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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harvey v State of New South Wales (NSW Police Force) [2025] NSWPIC 530
APPLICANT:	Paul Anthony Harvey
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Turner
DATE OF DECISION:	8 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A(1) and section 60; consequential condition; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, Kooragang Cement Pty Ltd v Bates, and Briginshaw v Briginshaw cited and applied; Held – the applicant has sustained a consequential condition of the left knee as a result of the accepted right knee injury; the respondent to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60 in respect to the left knee including the costs of and associated with the left knee high tibial osteotomy surgery; the respondent is to pay the applicant’s costs; a 15% costs uplift is awarded to both parties.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. That the applicant has sustained a consequential condition of the left knee as a result of the accepted right knee injury on 17 October 2024. 2. The respondent to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect to the left knee including the costs of and associated with the left knee high tibial osteotomy surgery. 3. The respondent is to pay the applicant’s costs. A 15% costs uplift is awarded to both parties. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Paul Anthony Harvey (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury whilst in the course of his employment with the State of New South Wales (NSW Police Force) (respondent).
The applicant pleads that on 17 October 2014 he was wrestling students during training exercises sustaining injury to his right knee. The applicant also alleges that as a result of the injury to his right knee he walked with an altered gait causing a consequential left knee condition.
The relief sought by the applicant is the payment by the respondent pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) of his medical and related treatment expenses including the costs of and associated with left knee-high tibial osteotomy surgery.
The respondent does not dispute the injury to the right knee. The respondent does dispute that the applicant sustained a consequential condition of the left knee.
The applicant commenced employment with the respondent on 28 August 2003 and ceased employment with the respondent on or about 23 August 2018.
It is the applicant’s evidence that prior to commencing employment with the respondent he had no complaints or symptoms of a left or right knee injury.[1]
[1] ARD p. 4.
It is the applicant’s evidence that prior to commencing employment with the respondent he suffered an injury to his right knee in 1998 whilst playing recreational rugby league. He subsequently underwent arthroscopy surgery to the right knee without complications or pain following the surgical procedure. It is the applicant’s evidence that he made a full recovery and was able to continue playing sport.[2]
[2] ARD p. 4.
It is the applicant’s evidence that on Friday 17 October 2014, he was conducting weapon instructor duties at the NSW Police Academy Goulburn, New South Wales. Throughout the day he wrestled several police students whilst conducting approved training exercises and role playing. During the drive home he experienced right knee discomfort and when he arrived home in Sydney, he observed that his right knee was swollen and quite painful.[3]
[3] ARD p. 6.
On or about 29 January 2015 the applicant underwent a right knee arthroscopic meniscectomy and chondroplasty at the hands of Dr Sherif Rizkallah. On or about
[4] ARD p. 6.
4 July 2015 Dr Rizkallah performed a further surgical procedure on the right knee being an adipose derived stem cell therapy procedure, in conjunction with an arthroscopic chondroplasty.[4]
It is the applicant’s evidence that the stem cell surgery on or about 4 July 2014 reduced but did not completely cure his direct right knee pain, and that following the surgery he had continuing pain, swelling and very limited flexibility in his right knee. It is the applicant’s evidence that the pain and swelling caused him to adjust his gait, and he developed a limp which would get worse as the day progressed depending on his activity.[5]
[5] ARD pp. 6-7.
It is the applicant’s evidence that on or about 26 January 2024, he started to experience constant left knee pain, initially whilst walking around the caravan park, but which continued whilst he was seated. That over the next few days he was forced as a result of the left knee pain and minor swelling to sit, however it increased and continued over the next few days.[6]
[6] ARD p. 7.
Following ceasing duties with the respondent it is the applicant’s evidence that he worked as a plumber, a trade which he had qualified and engaged in prior to commencing employment with the respondent.
It is the applicant’s evidence that in relation to his plumbing business, he was not required to kneel for prolonged periods. That the units which he was required to work on and repair were unable to be serviced or repaired from a kneeling position due to confined spaces and occupation health and safety. They had to be removed from where they were installed and were placed on a bench top or similar, to allow adequate access to the unit and for occupational health and safety reasons. Kneeling was only required for the removal or reinstallation of the unit and each time he performed this task he wore knee pads when conducting all plumbing and non-plumbing works and had done so since about 2014.[7]
[7] ARD p. 10.
It is the applicant’s evidence that he had never suffered injury to his left knee prior to
[8] ARD p. 11.
January 2024.[8]

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the respondent disputes that the applicant has sustained a consequential left knee condition, and
(b) whether the treatment claimed including the left knee high tibial osteotomy surgery is reasonably necessary as a result of an injury (s 60 of the 1987 Act).
It is not disputed that the applicant sustained injury to his right knee.
The respondent concedes that the left knee-high tibial osteotomy surgery was reasonably necessary treatment but disputes that it was needed “as a result of an injury”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
12 September 2025. Mr Craig Tanner, counsel, instructed by Mr Rositano, appeared for the applicant, who was present. Ms Lyn Goodman, counsel, instructed by Ms Harvey, appeared for the respondent. The proceedings were conducted in-person. 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)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents;
(c)    documents attached to an Application to Lodge Additional Documents lodged on behalf of the applicant dated 4 September 2025 (AALAD), and
(d)    documents attached to an Application to Lodge Additional Documents lodged on behalf of the respondent dated 4 September 2025 (RALAD).
The following is a short summary of the evidence. The applicant’s statement evidence has been briefly summarised above under background.
On 10 November 2014 the applicant consulted his general practitioner (GP), Dr Salib, who recorded a history of the injury to the right knee on 17 October 2014. Whilst the applicant had complained of ongoing pain and swelling in the knee the doctor noted on examination that the applicant’s gait was normal, that his range of motion was normal and that there was no tenderness or swelling.[9]
[9] ARD p. 165.
On 17 November 2014 the Dr Salib, referred the applicant to Dr Sherif Rizkallah, orthopaedic surgeon,[10] and to Symon Garan of Active 8 Physiotherapy & Sports Injury Clinic.[11]
[10] ARD p. 42.
[11] ARD p. 45.
On 19 November 2014 Dr Rizkallah reported to the respondent that the applicant had presented with right knee pain, clicking and swelling. Relevantly the doctor noted on examination that the applicant demonstrated a slight limp. The doctor reported that the applicant had elected to proceed with a right knee arthroscopic meniscectomy and chondroplasty.[12]
[12] ARD p. 48.
On 29 January 2015 Dr Rizkallah performed arthroscopic surgery on the right knee.[13]
[13] ARD p. 50.
On 24 February 2015 Dr Herman Lau, the applicant’s treating rheumatologist, reported to Dr Salib observing that the applicant’s right knee was still quite swollen.[14]
[14] ARD p. 55.
On 2 March 2015 Mr Garan reported to Dr Salib that the applicant’s right knee had been “quite swollen”, that he had a reduced range of motion, and that his gait had begun to improve in the two weeks prior. Mr Garan also reported that a short time after the applicant’s gait had started to improve he had reported developing sharp knee pain that would grab/catch when stepping off to walk.[15]
[15] ARD p. 53.
On 27 March 2015 Dr Rizkallah reported to the respondent that the applicant was still having problems with his right knee with symptoms of secondary patella femoral maltracking with constant swelling and dysfunction. On clinical examination the applicant demonstrated an obvious limp.[16]
[16] ARD p. 59.
A report from Mr Garan to Dr Salib dated 3 March 2015 records that the applicant reported that his right knee was “progressing well now.” The applicant was able to cover 4km on foot, intermittently walking and jogging. Mr Garan noted that the applicant had a full range of motion in the knee and that his gait presented as normal. It appears that this report is incorrectly dated and that it was most likely completed on 3 March 2016 due to the difference in the condition of the right knee from the above report of 2 March 2015 as well as a handwritten note in the bottom left-hand corner of the report which records that it was scanned on 3 March 2016. The previous report of 2 March 2015 has a similar handwritten note recording that it was scanned on 5 March 2015. These handwritten notes presumably relate to when the report was scanned onto the insurers claim file.[17]
[17] ARD p. 54.
On 5 May 2015 Dr Rizkallah reported to the respondent that the applicant was still having trouble in relation to his right knee with pain, swelling and dysfunction and that the clinical examination had not changed since 23 March 2015. Dr Rizkallah advised that the applicant had elected to proceed with an adipose derived stem cell therapy procedure, in conjunction with an arthroscopic chondroplasty.[18]
[18] ARD p. 62.
Dr Rizkallah performed the arthroscopic chondroplasty and adipose derived stem cell therapy on 4 July 2015.[19]
[19] ARD p. 64.
On 18 August 2015 the applicant consulted Dr Salib. The clinical record of the consultation records that the applicant had been seen by the orthopaedic surgeon the day before, that the applicant had an antalgic gait, and intermittent right knee pain. Dr Salib also noted that the applicant was still icing his right knee, especially after activities and that he was performing physiotherapy once a week and hydrotherapy twice a week.[20]
[20] ARD pp. 158-159.
On 19 August 2015 Dr Rizkallah reported to the respondent that he had examined the applicant on 17 August 2015 and that the applicant was pleased with the results of the surgery describing a gradual improvement in pain and function. The doctor noted that on examination the applicant demonstrated a normal gait, and that he had an “excellent range of painless motion”.[21]
[21] ARD p. 66.
On 28 September 2015 the applicant consulted Dr Salib. The clinical record of the attendance records that the applicant’s right knee pain was improving with intermittent discomfort/tightness, he had a normal gait, mild right knee swelling and a normal range of motion.[22]
[22] ARD p. 158.

On 1 October 2015 Dr Rizkallah reported to the respondent that the applicant was “extremely pleased with the results of his right knee surgery” denying any pain or disability with return to normal function. The doctor reported that clinical examination demonstrated a normal gait with a full range of painless motion and normal stability.[23]
[23] ARD p. 67.
Mr Chris Musgrave, a physiotherapist with Inbalance Physiotherapy, reported to the respondent on 1 October 2015 that the applicant had presented to physiotherapy for his first hydrotherapy assessment on 4 August 2015, one month after surgery, with noticeable right knee deconditioning and muscle atrophy consistent with his ongoing knee pain, near full range of motion but with some changes in gait pattern with reduced right sided weight bearing and stance time.
Mr Musgrave reported that the applicant had undertaken hydrotherapy aimed at increasing his functional abilities, as well as strength and endurance. Mr Musgrave also outlined the future plan for the applicant which was to start with “some gentle on ground resistance training within the gym.” [24]
[24] ARD p. 68.
On 19 November 2015 the applicant consulted Dr Salib. The clinical record of the consultation records that the applicant’s right knee pain had flared after a “hydrosession” and that he had to rest it.[25]
[25] ARD p. 157.
On 7 December 2015 Dr Rizkallah reported to the respondent that the applicant was very pleased with the results of the knee surgery and denied any major concerns. The doctor noted that clinical examination demonstrated a normal gait as well as “excellent painless range of motion”. Dr Rizkallah also reported that he had discussed with the applicant appropriate ongoing exercises together with the necessary precautions and recommended continuing physiotherapy treatment until discharged.[26]
[26] ARD p. 70.
A Physiotherapy Management Plan dated 7 December 2015[27] records that the treatment plan was for further hydrotherapy and for the applicant to commence low impact strengthening exercises in 2016.
[27] ARD p. 71.
On 8 January 2016 a further Physiotherapy Management Plan was completed in which it was noted that the applicant had progressed from hydrotherapy to exercises in a gym. The applicant was to commence on squats, leg press and hamstring exercises with treadmill warm up/down for progress to running.[28]
[28] ARD p. 73.
On 11 January 2016 the applicant consulted Dr Salib. The clinical record of the consultation records that the applicant had a normal gait, nil swelling of the right knee and a normal range of motion. The clinical record also records that the applicant complained of intermittent right knee discomfort initially when starting walking or after prolonged sitting.[29]
[29] ARD p. 156.
On 8 February 2016 the applicant consulted Dr Salib. The clinical record of the attendance records that the applicant had nil right knee pain and that he had “started some jogging.”[30]
[30] ARD pp. 155-156.
On 7 March 2016 Dean Motte, a physiotherapist with the NSW Police Reconditioning Program, reported that the applicant had joined the program on 23 February 2016 and had made “great early improvements.” Mr Mottee reported that the early treatment goals were set around improving ankle/knee and hip mechanics as well as improving quadriceps/glute and hamstring strength. The goal was to upgrade the applicant to his pre-injury duties.[31]
[31] ARD p. 74.
On 29 March 2016 the applicant attended on Dr Salib. The clinical record of the attendance records that the right knee pain had settled and that the applicant was still attending the police reconditioning program.[32]
[32] ARD p. 155.
The consultation notes of Dr Salib which are in evidence in evidence continue until
28 August 2017 however they contain no mention of either knee after 29 March 2016.
In a series of Certificates of Capacity the applicant was certified as fit for his normal work hours but with a 5kg lifting/carrying capacity, nil capacity to push/pull and standing/bending/twisting squatting as pain tolerated from 20 November 2015 to
[33] ARD pp. 135, 138.
[34] ARD pp. 141, 144.
[35] ARD p. 147.
11 January 2016.[33] From 12 January 2016 to 7 March 2016 the applicant remained certified fit for his normal work hours but with lifting, carrying capacity, standing tolerance, pushing/pulling/bending/twisting/squatting ability all as pain tolerated.[34] On 29 March 2016 the applicant was certified fit for pre-injury duties.[35]
On 21 November 2017 Luke Bowen, an exercise physiologist with Hills Sports Medicine, reported to Dr Salib that the applicant had reported that he was employed by the respondent “some time ago”, that he was able to return to full duties after rehabilitation of his injury, but did not return to general duties. The applicant had then “moved on to plumbing.”[36]
[36] ARD p. 75.
Mr Bowen reported that the applicant’s single leg stance and squats were poor on the right leg, and “VMO” activation and strength upon squeeze test very poor compared to the left leg. Mr Bowen observed that the applicant would benefit from supervised strength and conditioning sessions before transferring to a self-managed gym program.[37]
[37] ARD p. 75.
On 21 December 2017 Luke Bowen, exercise physiologist with Hills Sports Medicine, reported to Dr Salib that the applicant still found that the knee becomes irritated with constant kneeling, bending and standing, but did admit slight improvements in strength, stability and the severity of soreness from work.
Mr Bowen noted that the applicant had attempted some interval running in the “Alter-G” on some occasions however the knee was not stable enough to tolerate the higher ground reaction forces. He could however tolerate fast paced walking. Mr Bowen noted as barriers to return to work continued pain and discomfort with repetitive use/loading of his knee as well as being unable to kneel without the use of pads and unable to run due to instability and lack of strength.[38]
[38] ARD p. 76.
Dr Neil Berry, general surgeon, provided a forensic report to the applicant dated
[39] ARD pp. 78-83.
12 October 2018.[39] Dr Berry records that the applicant left the respondent in 2016 due to psychological problems and returned to his pre-injury occupation of plumber. The applicant reported that he worked in tandem with another plumber who was a friend and who performed the heavier hard jobs whilst the applicant did the easier jobs.
Dr Berry records that the right knee was still painful to the extent that the applicant could not kneel, crouch or run distances.
Dr Berry recorded his examination findings in respect to the right knee which included the range of motion. After recording his examination findings, the doctor noted that there were “no other abnormal findings.” The examination findings do not refer to the presence of a limp and do not refer to any abnormalities of the left knee.

On 27 February 2024 the applicant completed a Recurrence of Injury Form[40] in which he records that his right knee had been intermittently swelling and giving way for about two to three years and that his left knee started on 26 January 2014 whilst away camping. The applicant records that his right knee had never been 100% since the stem cell treatment and that he had been carrying his right knee with his left leg for many years.
[40] Reply p. 13.

On 15 March 2024 Dr Salib completed a response to a questionnaire[41] in which the doctor recorded his opinion that the left knee pain/pathology is “likely secondary” to persistent right knee pain due to overcompensation. The doctor noted that the left knee pain commenced on 26 January 2024.
[41] Reply pp. 15-17.
On 19 March 2024 Dr Salib referred the applicant to Dr Tim Small, orthopaedic surgeon. The referral contains what appears to be a clinical note of Dr Salib from 27 February 2024 which records bilateral knee pain on weight bearing, intermittent right knee pain and swelling for the “last few years” and that the left knee pain “started” on 26 January 2024.[42]
[42] ARD p. 86.
On 4 April 2024 Dr Tim Small reported to Dr Salib that the applicant had suffered since the work injury from generalised right knee symptoms. The pain had been getting progressively worse. The doctor noted that the applicant was also suffering from left knee pain. The doctor observed that the applicant had isolated medial compartment degenerative changes of his left knee and may be a candidate for a valgising procedure to offload the symptomatic medial compartment.[43]
[43] ARD p. 89.
On 11 April 2024 Dr Small reported to Dr Salib, after radiological scans had been performed, that the applicant was a good candidate for a valgising left high tibial osteotomy to offload the symptomatic medial compartment of the left knee.[44]
[44] ARD p. 92.
On 6 June 2024 Dr Lau reported to Dr Salib noting that the applicant’s problems included psoriatic arthritis which the doctor observed was under “very good control with no flareup.” In respect to the applicant’s left knee Dr Lau noted that the applicant had been favouring his left knee over the years and had developed worsening pain in his left knee since January.
In Dr Lau’s opinion there was no evidence of inflammatory arthritis. The doctor observed that the applicant had never had psoriatic arthritis in his left knee. In the opinion of Dr Lau, it is possible that the applicant has accelerated osteoarthritis in the left knee from relying on his left knee over the years.[45]
[45] ARD p. 95.
On 23 September 2024 Dr Small reported to the applicant’s solicitors[46] that the applicant felt that his right knee osteoarthritis had resulted in an altered gait pattern increasing the load on his left knee and accelerating his left knee degenerative changes. In the opinion of Dr Small it is not unreasonable to suggest that the right knee osteoarthritis has accelerated the left knee degenerative changes.
[46] ARD pp. 98-99.
Associate Professor John Ireland, orthopaedic surgeon, provided a forensic medical report to the applicant dated 5 September 2024.[47] Associate Professor Ireland records a history that the applicant’s right knee progressively deteriorated following the injury at work on
[47] ARD pp. 27-36.
17 October 2014 resulting in a substantial limp. The applicant had noticed that his left knee had “gotten progressively worse.” This became most significant following the January long weekend. There was increasing pain, a pronounced limp and swelling in the knee.
The doctor records that prior to joining the Police in 2003, he worked as a plumber and after being discharged from the Police in 2018 returned to that occupation. The doctor noted that due to increasing pain, difficulty squatting and kneeling, the applicant been forced to give up work as a plumber in May 2024.
Associate Professor Ireland diagnosed bilateral osteoarthritis of the knees, right worse than left.
In the opinion of Associate Professor Ireland, due to ongoing issues with the right knee following the work injury, with an altered gait and an increased load on the left knee, the applicant had noticed a significant deterioration of his left knee which became most apparent in 2024.
In the opinion of Associate Professor Ireland the onset of symptoms in the left knee has been contributed to by the accepted injury to the right knee which resulted in him having a significant limp for almost a decade. This in the doctor’s opinion had substantially contributed to the deterioration in the left knee. In Associate Professor Ireland’s opinion the left knee is a consequential injury due to the right knee. In the doctor’s opinion a 10 year period of walking with a pronounced limp would contribute to significant deterioration in the left knee.
Associate Professor Ireland provided a supplementary forensic report to the applicant dated 13 August 2025[48] in which he confirmed his opinion that the left knee is a consequential injury due to the increased load, noting the accepted injury at work and the persistence of a limp for several years.
[48] AALAD pp. 2-4.
The respondent relies on the opinion of Dr Richard Powell. Dr Richard Powell, orthopaedic surgeon, provided a forensic report to the respondent dated 23 April 2024.[49] The doctor incorrectly records that the applicant was employed by the respondent between August 2013 and August 2018 attaining the rank of Senior Constable. The applicant commenced with the respondent in 2003.
[49] Reply pp. 1-5.
The doctor took a history of the work injury to the right knee as well as the treatment which the applicant received. Dr Powell noted that in addition to persisting right knee symptoms, in January 2024 the applicant became aware of similar symptoms involving the left knee without any specific precipitating incident.
Dr Powell noted that the applicant had initially sustained injury to his right knee in or around 1998 whilst playing rugby league.
Dr Powell diagnosed bilateral knee osteoarthritis. In the opinion of Dr Powell, it is likely that the workplace incident resulted in or contributed to the osteoarthritis in the right knee. The doctor noted that the right knee had remained a source of ongoing symptoms since the time of the injury at work. In the doctor’s opinion the applicant’s current symptoms are consistent with the natural history of the underlying disease process.
In the opinion of Dr Powell, the presence of bilateral symmetrical osteoarthritis in a patient the applicant’s age suggests the presence of an underlying constitutional disease process. The applicant had confirmed to Dr Powell that he suffers from psoriatic arthritis which typically affects the hands and feet. In the opinion of Dr Powell, the possibility that a component of the applicant’s knee issue reflects an underlying inflammatory arthropathy needs to be taken into consideration.
In the opinion of Dr Powell, the applicant’s employment as a plumber which involves prolonged periods of kneeling and occasional squatting whilst he works in awkward and confined spaces is also likely to result in aggravation of the underlying disease process involving the knees.
Dr Powell suspects that the left knee condition is more likely to represent part of an underlying degenerative disease process involving the knees rather than being consequential to the accepted right knee injury from 2014.
In the opinion of Dr Powell, the right knee injury is multifactorial taking into account contribution from the pre-existing injury in 1998, contribution from the accepted work-related injury involving the right knee in 2014 and most likely an underlying constitutional disease process which has resulted in similar pathology involving the left knee.
Dr Powell provided a supplementary forensic report to the respondent dated 11 July 2025[50] confirmed his that the applicant is suffering from advanced degenerative disease process involving the right knee which is multifactorial, taking into account contribution from previous traumatic injury, a likely underlying constitutional disease process, and contribution from the nature and conditions of employment both as a plumber (pre and post his employment with the respondent) and as a police officer. Liability was accepted for a contribution to the degenerative disease process involving the right knee from the nature and conditions of his employment with NSW Police Force. As such, his ongoing issues relating to the further degeneration of the disease process involving the right knee will be in part attributable to the accepted injury sustained in the course of his employment.
[50] RALAD pp. 2-5.
In the opinion of Dr Powell, the fact that the applicant had developed a varus deformity in his left knee similar to that in the right knee without having sustained injury to the left knee as had been sustained to the right knee playing recreational football is highly suggestive of the underlying pathology being a primary osteoarthritic process. In making this observation the doctor noted that the applicant had been diagnosed with psoriasis, although the doctor also noted that it is not clear whether there has been any further contribution from this.
Dr Powell does not accept that altered gait has contributed to the degenerative disease process involving the left knee. In the opinion of Dr Powell this is not supported by the current literature. In the opinion of Dr Powell, the altered biomechanics related to disruption of gait are insufficient to cause significant structural pathology in the contralateral lower limb and does not explain the development of varus malalignment, particularly when it is bilateral.
Thus, in consideration of all these factors, Dr Powell does not believe there is sufficient evidence to conclude that employment, either directly or consequentially, represents a substantial contributing factor to either the development or permanent aggravation of the advanced degenerative disease process involving the left knee. In the opinion of Dr Powell the left knee pathology, accompanying symptoms and functional limitation all reflect the natural history of the underlying disease process and are not related to the applicant’s employment either directly or consequentially.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

The applicant alleges that as a result of the accepted injury to his right knee he walked with an altered gait which has caused a consequential condition of the left knee.
To establish a consequential condition of the left knee the applicant is not required to prove an injury within the meaning of s 4 of the 1987 Act.[51] The question is whether there has been a material contribution to the condition of the left knee as a result of the accepted right knee injury.
[51] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan); Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
Causation is determined on the facts in each case through a commonsense evaluation of the causal chain.[52] The applicant bears the onus of proving the alleged consequential left knee condition on the balance of probabilities. To be satisfied on the balance of probabilities of the existence of a fact, I must feel an actual persuasion of the existence of that fact.[53]
[52] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
[53] Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
The applicant’s case in respect to consequential injury to the left knee relies on the applicant compensating for the accepted injury to his right knee by placing increased load on his left knee as a result of limping.
It is the applicant’s evidence that the surgery on 4 July 2015 reduced but did not completely cure the direct pain which he had endured prior to the operation. That following the surgery he had continuing pain, swelling and very limited flexibility of his right knee. It is the applicant’s evidence that the pain and swelling caused him to adjust his gait and that he developed a limp which would get “worse” as the day progressed depending on his activity.
Mr Tanner submitted on behalf of the applicant, that the applicant’s evidence that he suffered from a limp is not challenged.
The respondent submits that the applicant had a good result from the surgery on
4 July 2015. In support of its submission the respondent directed attention to the contemporaneous clinical reports of the applicant’s treating surgeon Dr Rizkallah.
Whilst it is true that there is no statement evidence from a witness which challenges the applicant’s evidence that he limped following the surgery on 4 July 2015, evidence can be challenged by other means such as by the use of contemporaneous documents.
The evidence supports that following the accepted injury at work on 17 October 2014 the right knee remained symptomatic and never recovered to its pre-injury level of function. Whilst Dr Salib did record that the applicant’s gait and range of motion was normal and that there was no swelling or tenderness of the right knee on 10 November 2014 the treating orthopaedic surgeon, Dr Rizkallah, reported on 19 November 2014 that the applicant presented with right knee pain, clicking, swelling as well as a slight limp.
Following arthroscopic surgery on 29 January 2015 the right knee remained symptomatic with Dr Lau recording on 24 February 2015 that the right knee was still swollen. Mr Garan reported on 2 March 2015 that the right knee had been “quite swollen” and that there was a reduced range of motion. Whilst Mr Garan did note that the applicant’s gait had started to improve the applicant had reported that he had developed sharp knee pain that would grab/catch when stepping off to walk. On 27 March 2015 Dr Rizkallah reported that the applicant was still having problems with his right knee with constant swelling and dysfunction as well as an obvious limp.
The right knee continued to be symptomatic with Dr Rizkallah reporting on 5 May 2015 that the applicant was still having trouble in relation to his right knee with pain, swelling and dysfunction and that the clinical examination had not changed since 23 March 2015.
The right knee having continued to be symptomatic following the arthroscopic surgery on
29 January 2015, Dr Rizkallah performed the arthroscopic chondroplasty and adipose derived stem cell therapy on 4 July 2015.
Contrary to the applicant’s evidence the contemporaneous medical records and reports support that the applicant’s right knee condition significantly improved following the surgery on 4 July 2015.
On 4 August 2015, one month after the surgery, Mr Musgrave assessed the applicant for hydrotherapy for the first time. At that time the applicant presented with noticeable right knee deconditioning and muscle atrophy consistent with ongoing knee pain. Whilst Mr Musgrave noted some changes in gait pattern with reduced right sided weight bearing and stance time, he also observed a near full range of motion of the right knee.
Approximately six weeks after the surgical procedure Dr Rizkallah examined the applicant on 17 August 2015 and reported to the respondent on 19 August 2015 that the applicant was pleased with the results of the surgery describing a gradual improvement in pain and function. The doctor noted on examination that the applicant demonstrated a normal gait, and that he had an “excellent range of painless motion”.
On 18 August 2015 Dr Salib, unlike Dr Rizkallah, did note an antalgic gait as well as intermittent right knee pain. Dr Salib also noted that the applicant was still icing his right knee, especially after activities and that he was performing physiotherapy once a week and hydrotherapy twice a week. However, on 28 September 2015 Dr Salib recorded that the right knee pain was improving with intermittent discomfort/tightness, mild swelling and significantly a normal range of motion and normal gait.
On 1 October 2015 Dr Rizkallah reported that the applicant was “extremely pleased with the results of his right knee surgery” denying any pain or disability with return to normal function. The doctor reported that clinical examination demonstrated a normal gait with a full range of painless motion and normal stability.
The treatment of the applicant’s right knee continued with Mr Musgrave reporting on
1 October 2015 that the applicant had undertaken hydrotherapy aimed at increasing his functional abilities, as well as strength and endurance. Mr Musgrave at that time outlined the future plan for the applicant which was to start with “some gentle on ground resistance training within the gym.”
In November 2015 the applicant did suffer a flare of his right knee pain after a “hydrosession” as noted by Dr Salib on 19 November 2015.
On 7 December 2015 Dr Rizkallah again reported that the applicant was very pleased with the results of the knee surgery and that the applicant denied any major concerns. The doctor noted that the applicant demonstrated a normal gait as well as “excellent painless range of motion”.
The applicant’s treatment continued with a Physiotherapy Management Plan dated
7 December 2015 recording that there was a treatment plan for further hydrotherapy and for the commencement of low impact strengthening exercises in 2016. A further Physiotherapy Management Plan completed on 8 January 2016 records that the applicant had progressed from hydrotherapy to exercises in a gym and that the applicant was to commence on squats, leg press and hamstring exercises with treadmill warm up/down for progress to running.
On 11 January 2016 Dr Salib again recorded that the applicant had a normal gait as well as recording nil swelling of the right knee and a normal range of motion. Dr Salib however also record that the applicant complained of intermittent right knee discomfort initially when starting walking or after prolonged sitting.
On 8 February 2016 Dr Salib noted nil right knee pain and that the applicant had “started some jogging.”
In a report from Mr Garan to Dr Salib dated 3 March 2015, but which appears to have in fact been produced on 3 March 2016, the applicant reported that his right knee was “progressing well now.” The applicant was able to cover 4km on foot, intermittently walking and jogging. Mr Garan noted that the applicant had a full range of motion in the knee and that his gait presented as normal.
On 7 March 2016 Dean Motte, a physiotherapist with the NSW Police Reconditioning Program, reported that the applicant had joined the program on 23 February 2016 and had made “great early improvements.” Mr Mottee reported that the early treatment goals were set around improving ankle/knee and hip mechanics as well as improving quadriceps/glute and hamstring strength. The goal was to upgrade the applicant to his pre-injury duties.
On 29 March 2016 the applicant attended on Dr Salib. The clinical record of the attendance records that the right knee pain had settled and that the applicant was still attending the police reconditioning program.
On 29 March 2016 the applicant was certified fit for pre-injury duties.
The contemporaneous clinical evidence shows that following the surgery on 4 July 2015 and with further physical therapy and exercise the condition of the right knee improved and by
29 March 2016 the applicant had been certified fit for pre-injury duties. The contemporaneous medical evidence supports, contrary to the applicant’s evidence, that following the surgery on 4 July 2015 the applicant gained a full range of motion of the right knee, ceased to limp and the knee became relatively pain free. However, the right knee had not returned to its pre-injury condition and as of 4 July 2015 the applicant was continuing to receive treatment.
Following 29 March 2016 there is no mention of the applicant limping in the contemporaneous medical records prior to 2024. However the contemporaneous clinical records become patchy after 29 July 2016.
The consultation notes of the applicant’s GP, Dr Salib, which are in evidence continue until 28 August 2017 and record no mention of either knee after 29 March 2016.
Mr Bowen did report on 21 November 2017 that the applicant’s single leg stance and squats were poor on the right leg, and that “VMO” activation and strength upon squeeze test was very poor compared to the left leg. Mr Bowen observed at that time that the applicant would benefit from supervised strength and conditioning sessions before transferring to a self-managed gym program.

On 21 December 2017 Mr Bowen reported that the applicant still found that the right knee became irritated with constant kneeling, bending and standing, but admitted slight improvements in strength, stability and the severity of soreness from work. Mr Bowen also noted that the applicant had attempted some interval running in the “Alter-G” (anti-gravity treadmill) on some occasions however the knee was not stable enough to tolerate the higher ground reaction forces. He could however tolerate fast paced walking. Mr Bowen noted as barriers to return to work continued pain and discomfort with repetitive use/loading of his knee as well as being unable to kneel without the use of pads and unable to run due to instability and lack of strength.
Whilst the reports of Mr Bowen indicate that the applicant’s right knee continued to be symptomatic and that strength and conditioning of the right knee was an issue Mr Bowen does not record that the applicant was limping but rather that he was able to tolerate fast paced walking. The applicant’s inability to run on the anti-gravity treadmill is not attributed to knee pain and/or a limp but rather to instability and lack of strength.
Dr Neil Berry, general surgeon, provided a forensic report to the applicant dated
12 October 2018. Dr Berry recorded that the right knee was “still painful to the extent that he could not kneel or crouch and that he was unable to run distances.”
Dr Berry recorded his examination findings in respect to the right knee which included the range of motion. After recording his examination findings, the doctor noted that there were “no other abnormal findings.” The examination findings do not refer to the presence of a limp and do not refer to any abnormalities of the left knee.
Mr Tanner submitted on behalf of the applicant that the report of Dr Berry supports that the applicant was limping. In my view the report does not support that conclusion. Dr Berry records that the knee was still painful to the extent that the applicant could not kneel or crouch and that he was unable to run distances. Whilst the doctor reported that the applicant could not run distances he did not record either that the applicant had a limp or that there was any limitation on his ability to walk. The doctor also specifically stated when reporting his examination findings that there were no other abnormalities.
Following the report of Dr Berry there is then a lacuna in the evidence. There are no contemporaneous clinical records or reports after the report of Dr Berry until 2024. There is also no statement evidence from the applicant as to what occurred in respect to his knees during this time it being the applicant’s evidence that between about 2015 to about 2024, he experienced intermittent pain and swelling of his right knee from all types of activity, even from just walking on a daily basis and that as his right knee gave him pain and swelled without aggravation and that he developed a limp when he walked to avoid putting weight on it.
Whilst the applicant may have limped on occasions when the knee was particularly aggravated the contemporaneous medical records do not support that the applicant had a persistent limp from about October 2015 to October 2018.
It is the applicant’s evidence that on or about 26 January 2024, he started to experience constant left knee pain, initially whilst walking around the caravan park whilst on holidays but continued even whilst he was seated. Over the next few days, he was forced to sit as a result of the pain and minor swelling to his left knee area which increased and continued over the next few days.
On 27 February 2024 the applicant completed a Recurrence of Injury Form in which he records that his right knee had been intermittently swelling and giving way for about two to three years and that his left knee started on 26 January 2014 whilst away camping. The applicant records that his right knee had never been 100% since the stem cell treatment and that he had been carrying his right knee with his left leg for many years.
There are in evidence no medical records referring to any left knee symptoms prior to
26 January 2024.
Unfortunately, there are in evidence no clinical records from Dr Salib after 2017. There is however in evidence the referral from Dr Salib to Dr Tim Small dated 19 March 2024 which contains what appears to be a clinical note of Dr Salib from 27 February 2024 which records bilateral knee pain on weight bearing, “intermittent” right knee pain and swelling for the “last few years” and that the left knee pain “started” on 26 January 2024.
Dr Salib did on 15 March 2024 completed a response to a questionnaire in which the doctor recorded his opinion that the left knee pain/pathology is “likely secondary” to the persistent right knee pain due to overcompensation. The doctor also noted that the left knee pain had commenced on 26 January 2024.
On 4 April 2024 Dr Small reported to Dr Salib that the applicant had suffered since the work injury from generalised right knee symptoms and that pain had been getting progressively worse. The doctor also reported that the applicant was suffering from left knee pain.
On 6 June 2024 Dr Lau reported that the applicant had been favouring his left knee over the years and had developed worsening pain in his left knee since January. In the opinion of Dr Lau, it is possible that the applicant has accelerated osteoarthritis in the left knee from relying on his left knee over the years.
On 23 September 2024 Dr Small reported to the applicant’s solicitors that the applicant felt that his right knee osteoarthritis had resulted in an altered gait pattern increasing the load on his left knee and accelerating his left knee degenerative changes. In the opinion of Dr Small it is not unreasonable to suggest that the right knee osteoarthritis has accelerated the left knee degenerative changes.

I accept the respondent’s submission that the applicant had a good recovery following the surgery on 4 July 2015. I do not accept that the applicant has been limping persistently since 2015. The contemporaneous medical evidence supports that the applicant did not have a persistent limp from about October 2015 until at least October 2018.
However, the evidence also supports that the right knee never fully recovered and remained both symptomatic and functionally compromised despite significant and protracted rehabilitation.
Whilst there is a lack of contemporaneous medical evidence after Dr Berry’s report of
12 October 2018 until the applicant commences to complain of left knee symptoms in January 2024. The evidence also supports that when the applicant commences to complain in respect to his left knee, the right knee is the more symptomatic of his knees. On
4 April 2024 Dr Small recorded that the applicant presented with bilateral knee pain however his right knee was worse than his left. This indicates that further significant deterioration had occurred since the applicant had been examined by Dr Berry. The right knee had deteriorated to the point that a total right knee replacement was being considered. At this point the applicant was limping and whilst both knees at this point may have been contributing to any limp the right knee was the worse of the two.
This is consistent with the history which the applicant records on 27 February 2024 in the Recurrence of Injury Form that his right knee had never been 100% since the stem cell treatment and that he had been carrying his right knee with his left leg for many years. It is also consistent with the clinical note of Dr Salib from 27 February 2024 of “intermittent” right knee pain and swelling for the “last few years”.
Whilst I do not accept that the applicant had a persistent limp prior to October 2018 I do accept and find that the applicant did develop a limp after October 2018.
I prefer the opinion of Associate Professor Ireland to that of Dr Powell.
Associate Professor Ireland like Dr Small and Dr Powell diagnosed bilateral osteoarthritis of the knees, right worse than left.
In the opinion of Associate Professor Ireland the left knee is a consequential injury due to the increased load, noting the accepted injury at work and the persistence of a limp for several years. Whilst I accept that Associate Professor Ireland’s opinion is negatively impacted by the fact that the doctor appears to rely on a history of the applicant limping for about a decade the opinion of Associate Professor Ireland is supported by Dr Salib, Dr Lau and Dr Small.
Dr Salib is of the opinion that the left knee pain/pathology is “likely secondary” to the persistent right knee pain due to overcompensation. Dr Lau is of the opinion that it is possible that the applicant has accelerated osteoarthritis in the left knee from relying on his left knee over the years and Dr Small is of the opinion that it is not unreasonable to suggest that the right knee osteoarthritis has accelerated the left knee degenerative changes.
In the opinion of Dr Powell, the presence of bilateral symmetrical osteoarthritis in a patient the applicant’s age suggests the presence of an underlying constitutional disease process.
The applicant may, and probably does, have an underlying constitutional disease process affecting the left knee. However, the presence of an underlying constitutional disease process does not mean that the applicant has not suffered a consequential condition. Dr Powell does not dispute that the right knee condition has been contributed to by the injury at work. The test is whether the injury to the right knee has materially contributed to the left knee condition. For there to be a material contribution it is not necessary for there to be pathological change, an increase in symptomatology is sufficient. In contrast Associate Professor Ireland is not of the opinion that the right knee injury has caused the left knee condition but rather that it has contributed to it.
Whilst Dr Powell raises the possibility that there is an underlying inflammatory arthropathy there is no evidence of this and Dr Lau, the applicant’s treating rheumatologist, has expressly reported that the applicant’s knees have not been affected by his psoriatic arthritis which is well controlled.
In the opinion of Dr Powell, the applicant’s employment as a plumber is also likely to result in aggravation of the underlying disease process involving the knees. This may or may not be the case. It is irrelevant, as the question is whether the right knee condition has materially contributed to the left knee condition. The fact that there may be other material contributors to the left knee condition is irrelevant.
Dr Powell does not accept that altered gait has contributed to the degenerative disease process involving the left knee. In the opinion of Dr Powell this is not supported by the current literature. In the opinion of Dr Powell, the altered biomechanics related to disruption of gait are insufficient to cause significant structural pathology in the contralateral lower limb and does not explain the development of varus malalignment, particularly when it is bilateral.
As previously discussed for there to be a consequential condition an increase in symptomatology is sufficient. An actual structural or pathological change is not required as a matter of law.
For the above reasons I find that the applicant has sustained a consequential condition of the left knee as a result of the accepted right knee injury.

Conclusion

As I have found that the applicant has sustained a consequential condition of the left knee and as there is no dispute that the left knee-high tibial osteotomy surgery was reasonably necessary treatment, there will be an order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act including the costs of and associated with the left knee-high tibial osteotomy surgery.
There will also be an order that the respondent pay the applicant’s costs.

[2025] NSWPIC 530

8 October 2025