Godwin v State of New South Wales (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Godwin v State of New South Wales (Western Sydney Local Health District) [2023] NSWPIC 68
APPLICANT:	Joanne Godwin
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
Member:	John Wynyard
DATE OF DECISION:	21 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Dispute over whether claimant suffered consequential conditions which caused her to trip and aggravate them in 2013; whether the trip and fall constituted a novus actus interveniens; whether medico-legal opinion supported claim; whether claimant’s evidence probative; parties agreed that the original injury to the left knee in 2011 was aggravated in the trip and fall; Held – claimant failed to establish that the consequential conditions existed at the time of the trip; claimant’s evidence dealing with events going back 10 years, during which time she had come to a total left knee replacement in 2016 which had to be revised in 2017, and an arthroscopic medial meniscectomy of the alleged right knee consequential condition in 2017; contemporaneous evidence did not support allegation of right knee and lower back conditions prior to the 2013 event; Mason v Demasi considered; expressions of opinion and fact from claimant rejected as being unreliable; Coote v Kelly and Northam v Kelly considered; medico-legal expert for claimant failed to address the issue until final report, which was inaccurate and confused; medico-legal expert for the respondent accepted as according with probabilities; award for the respondent.
determinations made:	1. There is an award for the respondent as to the claim that Ms Godwin has suffered a consequential condition to her right leg or her lower back on 28 March 2011. 2. In accordance with the agreement of the parties, there is an award in the applicant’s favour for $33,000 in respect of 21% whole person impairment caused by injury to the left lower extremity (knee). 3. I grant liberty to apply for the reasons given below.

STATEMENT OF REASONS

BACKGROUND

Joanne Godwin, the applicant, brings an application against State of New South Wales (Western Sydney Local Health District) the respondent, for lump sum compensation following an accident on 28 March 2011.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged followed by the reply.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has the applicant suffered a consequential condition to her right knee and her lumbar spine following the accepted injury to the left knee on 28 March 2011.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was heard in person on 12 December 2022. The applicant was represented by Mr Christopher Lehmann of Gerard Malouf & Partners instructing Ms Nicole Compton of counsel and the respondent was represented by Mr Graham Barter instructed by Mr Michael Lee of Moray & Agnew. Also in attendance was Ms Monica Nguyen from the insurer.
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 Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made with respect to oral evidence.

FINDINGS AND REASONS

Since publishing my reasons it has been brought to my attention that the applicant had filed submissions in reply. I therefore revoke my previous reasons and publish this amended decision.
There are two events which are the focus of this dispute. The first occurred on 28 March 2011, and the second on 10 September 2013. I shall refer to them as the 2011 and 2013 events respectively.
Ms Godwin retained Dr James Bodel as her medico-legal expert. The applicant was also assessed by Dr David Millions for the respondent.
Both experts agreed that the left knee injury in 2011 had resulted in a whole person impairment (WPI) of 21%, and agreement has been reached in that regard.
The applicant however sought lump sum compensation in respect of the injuries she claimed were consequential, being the right knee and the lumbar spine. The respondent maintained through its dispute notices that an event on 10 September 2013 was a novus actus interveniens. The respondent accepted that the 2013 event aggravated the left knee condition, but claimed that the right knee and the lumbar spine conditions were not consequential to the 2011 injury.

Ms Godwin

Ms Godwin relied on her statement dated 3 December 2021.
Ms Godwin began working for the respondent in 2008 as an Endorsed Enrolled Nurse. Part of her duties was to work in the rehabilitation ward at Westmead Hospital, using hydraulic lifters to manoeuvre bedridden patients to their wheelchairs or commodes. She said at [3]:
“During the course of my employment with Westmead Hospital, I sustained an injury to my left knee. I subsequently developed a consequential condition to my right knee.”
She described her left knee injury at [8] of her statement:
“On 28 March 2011 I was moving a heavy patient with the Hydraulic Lifter that had faulty wheels. As I was straining to transfer the patient and pivoting on my left knee, the lifter jammed and would not give. I felt a painful popping and clicking sensation in my left knee. I was able to complete the transfer, however after inspecting the lifter I saw that the wheel of the lifter had locked due to being filled with debris. An incident IMMS report was completed in early April 2011.”
Ms Godwin came to surgery on 23 September 2011, after which she returned to work on a graduated program. Following some adjustment to her rehabilitation, her left knee pain settled, and Ms Godwin said that she was certified to work eight hours per day six days per week on modified duties from February 2012. This workload caused ongoing problems with her left knee, which again became symptomatic to the extent that she started limping, mostly at the end of her shift.
At [19] she described the continuing treatment and management of her left knee injury. She said:[1]
“I first started to limp after my left knee surgery in September 2011. I limped because I was unable to put weight on my injured left leg, which is now bone on bone due to my [medial] meniscus being removed. When standing or walking I bore most weight on my right leg (almost exclusively) due to my lack of confidence and pain I was experiencing in my left leg. Over the next twelve months, and into 2013 I started to rely increasingly on my right leg. My left leg was still weak, fatigued, unstable and extremely painful (especially after my shifts).
[20] This was made even more difficult as my role as an enrolled nurse required me to be on my feet and mobile for the entirety of my working day. While I was at home, I had the opportunity to get off my feet and give my legs a break. I did not have this opportunity at work however, and this exacerbated the pain I experienced in both knees.”
[1] ARD page 4.
On 10 September 2013 Ms Godwin suffered a further injurious event. Ms Godwin said at [22]:
“On 10 September 2013 I had just finished my afternoon shift and at around 10:30pm I was walking back towards my car (which was parked in the carpark located underneath the end of the Unit building). It was quite dark, and I stepped on an uneven surface (a large piece of bark from the side garden) and lost balance. I lost balance because my left and right knees were weak and gave way after I stepped on a piece of bark. Had I
not suffered injury to my left knee on 28 March 2011 and developed problems with my right knee as a result, I do not believe my knees would have given away caused me to fall. After my left and right knees gave way I fell heavily on my right side of my body and then overcorrected to the left. I suffered a twisting injury to my right and left knees, lower back, and (most significantly) my right ankle. I also felt pain in my buttocks. By far the worst pain was in my right ankle. I was already on restricted duties at the time, and re-commenced hydrotherapy and attended physiotherapy before and after work.”
Ms Godwin consulted her general practitioner (GP) Dr Kek on 13 September 2013. She said at [23]:
“….Dr Kek related this incident to the previous incident in 2011…”
Ms Godwin then described her contact with the insurer when she was advised that the 10 September 2013 incident was being treated as a new incident with a new claim number.
She said that her right knee and ankle problems resolved relatively quickly, but that after a month she continued to be symptomatic in her lower back and left knee. She took no time off work, and managed her symptoms with different forms of physiotherapy. Again her work duties were restricted and by the end of September 2014 she said she was certified fit to undertake modified duties. She said that by about late January 2014 her right knee symptoms had settled.
Ms Godwin described the onset of left knee symptoms on awaking on 14 February 2014. She reported it and said she understood it was attributed to her fall on 10 September 2013, although she stated at [29] that the pain and discomfort she felt was the same as she experienced in 2011.
Ms Godwin then mentioned a further workplace incident that had occurred the day before, on 13 February 2014, when doing an assisted lift, and her discussion about that with her Nurse Unit Manager. By March 2014 Ms Godwin said that her left knee condition was worsening, and that her duties “took a massive toll” on her knees. By mid-2014 Ms Godwin’s right knee pain “also began to increase,” and she consulted her GP, commenting that she believed her right knee problems had been caused by its “taking the strain off my left knee for the past 3 years.”[2]
[2] ARD page 6 [34] and [37].
Ms Godwin subsequently came to two further surgical procedures to her left knee – a total knee replacement on 2 March 2016, and revision surgery in February 2017. Following the latter procedure, Ms Godwin was using two crutches and could partially weight bear on her left leg. She said at [46]:
“I used the crutches for approximately 4 months. This, again, placed a lot of strain on my right knee as it was bearing most of my weight. As a result of relying on my right and prolonged use of crutches my right knee became increasingly painful after the February 2017 surgery to my left knee and leg.”
Ms Godwin described a further incident in mid-May 2017 when she stumbled on arising from a seated position whilst gardening at home. She noted increased pain in her right knee. Ms Godwin took exception to a history recorded by Dr Rizkallah that she had actually fallen. She stated that she stumbled, but did not fall in that 2017 incident. She said that Dr Rizkallah advised her she had torn her meniscus. She said at [51]:
“He told me the meniscal tear and the pain and discomfort in my right knee was most likely due to my long history of left knee problems which began in 2011 (following the initial incident at work).Dr Rizkallah explained that I had been overloading my right knee for some years, especially since the total knee reconstruction surgeries.”
Ms Godwin stated at [52]:
“I believe my current right knee and leg symptoms have arisen as a result of my left knee injury on 28 March 2011 and subsequent surgeries. After my injury on 28 March 2011 I began to rely more and more on my right leg and right knee to compensate for my weak and unstable left knee. Had it not been for my left knee injury on 28 March 2011 and subsequent right knee problems I would not have fallen on 10 September 2013. Also, my fall on 10 September 2013 aggravated my left and right knee symptoms but the pain, stiffness, and discomfit on my left and right knees settled with time and went back to the levels they were at before this incident occurred.”
Ms Godwin noted that a right knee meniscectomy in June 2017 had been “approved and funded” by the insurer. She also described further revision surgery to the left knee, which was performed in March 2018, after unsuccessfully attempting a return to work on 11 December 2017. Ms Godwin returned to suitable duties in June 2019, but was medically terminated in late March 2021, there having been no suitable duties available since August 2020.

Dr James Bodel

Dr James Bodel, orthopaedic surgeon, wrote four reports dated 4 May 2020, 21 June 2021 and two reports dated 18 February 2022.

4 May 2020

In his report of 4 May 2020, Dr Bodel summarised that there had been “injury to the right knee.”[3] He took an extensive history of the left knee injury and treatment. He noted that Ms Godwin had undergone a left knee replacement procedure in 2016 which had not been a success. He noted the revision surgery in February of 2017, which was also unsuccessful due to problems with the frontal prosthesis which caused her to be partially weight bearing for over four months. She remained on crutches for the next twelve months. A further revision of the left total knee replacement took place in March 2018, which Ms Godwin found most helpful.
[3] ARD page 193.
With regard to the right knee, Dr Bodel noted that Ms Godwin came to arthroscopy in June 2017, and that no further treatment had then been recommended for the right knee. He noted that Ms Godwin was complaining about her right knee. He reported:[4]
“The right knee is functioning reasonably well although there is some anteromedial knee pain and again she has difficulty kneeling or squatting.”
[4] ARD page 194.
On examination Dr Bodel noted a mild limp on the left side, and that when standing, Ms Godwin could not fully extend either knee on examination. He noted complaints of pain in the left side of her lower back.
No investigations were available.
The following questions and answers were recorded:
“1.    History of injury obtained.
This lady has had an injury to the left knee which occurred in a twisting event at work on 28 March 2011. She has had consequential injuries involving the right knee and the plantar fasciitis in the left heel as well as the Achilles tendinitis, all associated with that injury.
2.      Nature of condition found on examination.
This lady has post-traumatic osteoarthritis in the region of the left knee which has led to a series of knee replacements and she has plantar fasciitis in the left heel and Achilles tendinitis in the left heel. She also has early osteoarthritic change in the right knee.
3.     Whether you consider our client’s condition has stabilised.
This lady’s clinical condition has probably stabilised from the point of view of the left knee and the left foot and ankle.”
Dr Bodel then assessed the injury and found there was a 4% WPI for the right knee. He did not assess the lower back. Dr Bodel did not take any history of an event on 10 September 2013.

21 June 2021

In his report of 21 June 2021 Dr Bodel reported that he had been supplied with clinical notes from Dr Rizkallah and reports from Dr Millons.
Dr Bodel noted Dr Millons’s opinion that the right knee condition appeared to be related to “an injury in 2013 which led to an arthroscopy of the right knee in 2017.”
Dr Bodel said:[5]
“In my view, the injury to the right knee is the aggravation, acceleration, exacerbation and deterioration of a disease process caused by the original injury in 2011 and further aggravated by the subsequent injury in 2013.”
[5] ARD page 193.

18 February 2022

On 18 February 2022 Dr Bodel repeated the history he had taken on 4 May 2020. As to the alleged consequential conditions, he said:[6]
“Over time she began to develop right knee pain and lower back pain because of the abnormal gait pattern.”
[6] ARD page 182.
Dr Bodel traced the history of Ms Godwin’s treatment, noting that she had returned to work on community based nursing. Dr Bodel then said:[7]
“Today she states, as I indicated above, that her employment was eventually terminated in March 2021 on medical grounds.
She subsequently had a fracture of the left femur when she stepped on a large piece of bark and fell heavily on her right hand side. She twisted both her knees and back.
The further surgery on the left knee in February 2017 was complicated by the femoral fracture. This kept her on the crutches for a long period of time, as I indicated above.”
[7] ARD page 182.
Dr Bodel found that the right knee condition was caused by post-traumatic osteoarthritis in the region of the right knee. As to the lumbar spine, Dr Bodel said:[8]
“She does have lower back pain aggravated by the abnormal gait pattern generated by the saga in relation to her left knee.”
[8] ARD page 185.
Dr Bodel’s diagnosis in relation to the right lower extremity was:[9]
“In the right knee she has post-traumatic osteoarthritis in the region of the right knee but has not had a knee replacement, although it is likely that it will need to be considered in the next three to five years. She is very reluctant to consider a knee replacement on the right side because of this serious set of circumstances that has happened with the left knee.”
[9] ARD page 185.
Dr Bodel was asked specific questions about 10 September 2013. He said:[10]
[10] ARD page 189.
“b. The extent (also expressed as a percentage) to which assessable impairment results from:
i.      The incident/injury on 11 March 2011?
I would indicate that 21% Whole Person Impairment in this injury is due to the incident that occurred on 11 March 2011.
ii.      The incident/injury on 10 September 2013?
There is no specific level of Whole Person Impairment for the incident on 10 September 2013.
iii.     The incident/injury on 13 February 2014?
There is no specific level of Whole Person Impairment for the injury on 13 February 2014.
iv.     The incident/injury in May 2017?
The remaining 9% Whole Person Impairment (30-21) is attributable to the incident in May 2017.
v.      A previous injury and/or pre-existing condition and/or abnormality unrelated to the above incidents/events.
There is no pre-existing condition or abnormality.”

Dr Kek

The applicant’s counsel took me to the clinical notes of the Mt Druitt Medical Centre. She agreed that the notes did not show any contemporaneous complaint about the right knee until after the 2013 incident.
Following the event of 10 September 2013, Ms Godwin consulted her GP, Dr Kek on 13 September 2013. Dr Kek recorded:[11]
“stepped on piece of bark and stumbled, followed by pain in both knees, lower back n R ankle, shoulder on10/9/2013 at work at westmead hospital, brain injury unit
strapped L knee n R ankle by nursing unit manager, were swollen most sore overr the I knee and r ankle, limping, no nsaid -git·effects letter to psych raynor lander of penrith therapy
Examination:
L [knee] and r ankle strapped, bruise in lat ankle and bruise noted no effusion
Reason for contact:
Right Ankle sprain
Left Knee Injury”
(As written.)
[11] ARD page 127.

Dr Rizkallah

The insurer met the cost of the right knee surgery in 2017 by Dr Sherif Rizkallah, whose opinion was given in a report dated 8 June 2017, in answer to an enquiry from the insurer. He said:[12]
“I believe that the left knee injury, disability and multiple surgical procedures for the last 6 years has resulted in exacerbation and acceleration of the right knee degeneration.
In my opinion, Ms Godwin has some measure of degenerative wear in relation to her right knee, although this has been significantly accelerated and exacerbated by the compensable left knee injury.”
[12] ARD page 396.
There was no history taken in the material lodged from Dr Rizkallah of any incident on 10 September 2013. Ms Godwin was first referred to him by Dr Sharma (in practice with Dr Kek) on 8 July 2016.[13]
[13] ARD page 448.

On 24 May 2017 Dr Rizkallah referred to a “significant fall a couple of days ago injuring her…right knee,” but did not mention any other injurious event.[14]
[14] ARD page 403.

Dr Millons

Dr David Millons, an accredited medico-legal expert, wrote four reports dated 24 August 2020 (2), 26 August 2020 and 1 June 2022, addressed to the respondent.

24 August 2020

On 24 August 2020 Dr Millons took a comprehensive history. He recorded:[15]
“Ms Godwin, who had worked through, was going from the workplace to her carpark. She had to go down a flight of 12 stairs to get to the carpark which was under the building. It appears that the area was ill lit. She tripped on some bark that had blown in and fell heavily onto her hands and knees. She picked herself up.
She was aware of pain in both knees, the left more than the right. She also appears to have sustained an injury to her lower back and right shoulder.”
(As written.)
[15] Reply page 4.
Dr Millons then related the following history:
“She reported back to Dr Kek at that time and kept working in the face of ongoing symptoms. She appears to have gone onto restricted duties at that time but she was still working fulltime.
She was reviewed by Dr Coffey. It appears that by then it was August 2015, she having worked during that period. Dr Coffey felt that she needed a left total knee replacement.
Another opinion was sought from Associated Professor Hope in September 2015 who concurred with that operative course.
It was in 2016 that her then LMO, Dr Sharma, referred her through to see Dr Rahme, Orthopaedic Surgeon. I see that she came to a left knee arthroplasty on 2 March 2016 in Strathfield Private Hospital. She had worked up until that time.
She was in hospital there for a few days, then transferred through to Minchinbury Hospital for some rehabilitation. She was there for a couple of weeks and then went home on a walking stick.
She did not do too well after that knee replacement. She underwent hydrotherapy and physiotherapy. The knee remained painful and seemed unstable. She was not able to return to work at that stage.
Another opinion was sought from Dr Rizkallah in July 2016. He recommended revisional surgery.
Another opinion was sought from Dr Hyde Page somewhere along the way. He did not think she warranted surgery.
Yet another opinion was sought from Dr Al Muderis who recommended a revisional arthroplasty.
Finally, in February 2017, Dr Rizkallah operated on the left knee with an exchange prosthesis and a hinged prosthesis being inserted.
Ms Godwin may have been working on restricted duties in the Brain Injury Unit, helping as best she could, until the time of operation.
There were some issues with Dr Rizkallah’s operation when, while reaming the femur, there was some perforation of the femoral cortex. That slowed the progress of Ms Godwin.
She was an inpatient in Nepean Private Hospital for 5 or 6 days, then went to Hills Rehabilitation for another 2 weeks. She was discharged from there partially weightbearing on crutches and she retained the crutches for some time.
She does not appear to have got back to work after that time.
Ms Godwin started to develop some issues with her right knee. Because she was only partially weightbearing on crutches because of left knee problems, she was taking more weight on the right. She underwent some investigations and was found to have a torn medial meniscus in the right knee.
Dr Rizkallah performed a right arthroscopic medial meniscectomy on 27 June 2017. That did ease her symptoms to a degree although not completely so.”
(As written.)
In his opinion, Dr Millons noted that Ms Godwin had some issues with her right knee, “apparently following the fall in September 2013.”[16] He referred to the right knee arthroscopy in June 2017, observing that the knee was in reasonable order.
[16] Reply page 11.
When asked if he thought there had been a consequential injury to her right knee, Dr Millons said:[17]
“I do not. She could have sustained an injury de novo to the right knee in the fall in September 2013.
…
As far as the right knee is concerned, that was an injury de novo and not related to the injury in March 2011.”
[17] Reply page 14.
Dr Millons gave a WPI assessment of the right knee, but withdrew his assessment in his second report, dated 26 August 2020 to properly reflect his findings.

1 June 2022

In his report of 1 June 2022 Dr Millons accurately repeated the history and gave a thorough review of the treatment Ms Godwin had been managed with. He noted his earlier advice that the history was “long and complicated.” He repeated the history that the right knee issues came to light following the 2013 fall down the stairs. He said:[18]
“She has ongoing problems with the right knee which joint aches and will swell. Along the way, there was some talk that she would need a knee replacement but nothing much seems to have happened in that regard. That area seems to be in dispute.
She again confirms that she did injure the right knee when she fell down the stairs in September 2013. She states that her right knee would ache when she was taking more weight on that side to protect her left leg.
She is still troubled by pain in the lower back since that fall down the stairs.”
(As written.)
[18] Reply page 26.
Dr Millons repeated that history later in his opinion, saying:
“She then had the fall down the stairs on 13 September 2013, landing on her hands and knees. She appears to have sustained some aggravation of the degenerate changes in the left knee at that time.
She also developed some symptoms in her right knee which had been asymptomatic prior to that time.
She also appears to have sustained some injury to her lower back and right shoulder in that fall.”
(As written.)
When asked as to whether the 2013 incident caused consequential injuries, Dr Millons said:[19]
“I believe that symptoms in the back and right knee are not really consequential injuries but are secondary, in part, to the fall down the stairs in September 2013 when she appears to have sustained a tear of the medial meniscus and, in part, due to the normal activities of daily living and her weight playing on some developing attritional change.”
[19] Reply page 35.
Dr Millons was also asked to comment on Dr Bodel’s opinion. He observed relevantly:
·        Dr Bodel thought the right knee pain developed because of an abnormal gait pattern;
·        Dr Bodel did not specifically mention the “fall down the stairs which seems to have set in train problems with the right knee and lower back”;
·        Ms Godwin did not fracture her left femur in the fall, as assumed by Dr Bodel;
·        Ms Godwin suffers from post-traumatic osteoarthritis in the right knee, but it was not caused as a consequence of the left knee injury, but “had its origin in an incident de novo on 13 [sic -10] September 2013”;
·        Dr Bodel did not specifically record the injury of 10 September 2013, and
·        the injury of 10 September 2013 also caused some injury to the right knee and low back with symptoms continuing.

SUBMISSIONS
Ms Compton

Ms Compton went through the clinical notes, emphasising the history of treatment concerning the left knee. There were consistent reports of Ms Godwin seeking treatment, she said, which noted that Ms Godwin had a normal gait, but was limping a bit at the end of her shift. Ms Compton noted the continuing visits to her GP for her left leg.
Ms Compton relied on the applicant’s account of the 10 September 2013 incident, stressing Ms Godwin’s explanation as to how she fell. Ms Compton submitted that Ms Godwin’s explanation had some probative weight, as she was a trained nurse and could be expected to have a better insight into her condition. I could accept Ms Godwin’s evidence not only as to the accuracy of her memory, but also as to her opinion that she fell partially because her right knee problems.
Ms Compton submitted in the alternative that even if I did find the 10 September 2013 incident was not a consequential condition resulting from the injury of 2011, but that Ms Godwin stumbled when she trod on a piece of bark, the further question arose as to why she stumbled on the bark. Even if I were to find that her left knee condition did not cause her to stumble, that did not take away from the position that she had a consequential condition. It would be a matter for a medical assessor to decide whether “some type of deduction” should be made for “pre or post matters.” (I found this line of argument difficult to follow, with respect, but the submission appeared to rely on the proposition that Dr Rizkallah’s 2017 opinion was germane to the question).
Ms Compton submitted that where there was a consequential condition in relation to an accepted injury and then there was a non-work related condition, the degree of WPI might or might not be affected, but that did not affect the question of liability. The insurer would later make an administrative decision as to whether the 2013 injury was an injury simpliciter, or separate injury, she submitted. (Again I had trouble following this argument in view of the current dispute, which had occurred because the insurer had already made its administrative decision, which was the basis of the s 78 notice.)
Ms Compton conceded that the evidence concerning the lumbar spine was scant. There were reports after 2013, but Dr Bodel’s view was that the abnormal gait pattern generated by the saga in relation to Ms Godwin’s left knee had aggravated her lower back pain, as well as her right knee condition. There was little ongoing treatment recorded, which could be accepted, Ms Compton submitted, as the lumbar pain was low grade and not as significant as the problems in her knees.
Ms Compton referred to the contact between the insurer and Dr Rizkallah regarding the approval for the 2017 arthroscopy to the right knee. Dr Rizkallah, like Dr Bodel, fixed the cause of the right knee condition as being the compensable left knee injury which exacerbated and accelerated the pre-existing degenerative condition of her right leg.
Ms Compton submitted that there is no requirement for a claimant to show any pathological change to be entitled to compensation for a consequential condition. A complaint of pain was sufficient. The bar was not high, she submitted.

Mr Barter

Mr Barter supplied written submissions dated 20 January 2023, as there was insufficient time for his oral submissions at the hearing.
The respondent accepted liability for the injury to the left leg on 28 March 2011, and it conceded that Ms Godwin suffered injury to her right leg and back, but probably by way of the aggravation of degenerative changes in the incident of 10 September 2013.
Mr Barter referred to Ms Godwin’s account of that event, and particularly Ms Godwin’s opinion as to what caused it. I was referred to Kooragang Cement Pty Ltd v Bates[20] and the well-known principle that there had to be a commonsense evaluation of the causal chain. This approach would satisfy the Commission that the 2013 incident was a novus actus interveniens, Mr Barter submitted, as the contemporaneous evidence prior to 10 September 2013 demonstrated that the left leg symptoms fluctuated with a mild limp occasionally being recorded. There was, however, no indication of any instability in the right leg, and indeed no complaint recorded in that regard.
[20] (1994) 35 NSWLR 452; 10 NSWCCR 796.
After the 10 September 2013 incident however, the clinical notes from Ms Godwin’s GP’s practice showed treatment for the left leg, the right leg and the lower back. Moreover, Dr Kek clearly advised that these complaints resulted from that event.
Mr Barter acknowledged the force of authority which cautioned against an undue reliance on the content of the notes of health professionals – particularly when they were contradicted by sworn testimony. He referred to Daniel Gerard Fitzgibbon v The Waterways Authority & Ors [2003] NSWCA 294 and Davis v Council of the City of Wagga Wagga. [2004] NSWCA 34.
Mr Barter referred to the well-known principle that human memory is fallible, citing Coote v Kelly; Northam v Kelly.[21] That was apposite in Ms Godwin’s case, as she was recalling events that were 10 years old. Mr Barter also observed that it would be much to Ms Godwin’s benefit if her reconstruction of events were accepted.
[21] [2016] NSWSC 1447.
Mr Barter submitted that the evidence of Dr Coffey, who had been treating Ms Godwin from 2012 to 2014 would have clarified the issue, but no evidence had been lodged from Dr Coffey (and I interpolate to observe that no explanation was given for that absence).
Mr Barter made further submissions regarding the medico-legal evidence, which I have incorporated into my determination and there is little point in repeating them here.

Ms Compton in reply

Ms Compton filed submissions in reply on 7 February 2023. She said that a referral would be needed in any event, which is contrary to the agreement which I understood had been reached. I shall grant liberty to apply in that regard.
Ms Compton re-iterated that Ms Godwin had lost balance because of a consequential condition which had been caused by Ms Godwin’s altered gait. There was no requirement for an applicant to corroborate her assertions, Ms Compton said. She itemised the applicant’s work history and repeated that Ms Godwin should be accepted on account of her training and experience as an enrolled nurse.
Ms Compton submitted that there was no dispute as to the cause of Ms Godwin’s stepping on the piece of bark. The medical evidence showed a significant left leg injury prior to that 2013 event and Ms Compton again stressed that Ms Godwin’s account should be accepted, notwithstanding that there was no contemporaneous support in the clinical notes.
Ms Compton kindly reproduced Dr Bodel’s opinion regarding the right knee condition. She stated that a causative link “(per Kooragang)” had been made by the applicant, which had not been challenged. There was “no basis” for her evidence not to be accepted.

DISCUSSION

Ms Compton’s oral submissions were exhaustive and comprehensive, indeed they were so detailed that the respondent has had to rely on written submissions, as Ms Compton took the remainder of the day to complete her address. As I indicated, I found some of her submissions to be somewhat opaque, with respect, but generally she has said all that could possibly be advanced for her client, and certainly repeated it clearly in her submissions in reply.
Although Ms Compton made submissions that suggested Ms Godwin was suffering from problems in her right knee prior to the 2013 incident, the contemporaneous evidence did not support that proposition. The highest the evidence reached was that Ms Godwin said in her statement that she experienced pain in “both knees” when working, as she needed to be on her feet and mobile for the entirety of her working day. This was the only reference which involved the right knee prior to the 2013 incident, and in the light of the following matters, is not of enough weight to be of any probative value. Having pain in the knee as a result of being on her feet all day did not, without more, indicate that Ms Godwin’s pain was from favouring the right leg. There were continuing visits to her GP about the left knee, but no complaints were recorded about the right knee.
Mr Barter quite properly acknowledged that there is a danger in making causal findings based on the contents of the notes of health professionals,[22] but for the reasons that follow, the contents of such notes are but one of the evidentiary strands that are persuasive of a finding that the 2011 event did not cause any consequential condition in the right knee or the lumbar spine.
[22] See e.g Mason v Demasi [2009] NSW CA 227; Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.
A close reading of Ms Godwin’s statement demonstrates that Ms Godwin did not actually claim that she did suffer any right leg symptoms from favouring her right leg prior to the 2013 event. She did not allege that she was suffering symptoms in her right leg before the 2013 event – simply that she was favouring her leg during that time. It can readily be accepted that Ms Godwin was favouring her right leg for a short time following the partial meniscectomy and chondroplasty of 23 September 2011.
However, as indicated by both Ms Godwin herself and in the histories taken by Dr Bodel and Dr Millons, she returned to work in October 2011, and to full hours six days per week for eight hours a day by February 2012. Ms Godwin deposed to further problems with her left knee over that time, but she did not say that she was favouring her right knee as a consequence. Her hours increased over that time until she resumed full hours. There is no reason to infer that she was unable to weight bear over the 20-month period that she was working her full hours.
At the time she made her statement on 3 December 2021, Ms Godwin had clearly become convinced in hindsight that she was suffering symptoms in the right leg as a result of her left leg problems prior to 10 September 2013. She stated that conclusion often in her statement, as indicated. She stated, for example, that “had it not been for my left knee injury [in 2011] and subsequent right knee problems I would not have fallen [in 2013].” The 2013 fall, Ms Godwin stated, “aggravated my left and right knee symptoms.”
Ms Compton submitted that because Ms Godwin’s profession was nursing that Ms Godwin’s opinion as to the cause of the 2013 incident could be accepted. I disagree, with respect. I do not for one minute suggest that Ms Godwin was deliberately seeking to mislead the Commission as to her theory, but it must be remembered that the mind is not a photograph, so that the memories a person might now have of an incident many years ago can be influenced by subsequent events.[23]
[23] See discussion of this issue in Coote v Kelly; Northam v Kelly, cited above, from [99] per Davies J.
The subsequent history of Ms Godwin’s knee troubles may have caused her to innocently reconstruct the events as she now remembers them. Ms Godwin’s statement was dated 3 December 2021, but sought to describe the events of over 10 years ago, during which time she had undergone a left total knee replacement in 2016, a revision of that surgery in 2017 and an arthroscopy on her right knee, also in 2017. This history is consistent with Ms Godwin having to weight bear on her right side for some time from 2016, but it does not support her claim that before 2013 she had a consequential condition in her right knee.
The contemporaneous evidence demonstrated that the right knee symptoms did not occur until after the 2013 fall. Ms Godwin did not initially suggest that they did, and the clinical notes from the Mt Druitt Medical Centre confirmed that statement. Significantly, Dr Millons’s history recorded that, whilst after 2013 Ms Godwin had suffered an ache in her right knee when protecting her left leg, the real issues with her right knee developed following the left knee revision surgery of 2016/2017 when she was only partially weightbearing on crutches and taking more weight on the right. The right arthroscopic medial meniscectomy of 27 June 2017 would indicate a temporal connection with her latter left knee problems.
There was also a fuller description given of the 2013 event to Dr Millons than Ms Godwin gave in her statement. To Dr Millons Ms Godwin described a flight of 12 stairs she had to go down to get to her carpark. The area was dimly lit, as the applicant also stated, and she tripped on bark and fell heavily onto her hands and knees. Dr Millons also referred to a “fall down the stairs” in his second statement, and it may be that a fall did occur, although the evidence is not clear enough to make a finding that Ms Godwin actually fell down the stairs. The event however may have been more traumatic than that described by Ms Godwin, who agreed she was walking to the carpark underneath the end of the unit building when she lost balance when she stepped on the bark.

It may be noted that Dr Millons was somewhat cautious in his opinion. He said that he “did not believe” the 2013 event had been caused by a consequential injury. He said that the 2013 injury “could have” been a de novo injury.
Dr Bodel’s report of 4 May 2020, whilst describing the right knee condition as being consequential, did not elaborate on its cause. He did mention the year 2013 (“about October 2013”), but only as an approximate date as to when liability had been declined.[24] As noted, he did not elicit the history of the event on 10 September 2013. Dr Bodel found that there was a consequential injury to the right knee following the 2011 incident, but he did not explain the facts and circumstances which led him to that conclusion. His statement was no more than a bare ipse dixit. It may be that Dr Bodel was unaware of the dispute and assumed that he was being asked to advise where liability had been accepted for both knees. In any event his opinion was unhelpful.
[24] ARD page 193.
In his report of 21 June 2021, Dr Bodel noted Dr Millons’s opinion regarding the significance of the 2013 incident. He confirmed that Ms Godwin had post traumatic osteoarthritis in both knees, and repeated that the 2011 event, which had led to a left total knee replacement, had also caused the aggravation of a disease process in the right knee, which had been further aggravated by the 2013 injury. Dr Bodel’s report was a file review, and he did not engage with the factual assumptions on which Dr Millons’s report had been based. His opinion remained unhelpful, particularly as he had no investigations before him at any time. His opinion as to the presence of “post traumatic osteoarthritis” was devoid of any explanation as to when it was first manifested in the right knee, or how he concluded that it had been present prior to 2013.
When Dr Bodel’s came to consider the history again in his report of 18 February 2022, the chronology became somewhat tangled. This was the first occasion that he detailed the facts when Ms Godwin fell on the bark, and he mistakenly thought Ms Godwin had fractured her femur in that event. He also contradicted himself when he stated that Ms Godwin was terminated in March 2021 and “subsequently” stepped on the bark and fractured her femur. Dr Bodel then said that the femoral fracture complicated the further surgery on the left knee back in February 2017. I found Dr Bodel’s opinion in this report to also be unhelpful.
Similarly, Dr Rizkallah first saw Ms Godwin following the referral from Dr Sharma on 8 July 2016, and he had no relevant history of Ms Godwin’s right knee condition. His opinion was uninformed and so general as to be of very little probative value.
I accept Dr Millons’s opinion. His thorough and considered treatment of what was a complex and extended history I accept, as it accords with the evidence and the probabilities. It reflects the facts as they have been established in the contemporaneous material, and Ms Godwin’s original history to him that she injured her right knee in the 2013 incident.
It is in this respect that Ms Godwin’s case must fail. There was no probative competing medico-legal opinion to negate Dr Millons’s opinion, and for the reasons I have given, Ms Godwin’s own evidence is contradictory and inconsistent. I agree that the bar is not high for a claimant to establish a consequential injury, but an applicant is still required to prove his/her case.
I am accordingly unpersuaded that the applicant has made out her case. The claim regarding the lower back condition was not supported by contemporaneous or reliable medical evidence, and is also unsuccessful.
There is accordingly an award for the respondent as to the claim that Ms Godwin has suffered a consequential condition to her right leg or her lower back.
In accordance with the agreement of the parties, there is an award in the applicant’s favour for $33,000 in respect of 21% WPI caused by injury to the left lower extremity (knee).
I grant liberty to apply regarding the above award, for the reasons given when considering Ms Compton’s submissions in reply.

[2023] NSWPIC 68

21 February 2023