noting the restrictions Ms Gilli should be place under during duties.
Given the volume of material produced by Dr Rimmer, including various certificates of attendance, I do not intend to summarise that material here. I will refer to the relevant reports in my discussion below.

Dr Andrew Keller

Dr Keller is an occupational physician who provides a report dated 14 June 2018. The presenting complaint at the time of assessment was the right knee injury that occurred on 15 March 2017, and the consequential low back pain as a result of that incident. The report considers Ms Gilli’s functional capacity to return to work with restrictions.

Dr Anthony Leong

Dr Leong provides a report dated 14 May 2020. At that time Ms Gilli presented with mostly right sided knee pain, on the background of a work related injury in March 2017. The symptoms were described as “secondary to her post traumatic arthritis of the knees and lumbar spine”.

Clinical notes of Dr Girgis

There are a large number of clinical notes attached to the Application. The parties took me to some of the relevant notes during the course of submissions. I will consider those notes in my reasons below.

Report of Dr Shatwell

Dr Shatwell provides a report for the respondent dated 27 September 2023. He takes a history of the multiple injurious incidents as reported in the other medical evidence and as claimed by the applicant. He also records an incident on 2 December 2015, which caused a further left knee injury, and an incident in Sri Lanka on 1 June 2016. The left knee (and potentially back) incident that occurred on 2 December 2015 was the subject of a claim on the respondent, but does not form part of the present proceedings. The relevant claim for is attached to the Reply.
Dr Shatwell disagrees with Dr Endrey-Walder’s diagnosis of patellofemoral chondropathy at both knee joints, opining that “neither of these conditions was caused by injury. The degenerative changes seen at arthroscopy in the left knee in August 2014 were not caused by the fall of April 2014.”
Dr Shatwell rejects a connection between abnormal ambulation and injury to the cervical or thoracic spine:
“I do not consider that limping because of ‘abnormal ambulation’ over the years has impacted on Ms Gili’s cervical or thoracic spine. People who limp are usually limited in their activities, and this is protective as they are less likely to expose themselves to excessive physical activity which could theoretically cause degenerative joint disease.”
He also rejects any connection between limping and the degenerative changes seen in the lumbar spine on investigations:
“The short period of time when Ms Gili was limping after her arthroscopic surgeries would not cause the degenerative changes seen in the lumbar spine on the CT I have described. These are caused by the natural process of aging.
I do not consider that falling over causes cervical spondylosis which is the most likely cause of Ms Gili’s intermittent neck pain.”
Dr Shatwell opines that Ms Gilli did not suffer an injury to the back or neck as a consequence of the falls sustained. He also does not consider degenerative changes in her spine as being related to an abnormal gait. In relation to the knees, he opines: “In my opinion, the temporary exacerbation of symptoms due to the falls would have been at an end by two or three weeks from the time of the falls described”.

SUBMISSIONS

The parties made oral submissions during the hearing which were recorded. Mr Stanton of counsel appeared for the applicant, whilst Mr Doak of counsel appeared for the respondent. As the submissions were recorded, I do not intend to repeat them in full but provide a summary below.

Applicant’s submissions

The applicant commenced submissions by noting that there was one s 66 claim for a single lump sum, and the relevant overall degree of impairment results from three traumatic events, that occurred in 2014, 2017 and 2019. There is no dispute that these events occurred, but what is in issue are the consequences. The applicant referred generally to the history recorded by the medical assessors and her statement.
In relation to the episode in 2014, this affected the left knee which resulted in arthroscopic surgery some months after. Whilst the applicant returned to work, her knee did not become symptom free. In March 2017 the applicant was trying to assist a passenger when she fell. The primary complaint at this point was the right knee, but her gait was affected and her back had pain and restrictions. The applicant submits that the problem in the back was connected to both knees, although at this stage the right knee was more significant. These gait issues persisted for some time.
Whilst her right leg was bad at this point she was favouring it, leading to her left knee again becoming problematic. It was submitted that the left knee symptoms and pathology aren’t simply resulting from the episode in 2014, they are also related to the incident on 15 March 2017 – they essentially become intertwined.
The applicant referred to the report of Dr Harrison, supporting a connect ion between the lower back pain experienced as a result of a tendency to limp and favour her knees. The lower back problems result from both of these traumas. It was submitted that there is a lot of corroborative evidence of low back pain emerging as a result of both knee injuries.
In relation to the question of pathology, the applicant submits that the Commission should be concerned with the pathology in the context of the present claim for lump sum compensation, not particularly the pathology in MRI scans that were taken at the time of the incidents. Historically there were a number of different potential pathologies discussed in the scans, but what is important is the pathology now, and you get the best guidance as to the present pathology from Dr Endrey-Walder. He found patella-femoral chondropathy, which is essentially arthritis in both knees.
It was submitted that this diagnosis is the same pathology in both knees, and that fact that it is present in both knees doesn’t mean that it can’t be the same pathology for the purpose of considering whether the knees can be assessed together. It was submitted that it would be an overly fine distinction to say that you can’t have the same pathologies in different body parts.
If the applicant were wrong on that, it is important to consider Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes). The applicant discussed the factual background to the case and what was considered there, particular with reference to the Interpretation Act 1987, submitting that here there is a claim for one whole person impairment that results from different injuries.
The applicant then discussed Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant). The applicant submits that in that decision, Mr Merchant had multiple unrelated injuries, and what we have in this case are multiple injuries that are related in various ways.
The applicant then provided submissions in relation to the neck, submitting that it was understandable how the various traumas could affect the neck. It is of some relevance that in the March 2017 incident the applicant struck her face. The earliest reference to the neck being symptomatic is 30 November 2020, but it was perfectly conceivable that the incident in March 2017 could have produced trauma in her knees. The applicant had very significant symptoms in her knees – it the treating doctors were turning their minds to those problems. If I were against the applicant with the causal connection on the neck, I wouldn’t have any reservation concluding that the knee symptoms were causally related to each other and the lower back results from both knee injuries.
In relation to the incident that occurred in 2019, the evidence would be more persuasive that the incidents in 2014 and 2017 have been the cause of the problems with pathology.
The applicant submits that I should be satisfied that Ms Gilli has permanent impairment as a result of the injuries in 2014 and 2017, and refer all parts of the anatomy as claimed for assessment. The referral should be worded in such a way as to not raise the question of apportionment based on the way the claim is advanced.
In relation to the December 2015 incident including record of back pain, it was submitted that I would get better guidance from the more recent records, which are all couched in terms of the back pain being connected to the knee injuries.
The applicant also referred to the opinion of Dr Shatwell, submitting that it does not properly accommodate the symptoms and ongoing problems experienced by the applicant many months after the surgeries occurred. The opinion sits poorly with the evidence.

Respondent’s submissions

The respondent commenced by summarising the applicant’s position. It was submitted that Barnes and Merchant don’t assist the applicant. It was noted that absent from the allegations are the incidents in 2016 to the left knee and in 2015 as a genesis of lower back pain. The respondent submitted that the applicant had made inconsistent submissions, suggestion that I play down the symptoms recorded in the clinical notes, but amplify transient records of complaints to the lumbar spine.
The respondent submits that there is no opinion to support the submission that the two knee injuries have affected each by way of antalgic gait. There are three separate dates of injury.
In respect of the neck, the respondent submits that the applicant ceased work in April 2020, and the first record of complaint is not until November 2020. The doctor simply notes symptoms, but there is no reference to a work injury or a connection with work. It was submitted that the opinion of Dr Endrey-Waller was a bare ipse dixit, with reference to Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and McColl JA’s judgement in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 and the Presidential decision of Brannigan v Elbon Consulting Services Pty Ltd [2021] NSWWCCPD 27 (a decision which is restricted). It was submitted that there is no casual connection between employment and the neck injury, and I would not be satisfied that the applicant had suffered an injury or consequential condition in the neck.
In respect of the knees, the respondent submits there is no support evidence to suggest that the left knee symptoms continued and had an effect on the right knee. Following the right knee injury, the applicant’s treaters would have recorded complaint in the left knee if recording a complaint in the back – there is no rational explanation as to why none is not recorded. This would lead to the conclusion that the applicant has not made out her case that there has been a consequential loss in the contralateral knees.
In respect of the question of how the injuries are to be assessed, the respondent submits that to accept the submissions of the applicant relying on Barnes would introduce a concept foreign to the legislation based on a twisted reading of s 66 of the 1987 Act. The respondent submits that s 66 is qualified by s 322 of the 1998 Act. The difficult for the applicant in relation to Barnes is that it is factually distinguishable – in Barnes, the applicant had three injuries to his lumbar spine. The respondent submits that the incidents can’t be the same pathology because they are separate body parts, and the pathology in the left knee is different to that in the right, with reference to the impairment being partially due to the meniscectomy.

The respondent submits that the answer to the applicant’s case is found at [130] of Merchant, and that s 322 of the 1998 Act should be employed in this case. At its highest, the applicant’s case is a left knee injury in 2014, a right knee injury in 2017 and perhaps a consequential condition in her lumbar spine.
There is no factual basis to draw an inference that the applicant striking the ground could have injured her neck. Whilst Dr Girgis is a busy practitioner, he was careful about recording low back complaints in 2017, there is an absence of any evidence recording complaints to the neck.

Applicant in response

In terms of the evidence of favouring, it is not just the medical evidence, it is contained in the applicant’s statement, which is consistent with the causal assessment of the chain of events. I would be satisfied that there was quite marked disability with the right knee, causing the applicant to put more weight on the left knee. The applicant submits that there is nothing novel or new about the case. Barnes considers at [55], and it didn’t make a difference in that case, and it shouldn’t make a difference here. Injury can mean injuries in some circumstances.
The applicant submits that I should not be addressing my mind to the pathology at the time of incidents, as that would fall into error. I should be looking at the wording of s 66, which is injury/ies that result in a degree of permanent impairment. What the whole person impairment relates to is now quite different pathology, being post-traumatic arthritis, which could not have existed at the time of the incidents. This demonstrates quite strongly why you look at the pathology now rather than the discrete pathology that existed in 2014 and 2017. The applicant submits that the construction urged is not distorting the legislation, but rather asking the Commission to apply it.

FINDINGS AND REASONS

In order to determine the question as to whether the injuries claimed by the applicant can be assessed together, it must first be determined what injuries and/or consequential conditions Ms Gilli has suffered.
It is accepted that Ms Gilli suffered left and right knee injuries occurring on 22 April 2014 and 15 March 2017 respectively. The applicant also claims she suffered consequential conditions in the contralateral limbs as a result of those injuries, as well as a consequential condition in her lumbar spine and cervical spine causally related to altered gait as a result of the injury on 15 March 2017. In the alternative, the applicant suggests that she suffered a frank injury to her cervical spine as a result of the fall on 15 March 2017. In summary, I am required to determine:
(a)    whether the applicant suffered a consequential condition in her lumbar spine as a result of injury on 15 March 2017;
(b)    whether the applicant suffered a consequential condition in her cervical spine as a result on injury on 15 March 2017;
(c)    whether the applicant suffered a personal injury in her cervical spine on 15 March 2017;
(d)    whether the injury on 22 April 2014 resulted in a consequential condition in her right knee, and
(e)    whether the injury on 15 March 2017 resulted in a consequential condition in her left knee.
Following consideration of these issues, I will determine the appropriate terms of the referral to a medical assessor for an assessment of permanent impairment.

Lumbar spine

The applicant claims that as a result of the injury on 15 March 2017, she suffered a consequential condition in her lumbar spine due to her altered gait.
The applicant relies on the report of Dr Harrison. He discusses the 15 March 2017 incident, and records:
“After about a week she did go back to work, still limping. She had some physiotherapy while at work and she was more conscious then of mechanical back pain felt around the lower part of her lumbar spine on the right side, adding to the discomfort when she limped, along with the swelling in her right knee that persisted”.
Dr Harrison’s opinion in relation to the lumbar spine is that “she developed mechanical back pain very likely consequential to a tendency to limp and favour her knees at times that followed those injuries”. According to Dr Harrison Ms Gilli “seemingly exacerbated pre-existing degenerative changes in the lower part of her back that continue to disturb and trouble her with symptoms of pain emanating from that area as well”.
The applicant also relies on the report of Dr Endrey-Walder. He records that “in early 2017 she complained of ongoing back pain since her latest fall, which led to an X-ray of the lumbar spine (5.9.2017)”. He also goes on to record an injury which is not claimed and not part of the present dispute:
“In December 2015 she again suffered injury to her left knee when she tripped on the plane, this time the fall accompanied by lower back pain which has remained a feature of her condition over the years.”
He opines that “I would consider it perfectly reasonable to suspect that the multiple falls had impacted not only on her low back but the cervical area as well”. I would observe that one of the issues with the expression of this opinion is the lack of specificity recorded. There are a large number of falls recorded, which is recognised by Dr Endrey-Walder. The presentation of symptoms arising from those falls varies. The doctor “suspects” that the multiple falls impacted on her low back and cervical area. He goes on to opine:
“I do believe it is more than reasonable to suggest that her lower back pain, that has been present since her fall in December 2015 and the stiffness and restricted range of movement at the right neck would be causally related to the multiple falls”.
Again there is an issue with this opinion in that it is not consistent with the applicant’s overall case that the cause of her lower back symptoms is an altered gait as a result of her knee injury that occurred on 15 March 2017. However, the doctor goes on to provide:
“It is my understanding from your introductory letter that she has been advised that her abnormal ambulation over the years has impacted on her cervical and thoracic spine. I believe this is true as far as the cervical and lumbo-sacral spine is concerned”.
The respondent relies on the opinion of Dr Shatwell. In general I find there are some issues with this opinion in relation to the knee injuries. He dismisses those injuries suffered by Ms Gilli suggesting that they would have resolved without any permanent impairment, in two to three weeks after the incidents described. This ignores the actual history of the incidents that show ongoing complaints and surgery.
Dr Shatwell also records the incident that occurred on 2 December 2015, which is not part of the present dispute:
“On 2 December 2015, Ms Gili tripped over a passenger’s leg in the aisle on a flight and fell forwards injuring her left knee again. She also had some back pain when she saw her doctor the following day. She was prescribed Voltaren. She was on light duties for a period and returned to her full duties by approximately 4 March 2016 according to her GPs notes.”
In relation to the lumbar spine, Dr Shatwell opines:
“The short period of time when Ms Gili was limping after her arthroscopic surgeries would not cause the degenerative changes seen in the lumbar spine on the CT I have described. These are caused by the natural process of aging.”
This is a more reasoned consideration of the relevant issue than the doctor’s opinion in relation to the knees.
The applicant’s case in relation to the lumbar spine finds support in the clinical evidence attached. Dr Rimmer, in a report dated 18 July 2017 notes that Ms Gilli’s gait is antalgic.
In a letter dated 23 May 2018 from David Foggo, a Health & Injury coordinator from the respondent, Ms Gilli’s ongoing back pain since her 2017 injury is recorded: “Despite the back pain being her main concern at present, Marcelle still walks with a noticeable limp and reports ongoing knee pain”. Ms Gilli was subsequently referred to Dr Keller by Mr Foggo, for a “fitness for duty assessment”. In a report dated 14 June 2018, it is recorded “Ms Gilli reports a constant low back pain”.
Dr Phonesouk, providing an injury management consultant report dated 18 December 2021, records that at the time of the fall (being the fall that occurred on 15 March 2017) “she developed low back and cervical spine pain that did not abate”
Ms Gilli was referred for physiotherapy following the fall on 15 March 2017. Nicholas French, physiotherapist, provides a report dated 15 June 2017. He records “I have seen Ms Gilli on 5 occasions over the past 3 weeks to assess and assist in management of the right knee injury that she reportedly sustained at work in a fall around the 15/03/2017.” This is useful evidence as it is contemporaneous to injury. He records “On assessment Ms Gilli walked with an antalgic gait, favouring her left knee”. There is no discussion of back pain or symptoms.
In a report from Garry Morgan, also a physiotherapist, dated 10 October 2017 it is recorded that Ms Gilli was referred “for physiotherapy on her right LBP and right knee following surgery related to a fall she had at work on the 15/03/2017”. He goes on to record that “Her gait was very stilted in PWB on a crutch and this was aggravating her back pain which she reports as 8/10”.
The above report is then followed by a clinical note in the records of Dr Khayrat Girgis, the applicant’s treating general practitioner, on 23 October 2017, which records:
“still on crutches

says can drive yet

HAS BACK PAIN AS CONSEQUENCE OF THE KNEE INJURY”
There are earlier records of back pain, including on 6 September 2017 where Dr Girgis records “Right Back pain ? sciatica”. It is also noted that limping in one form or another is recorded in the clinical notes from the first attendance following the right knee injury, on 16 March 2017, and again on 7 April 2017, 28 April 2017, 5 May 2017, 2 June 2017, 17 July 2017, and 12 October 2017.
Based on the above there is a consistent thread of the applicant, following her right knee injury on 15 March 2017, walking with a limp. The first record of back pain is 10 October 2017, some seven months after injury, in a physiotherapist’s report. The report concludes that her stilted gait was “aggravating her back pain”.
The only complicating factor in this case is the unpleaded injury that occurred on 2 December 2015, which is referred to in the reports of Drs Endrey-Walder and Shatwell and appears in the clinical records. On 3 December 2015, Dr Girgis records:
“tripped in aeroplane yesterday

LT knee pain

Back pain”
Examination included limited flexion. Records of back pain continue on 9 January 2016 and 22 January 2016. By 29 January 2016 it is recorded “back is better”, although on 25 February 2016 there appears to have been a minor aggravation with “back pain yesterday” recorded. At that time the applicant was back to full duties. By 4 Mach 2016 Dr Girgis records:
“feels better

happy to do full duties”
It is not clear why the injury that occurred on 2 December 2015, which is referred to in the independent medical expert reports and in the clinical notes, does not form part of this claim. However, I am required to deal with the case as presented by the applicant. Based on my review of the clinical records, I am satisfied that any back symptoms suffered following the fall on 2 December 2015 resolved by 4 March 2016, one clear year prior to the right knee injury suffered.
Having considered the above material, I am satisfied that the applicant suffered a consequential condition in her lumbar spine as a result of her accepted right knee injury that occurred on 15 March 2017.
The applicant contended that the consequential back condition was as a result of both knee injuries. This submission was advanced in support of an argument about the mechanism of the referral, that all injuries should be referred together as one whole person impairment. I will deal with that submission below, but as I am considering the lower back issue now, it is appropriate to consider whether the consequential condition that I have accepted arose as a result of the injury on 15 March 2017, and have rejected as connected to the 2 December 2015 injury that has not been pleaded, was also as a result of the accepted left knee injury on 22 April 2014.
The treating records from that injury are more sparse. There are a series of reports from Dr Rimmer that deal only with capacity/suitable duties, but do not comment on what body parts are affected or how the incapacity is connected to employment. There is an undated physiotherapy report from Jennifer Dodge, addressed to Dr Rimmer, that refers to the left knee fall on 22 April 2014. That report refers to an antalgic gait. There is no reference to back symptoms. A suitable duties plan dated 16 February 2015 describes a left knee injury, again without reference to back symptoms.
Dr Girgis’ clinical notes following the 22 April 2014 left knee injury make no reference to back symptoms or pain. There are intermittent references to a limp or limping (for example on 11 September 2014, 13 September 2014, 19 September 2014) until the applicant was returned to full duties. A record on 24 August 2015 appears to record the resolution of the claim (if not the injury), providing:
“conference meeting

all well

happy to close the case”
However a record on 26 October 2015 records left knee pain with limp and right hip pain.
Having closely examined the contemporaneous clinical records following the left knee injury on 22 April 2014, I am not satisfied that Ms Gilli suffered a consequential condition in her lower back as a result of that injury. The first reference to lower back pain followed the 2 December 2015 injury. Ms Gilli herself, in her statement, makes no reference to back pain following the left knee injury. I accept that the applicant does not require to identify pathology (Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169]) but there must be a “condition that results from an employment injury”. The applicant has failed to prove that such a condition occurred. I acknowledge that I have accepted that an antalgic gait has caused the condition in the lumbar spine following the 15 March 2017 incident, and there is some evidence of an antalgic gait following the injury on 22 April 2014. However, evidence of an antalgic gait is not a condition in the applicant’s lumbar spine. It can lead to a condition if the medical evidence establishes that that is the case. Here, that medical evidence is absent.
The left knee injury that occurred on 22 April 2014 has not materially contributed to the lumbar spine condition.

The cervical spine

In the Application, the cervical spine is described in the same way as the lumbar spine, that is “causally related to altered gait caused by injury to her right lower extremity”. In the course of submissions provided during the hearing of the matter, counsel made a suggestion that the incident on 15 March 2017 could have caused trauma in the applicant’s neck – that is, a personal injury rather than connected to an altered gait.
The alternative case presented by the applicant, of a personal injury suffered due to the applicant striking her face in the fall that occurred on 15 March 2017, does not find support in the contemporaneous medical evidence. The earliest reference to any problem in the neck is recorded on 30 November 2020. The record provides “STIFF NECK TENDER”. A CT was requested, but there is no reference to workers compensation (in comparison with other clinical records which record reason for contact as “WorkCover”.
Likewise Ms Gilli’s statement provides:
“I first developed pain in my neck in or around early 2020. My physiotherapist has informed me that this is arising due to the injury to my right knee and my altered gait as I favour that knee”.
Unsurprisingly (given that the report was prepared prior to the apparent onset of symptoms) Dr Harrison makes no reference to any neck issues.
Dr Endrey-Walder, in his history, refers to the first complaint of “stiff neck” set out in the clinical note above. In relation to the neck, he opines that “the stiffness and restricted range of movement at the right neck would be causally related to the multiple falls”. He also agrees that that the abnormal ambulation over the years has impacted on her cervical spine.
One of the problems that I have with this conclusion, particularly in relation to the conclusion that the restricted range of movement is related to the multiple falls, is that it is a bare ipse dixit (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), from [82]). There is no record of any neck complaint contemporaneous with the injuries to the left and right knees. I accept that there is a record of “fall on her face and rt leg at work” on 16 March 2017, but it does not automatically follow that hitting the face would result in a neck injury. I appreciate that Dr Girgis is a busy practitioner and the records provided must be considered in the context of treating the worker (Nominal Defendant v Clancy [2007] NSWCA 349, Davis v Council of the City of Wagga Wagga [2004] NSWCA 34). It is clear that the main issue was the right knee. However, Dr Girgis’ notes are otherwise comprehensive and relevantly record complaints as they arise. I have relied on those notes in making a finding in relation to the lumbar spine. As the respondent submits, Dr Girgis was careful about recording low back complaints in 2017. It would be difficult to accept that the doctor was not careful about recording neck complaints. Whilst Dr Phonesouk, in an injury management consultation report, records “cervical spine pain that did not abate” since the time of the fall on 15 March 2017, that history is not supported in any other records, including the statement of Ms Gilli.
Accordingly, I am not satisfied that the applicant injured her neck in the fall on 15 March 2017.
The applicant’s main case as set out in the Application is that the neck has been aggravated by an altered gait. Dr Endrey-Walder agrees with this conclusion, which, based on Ms Gilli’s statement, was apparently postulated by the applicant’s physiotherapist. There is no medical evidence to support this contention in terms of a report provided by the physiotherapist.
Dr Shatwell repeats the history of a fall to the face on 15 March 2017, recording that “she slipped on the floor tiles, falling forwards injuring her right knee and bruising her face”. In respect of Dr Endrey-Walder’s conclusion that abnormal ambulation has impacted on Ms Gilli’s cervical spine, Dr Shatwell disagrees, providing:
“I do not consider that limping because of ‘abnormal ambulation’ over the years has impacted on Ms Gili’s cervical or thoracic spine. People who limp are usually limited in their activities, and this is protective as they are less likely to expose themselves to excessive physical activity which could theoretically cause degenerative joint disease.” (emphasis in original)
He provides an alternative diagnosis of cervical spondylosis: “I do not consider that falling over causes cervical spondylosis which is the most likely cause of Ms Gili’s intermittent neck pain.” He goes on to state: “I do not consider that the back and neck pain Ms Gili complains of is consequential upon any gait derangement caused by her constitutional degenerative knee disease.”
Whilst I have indicated the issues I have with Dr Shatwell’s conclusion regarding the likely trajectory of the applicant’s knee injuries, I find his conclusion in respect of the neck more persuasive.
As the respondent points out, the applicant ceased work on 18 April 2020 due to a stand down as a result of COVID-19. She did not return to work following that stand down and was made redundant on 17 January 2021. The first record of neck complaint is 30 November 2020 – around eight months after Ms Gilli ceased work. Whilst this is not necessarily fatal to the applicant’s case, this has not been explained by any medical expert. The applicant has the onus to prove her case which includes how the claimed condition is related to one or more of the accepted injuries (in this case, as a result of the accepted knee injury on 15 March 2017). I accept that there were continuing complaints in relation to the right knee in the period leading up to the first record of neck pain.

What is not clear, from the evidence including the expert opinion relied upon by the applicant, is how an abnormal gait can cause neck problems. Dr Endrey-Walder notes that Ms Gilli had been advised that her abnormal ambulation had impacted on her cervical and thoracic spine. Dr Endrey-Walder opines that “I believe this is true as far as the cervical and lumbo-sacral spine is concerned”. This is an opinion without an explanation. In the absence of consideration of the onset of cervical spine symptoms, which arose spontaneously after the applicant ceased work, I am unable to accept that opinion. Dr Endrey-Walder merely gives support to something Ms Gilli was apparently told, without explaining why. It is also noted that this opinion is clouded by Dr Endrey-Walder’s earlier conclusion that the multiple falls had impacted on her cervical spine area.
The Commission is entitled to rely upon commonsense for evaluating decisions of causation (Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner) at [43]). There are circumstances where the connection is obvious and apparent, such as the overuse example given in Turner. There is no such explanation given in the present case to link an altered gait to neck symptoms. Ms Gilli’s statement does not explain that she was using her neck in a way that would cause the consequential condition. The medical evidence that I have referred to above is likewise absent in explanation to connect the knee injuries (particularly in the right knee) to the neck pain that is first evident on 30 November 2020. The highest the evidence goes is a clinical note recording neck stiffness and a physiotherapist telling Ms Gilli that her neck symptoms were caused by her altered gait, without explanation.
The applicant is required to prove her case on the balance of probabilities. I am not satisfied that she has done so. I am not satisfied that she has suffered a neck injury as a result of the fall on 15 March 2017, which resulted in facial bruising, or as a consequence of an altered gait experienced from her right knee.

Right knee injury on 18 December 2019

The right knee injury on 18 December 2019, which is part of the pleadings and referred to in the clinical notes and the report of Dr Endrey-Walder, is the same pathology as suffered in the fall on 15 March 2017 and can be assessed in conjunction with that injury.

The terms of the referral

I have determined the injuries in dispute above. The remaining issue is how the question of the degree of permanent impairment is to be assessed. The body parts that must be assessed are the left and right lower extremities (knee) and the lumbar spine. The issue in dispute is whether those body parts are to be assessed together for the purposes of s 322(2) of the 1998 Act, for a single whole person impairment, or whether they are to be assessed separately.
The applicant’s pleadings in the Application provides three dates of injury. All three dates claim the lumbar spine, left and right lower extremities, and cervical spine. This illogicality (noting that the left knee injury did not occur until 2017, but is claimed as occurring on 22 April 2014) is likely due to a restriction in the electronic form used to commence proceedings in the Commission.
The letter making a claim for permanent impairment compensation provides that the claimed 18% whole person impairment is “with a deemed date of injury being the date last worked, namely 2 December 2019”. The claim form repeats that date of injury but provides that it is a “disease of gradual process – last day worked 2 December 2019”. The claim form also lists the thoracic spine as being injured. In the s 78 notice issued on 27 October 2023, reference is made to subsequent correspondence indicating that the date of injury of 2 December 2019 was, in fact the fall that occurred on 18 December 2019 causing a further right knee injury. I do not have a copy of that correspondence before me.
I would observe that any attempt to frame the claim as a “nature and conditions” or disease type claim was not pressed at hearing. The dispute was presented as three separate incidents, including potential consequential conditions, that could be combined as a singular whole person impairment. Separate falls that occurred during employment would be difficult to constitute “nature and conditions”, but that is not the dispute that I must determine. Cases are determined on the evidence and arguments presented, not on the pleadings or particulars (Barnes at [54]).
The applicant presented her case in alternative fashions. The first, relying on Barnes, is the claim is for a single whole person impairment arising out of three incidents. This submission relies on s 8(b) of the Interpretation Act 1987, which provides that “a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form”. The references to “an injury” in the 1987 Act should be read as “injuries”.
In Barnes, the applicant injured her lower back in the course of her employment on three separate occasions. Liability was accepted for each incident. The symptoms were similar on each occasion and consistent with L4/L5 pathology. Deputy President Roche considered relevant authorities concerning the meaning of the phrase “injury” in s 66(1) of the 1987 Act, including Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (Serna) and Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 (Juweinat). In Juweinat, Basten JA referred to Woolage v State of New South Wales [2001] NSWCA 256 (Woolage). Analysing those principles, DP Roche held:
“The principles discussed in Serna and Juweinat are applicable in the present matter. Those principles establish that, consistent with the authorities relied on by Mr Stanton (see [37] above), a single impairment or condition can result from more than one injury.”
What must be observed about all of the authorities referred to above (Serna, Juweinat, Woolage and Barnes, relied on by the applicant), is that the claim for permanent impairment (or damages) involved multiple incidents to the same body part. Barnes is set out above. Serna involved two robberies on separate occasions resulting in psychological injury. Juweinat involved a worker lifting heavy articles on three separate occasions, in each case causing pain and discomfort in the back. Woolage involved “two separate but identical incidents when a desk chair mounted on castors moved away”, causing coccyx injury. In each case, the pathology is the same, and the incidents affected the same body part.
The circumstances here are different. The applicant injured her left knee in 2014 and her right knee in 2017. Whilst both involved falls, that does not mean that the same injury has occurred, nor does it necessarily mean that the same pathology results. I will deal with the pathology issue below.
Whilst Barnes provides authority for the general contention that multiple injurious incidents can result in a singular permanent impairment, that does not mean that every injury suffered in the course of employment with a singular respondent can be assessed as one whole person impairment. The Deputy President acknowledges this at [75]:
“It may well be that, in some instances, the legislation prevents the accumulation of the consequences of separate incidents to satisfy a particular threshold (see, for example, Merchant, where it was held that the whole person impairments caused by multiple unrelated incidents to different body parts, involving different pathology, could not be aggregated to meet the ‘seriously injured worker’ threshold of 30 per cent in s 32A of the 1987 Act).”
Barnes also provides authority for the applicant’s contention that “injury” can mean “injuries”:
“Therefore, as a matter of statutory interpretation, in the appropriate case, ‘injury’ in s 66(1) can include ‘injuries’ and is not confined to a single injurious incident or single injury.”
Both parties provided submissions addressing Merchant during the hearing. That case concerned s 32A of the 1987 Act for the purposes of determining whether a worker reached the threshold of “seriously injured worker”. The “multiple unrelated accidents” in that case are set out at [4]-[7]. They involved injuries on different dates to different body parts, involving lifting. Merchant also considered the operation of ss 5 and 8 of the Interpretation Act 1987. In that case, Keating P reached a different conclusion to that reached in Barnes in relation to the presumption in the Interpretation Act 1987:
“Applying the principles discussed in Dilley and Pfeiffer I am satisfied that any presumption created by s 8(b) of the Interpretation Act is displaced by the contrary intention which is evident from the legislation when read as a whole.”
Barnes was decided after Merchant and these different determinations based on the facts of each case is identified by DP Roche:
“Further, under the Interpretation Act 1987, unless a contrary intention appears, the reference to a word in the singular form includes a reference to the word in the plural form (see ss 5 and 8 of the Interpretation Act 1987). (In making this statement, I am not suggesting that Merchant, which dealt with a similar issue, but in a significantly different factual and statutory context, was wrongly decided.)”
In Merchant, Keating P considered the long held authority of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed) which held that “injury” in s 322(2) and (3) can have two different meanings, being the injurious event and the pathology. Also referenced was Galluzzo v Little [2013] NSWCA 116 at [41]:
“This, in my respectful opinion, is an accurate summary, subject to one modification. The provisions envisage that an ‘injury’ (or several ‘injuries’) will ‘arise from’ an ‘incident’ and that one or more ‘impairments’ will ‘result from’ the ‘injury’ (or ‘injuries’); and that it is ‘impairment’ or ‘impairments’ that must be assessed. The penultimate sentence in the quoted extract should therefore read:
‘The impairments resulting from those ‘injuries’ are to be assessed together.’”
There is some uncertainty as to whether Edmed remains a relevant authority. In Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan), the Court of Appeal discussed Edmed, declining to express a concluded view concerning the correctness of the decision (at [22]). Ultimately the case was distinguished on the basis that no argument was put in Edmed that later injuries “arose out of” or “resulted from” earlier injuries, that is a question of material contribution.
Ozcan turned on consideration of the three categories in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley), which were discussed in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321. In Ozcan, the worker injured her lumbar spine, thoracic spine and right shoulder. She suffered a further injury to her lumbar and thoracic spine. The Court of Appeal held, overturning the Deputy President’s decision, all of the injuries “resulted from” and “arose out of” the first incident and should be assessed together. That is that the original injury to the lumbar spine, thoracic spine and right shoulder materially contributed to the second injury date, being withing the second category identified in Oakley.
The circumstances in the present case are different. In the initial injury on 22 April 2014, Ms Gilli injured her left knee only. I have rejected any contention that the left knee injury materially contributed to the lumbar spine above. The only other way the left knee injury could be connected to the other injury claimed is if it materially contributed to the right knee injury that occurred on 15 March 2017.
Following Barnes and Merchant, the issue was considered (again in the context of s 32A of the 1987 Act) in Davison v State of New South Wales [2015] NSWWCCPD 47. Keating P distinguished Barnes in that case:
“However, it is important to note that, in that case the single impairment resulted from three separate injuries to the back, not separate and unrelated injuries to different body parts. The facts in this case are quite different. The impairment claimed arises from two separate and distinct injuries: one in 1996 to the neck and right arm, and one in 2002 to the back. Thus, the interpretation of ‘injury’ in s 66 in Barnes does not assist Ms Davison.”
In my view the present case is factually consistent with Merchant and Davison and distinguishable from Barnes and Ozcan. In terms, in particular, of the knee injuries claimed, Ms Gilli suffered two separate and unrelated injuries to two different body parts.
The applicant submitted otherwise during the hearing, suggesting that the injuries are related in various ways – being the causally related condition in the lumbar spine, that when you have injury to one leg, you favour the other, and that in any event the pathology in both knees is the same, invoking the alternative meaning of injury in s 322(2) and (3).
In respect of the first point, I have dealt with that above. I am satisfied that the applicant’s lumbar spine condition arose as a result of the right knee injury on 15 March 2017. There is no reference to any back symptoms following the incident on 22 April 2014, until the unclaimed injury that occurred in December 2015. There is brief reference to a gait disturbance that does not eventuate in any condition in the lumbar spine. The lumbar spine is not causally related to both knee injuries.
The applicant’s second contention, concerning favouring of one leg, would require me to accept that as a result of the injury on 22 April 2014, the applicant suffered a consequential condition in her right knee, and/or as a result of the injury on 15 March 2017, the applicant suffered a consequential condition in her left knee. This is not the applicant’s case, although some bare submissions were made at hearing suggesting that I could make that finding. It does not find support in the opinion evidence or the clinical records that I have discussed in detail above.
The final contention in support of the applicant’s submission that the conditions are related is that the pathology is the same in both knees. There are a number of submissions that the applicant made concerning the pathology.
The first is that I should be concerned with the pathology in the context of the present claim for lump sum compensation, and not particularly the pathology identified in the contemporaneous scans. No authority was referenced for this position. It is not clear why I should accept that proposition. One knows through common experience that the presenting pathology when an injury is first experienced may be different, even vastly different to that many years later when a claim for lump sum compensation is made. It is also common that injuries, including capacity and impairment arising from, can deteriorate or improve over time. Permanent impairment is a circumstance capable of change. What is not capable of change is the incident that led to an injury occurring.
In my view there is no basis to accept the contention that I should consider the pathology at present to determine whether the pathology is the same for the purpose of s 322(2). That is based on a commonsense reading of s 322(2), taking the word “injury” to mean “pathology”.
Section 322 is concerned with the assessment of impairment. Impairment is assessed in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment, 4^th edition (Guidelines), issued pursuant to s 376 of the 1998 Act. Clause 1.17 of the Guidelines reflects s 322 of the 1998 Act and provides:
“Impairments arising from the same injury are to be assessed together. Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.”
Impairment does not mean pathology. It invokes a wider concept than pathology and includes a series of relevant considerations, including diagnosis, whether the impairment is permanent, whether the condition has reached maximum medical improvement, and previous injury, condition or abnormality.
At present, the applicant submits that she suffers from post-traumatic arthritis in both knees. This is extrapolated from Dr Endrey-Walder’s assessment of impairment being patello-femoral chondropathy in both knees, equating to 2% whole person impairment.
When one looks closely at the opinion of Dr Endrey-Walder, whilst the assessment of impairment arising out of patella-femoral chondropathy is equal in both knees, Dr Endrey-Walder discusses the diagnosis and background issues in different terms. The incident in April 2014 resulted in meniscectomy (which is also reflected in the assessment of impairment being 1% higher than the right knee). The right knee required arthroscopic chondroplasty due to grade 4 pattellar chondropathy. His diagnosis in full is:
“My diagnosis is patello-femoral chondropathy at both knee joints, some impairment assessable at the left knee on account of the partial medial meniscectomy…
I do believe there would have been some meniscal wear and tear in the left knee by the time she h ad the arthroscopy in August 2014, this is clearly aggravated by her fall of 22.4.2014.
It would also be reasonable to suggest that the fall onto her right knee in March 2017 had impacted on some pre-existing, underlying chondropathy at the patella-femoral joint, aggravating and exacerbating it.”
Even were I to accept the construction encouraged by the applicant (that I can consider pathology in different body parts to be the same for the purpose of s 322(2)), the factual basis for the assertion is absent. The pathology is different. The differences are minor but they are not the same. This is regardless of whether one looks at the pathology at the time of the incident or the present pathology.
I have discussed Barnes et al above. The consistent thread in those cases is the injuries that were combined were to the same body part resulting in increasing, but the same, pathology. That is not the case here. During submissions, counsel for the respondent pointed out that he could identify no cases where a worker was entitled to do what the applicant suggested was the case here – combine different body parts on the basis that it is the same pathology. I have likewise been unable to find any authority for the proposition advanced by the applicant.
I do not accept that the pathology in both knees is the same, or that the injuries have materially contributed to each other, causing contralateral consequential conditions. Accordingly, the referral to a Medical Assessor is to be framed to recognise that the applicant has suffered from a left knee injury on 22 April 2014, a right knee injury on 15 March 2017, and a consequential condition in the lumbar spine arising from the right knee injury. The right knee injury and lumbar spine injury are to be assessed together. Any impairment arising from the left knee injury should not be combined with the right knee and lumbar spine.

[2024] NSWPIC 485

2 September 2024