Jones v Interline Bus Services No 23 Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Interline Bus Services No 23 Pty Ltd [2023] NSWPIC 658
APPLICANT:	Wade Jones
RESPONDENT:	Interline Bus Services No 23 Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	8 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses, including costs of right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis; and L5/S1 diagnostic blocks; applicant claimed to have sustained consequential conditions of his right shoulder, lumbar spine, right foot, and right ankle, as a result of accepted injury to his left knee; respondent disputed that the applicant had sustained any consequential conditions; that the proposed or any medical treatment was reasonably necessary; and maintained that the applicant had recovered from the injury to his left knee, such that he had no incapacity for work; consideration of Kumar v Royal Comfort Bedding Pty Ltd, Diab v NRMA Ltd, and Kooragang Cement Pty Ltd v Bates; Held – applicant sustained consequential conditions of his right shoulder, lumbar spine, right foot, and right ankle as a result of injury to his left knee; the proposed medical treatment is reasonably necessary as a result of injury; the applicant has no capacity for work; award for the applicant for ongoing weekly benefits pursuant to section 37; award for the applicant for medical expenses pursuant to section 60 including the right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis, and L5/S1 diagnostic blocks.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant for the claim for consequential conditions of the right shoulder, lumbar spine, right foot, and right ankle. 2. There is an award for the applicant of weekly benefits from 10 July 2023 to date and continuing, at the rate of $1,346.69 per week, pursuant to s 37 of the Workers Compensation Act 1987. 3. There is an award for the applicant, pursuant to s 60 of the Workers Compensation Act 1987, including the costs of and associated with right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis; and the costs of and associated with L5/S1 diagnostic blocks.

STATEMENT OF REASONS

BACKGROUND

The applicant, Wade Jones (Mr Jones) was employed by the respondent, Interline Bus Services No 23 Pty Ltd (Interline), as a yard person.
Mr Jones sustained an injury to his left knee in a fall on 21 October 2022. He also claims to have injured his right shoulder on or about 3 March 2023, when he attempted to break a fall, and to have injured his right foot and right ankle as a result of a fall in about March 2023. He finally claims to have sustained a consequential condition of his lumbar spine as a result of altered gait/overcompensation.
On 1 March 2023, the respondent’s insurer, Insurance & Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Whilst the nature of the dispute is difficult to discern from the notice, and it erroneously referred to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act) it appeared to dispute that the applicant had sustained a consequential condition of his right shoulder. ICare disputed that the applicant was entitled to medical treatment for his right shoulder.
The applicant apparently requested a review of the decision on 6 March 2023, although the request is not in evidence.
On 20 March 2023, iCare issued the applicant with a review decision. The decision was maintained pursuant to ss 4 and 9A [sic] of the 1987 Act, “on the basis that your shoulder injury was not as a result of the accept [sic] knee injury”. The dispute notice was amended to dispute that the applicant had an incapacity for work and was entitled to weekly payments.
On 15 June 2023, EML issued the applicant with a dispute notice. Once again, the notice was confusing and erroneously referred to ss 4 and 9A of the 1987 Act. However, it appeared that EML intended to dispute that the applicant had sustained injury to [sic: consequential condition of] his right ankle, lumbar spine, or right shoulder. It also maintained that the injury to his left knee had resolved.
EML disputed liability for medical treatment, including right shoulder surgery, and ongoing weekly compensation.
EML apparently issued a further notice dated 4 July 2023. It is not in evidence but is referred to in the notice dated 9 August 2023.
By letter dated 26 July 2023, the applicant’s solicitors apparently requested on his behalf a review of the decision, although the request is not in evidence.
On 9 August 2023, EML issued the applicant with a review notice. It stated that, by notice dated 4 July 2023, the dispute that he had sustained a frank injury to his right shoulder, lumbar spine, and right ankle was withdrawn, as “the evidence did not support that these conditions were being plead as a frank injury at first instance.”
EML disputed liability for the claimed consequential conditions of the applicant’s right shoulder, lumbar spine, and right ankle. It disputed ongoing liability for his left knee injury. It therefore disputed that he was entitled to weekly payments or medical expenses.
The applicant lodged an Application to Resolve a Dispute (the Application) on
25 August 2023.
The applicant claimed that he sustained injury to his left knee when he fell on
20 [sic] October 2022. On or around 3 March 2023, he experienced a fall and injured his right shoulder as he attempted to break his fall. On another date in around March 2023, he suffered a fall and injury to his right foot and ankle. He also developed a lumbar spine injury due to altered gait/overcompensation. The applicant also claimed that his injury was an aggravation, acceleration, exacerbation or deterioration of a disease, with the deemed date of injury of 20 [sic] October 2022.
The applicant claimed weekly benefits, pursuant to s 37 of the 1987 Act, from 10 July 2023 to date and continuing. He also claimed, pursuant to s 60 of the 1987 Act, the amount of $7,132.85, being the costs of and associated with right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis; and costs of and associated with L5/S1 diagnostic blocks.
The respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 19 September 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained a consequential condition of his right shoulder, lumbar spine, or right foot and ankle as a result of the injury to his left knee;
(b)    whether the effects of the injury to the applicant’s left knee have resolved, so that he no longer has an incapacity for work or the necessity for medical treatment, and
(c)    whether the proposed medical treatment is reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for preliminary conference on 25 September 2023. Mr Ferraro appeared for the applicant, who was present. Mr Patterson appeared for the respondent.
Ms Chung of EML also attended.
The parties had not agreed on the applicant’s pre-injury average weekly earnings (PIAWE).
The respondent was directed to lodge and serve a wages schedule on or before
10 October 2023, should it disagree with the applicant’s claimed PIAWE.
The matter was listed for conciliation/arbitration hearing, in person, on 2 November 2023.
Mr Ty Hickey of counsel, instructed by Mr Ferraro, appeared for the applicant, who was present, together with his mother, Ms Jones, as support person. Mr Gaitanis of counsel, instructed by Mr Patterson, appeared for the respondent. Mr Leonard of EML also attended.
The Application was amended to delete the date of injury of “20 October 2022” wherever it appeared and insert “21 October 2022”; and claim a general order for medical expenses, pursuant to s 60 of the 1987 Act.
The parties agreed that the applicant’s PIAWE were $1,683.36 per week.
The applicant was directed to lodge and serve, on or before 9 November 2023, an Application to Admit Late Documents attaching a certificate of capacity (COC) dated 28 April 2023, on which he sought to rely, and to the admission of which the respondent did not object.
The applicant complied with the direction.
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 and attached documents;
(b)    Application to Admit Late Documents dated 19 September 2023 and attached documents (Reply), lodged by the respondent;
(c)    Application to Admit Late Documents dated 19 September 2023 and attached documents, lodged by the applicant;
(d)    Application to Admit Late Documents dated 30 October 2023 and attached documents, lodged by the applicant, and
(e)    Application to Admit Late Documents dated 3 November 2023 and attachment, lodged by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Wade Jones

Mr Jones’ first statement is dated 3 July 2023. Where he has referred to the date of injury as 20 October 2022, I have amended it in accordance with the amended Application.
He began working at Interline in approximately 2018. His role involved moving buses around the yard, fuelling them, and making sure they were ready for the drivers.
On 21 October 2022, he started his shift at 3:30am and it was dark.
He went around to the back of an electric bus. He had access to the rear of the bus to disconnect it from the charging station.
A contractor had left a pile of offcuts of bricks behind the bus. This caused him to trip, landing heavily on his left knee.
He went back to the office and was told to have a rest. He “hung around” until approximately 6:30am. He informed the controller, Brad Kelly. He went home at approximately 7:30am.
He was initially hopeful that the injury would get better. However, it did not, and he saw
Dr David Huynh at the Eagle Vale Medical Centre (Eagle Vale). A workers compensation claim was initiated.
Initially he only had pain in his left knee. He was limping and in constant pain.
On or around 3 March 2023, his left knee gave way, causing him to suffer injury to his right shoulder as he attempted to break his fall.
He opened the back gate for his nephews and niece, who had walked home from school. His knee gave way. He attempted to break his fall but then he was “on the floor” and injured his right shoulder. The pain was unbearable. He still suffered ongoing pain.
On another date, his left knee gave way, causing him to suffer injury to his right foot. This incident was extremely similar. He was getting out of his car when his left knee gave way.
He had an ultrasound and X-ray of his right foot, which showed only bruising, rather than an injury.
He also had an injury to his back. He did not feel pain in his back at the time of the fall. He thought it more likely that the back injury had come about from overcompensation. Due to overcompensating on one knee, over time he experienced more pain in his back. There was no specific incident that resulted in his back pain. This had been gradual.
On 8 February 2002, he fell out of a palm tree. He was up a ladder chopping the trees. He suffered an injury to his back and was on workers compensation for approximately two years.
He had a nucleoplasty at Bankstown-Lidcombe Hospital, after which he went back to work and did not experience any pain in his back or have any issues at work.
He had been unable to return to work since 21 October 2022. There was “no possibility” of him returning, due to long distances of walking. Interline’s yard was 500m in distance, and they would go back and forth each day.
He did not have computer skills, which also prevented him from attaining another job.
He no longer saw Dr Huynh, as he did not practice at Eagle Vale. He had seen Dr Robert Ng at Eagle Vale; Dr Jonathan Herald; Mr Kendrick Law; Dr Anil Nair; and Dr Hugh Choong.
Mr Jones made a second statement, dated 13 September 2023.
On or around 2 February 2023, his left knee gave way, causing injury to his right shoulder as he attempted to break his fall. He had previously stated the date was March. However, he believed this occurred in February, as he reported to his doctors soon after.
The applicant has also placed in evidence photographs of his foot/ankle, which appear to show bruising, but are undated.

Medical evidence

Eagle Vale Medical Centre (Eagle Vale)

The records are extensive, and it is not my intention to refer to every entry.
On 11 December 2006, Dr Thu Dung Dang recorded that the applicant presented with lower back [pain]. He was numb in the middle of the back, worse with bending. He had fallen from a palm tree in 2002, when he had back pain and paraesthesia in the lower limbs. That had resolved, but slight pain persisted. The applicant had had aching pains in the legs since yesterday. The pain was worse three days ago.
On 18 December 2006, Dr Dang recorded that the applicant has presented with persistent lower back pain and worsening symptoms.
On 20 January 2007, Dr Julia Trinh recorded that low back pain was discussed. WorkCover had been finalised, with the applicant on permanently modified duties. His back had flared up again last month. He needed to see a physiotherapist but could not afford it. He would contact a lawyer and see if he could get WorkCover again.
Dr Trinh also recorded that the applicant had fallen on a boat and injured both knees. He had X-rays at Bankstown. “NAD” (no abnormality detected). She noted “? ACL (anterior cruciate ligament) injury to be excluded” and X-ray and ultrasound of the right knee were requested.
On 9 February 2007, Dr Trinh recorded that the applicant’s knee felt a bit better. He had not yet had the ultrasound, as they were not bulk billed in Campbelltown.
On 27 April 2009, Dr Huynh recorded that the applicant had had right shoulder pain six months ago. It had settled, but in the last two months he had increasing pain, especially at the end of his shift, and when lying on that side. It was better when he was off work.
On 8 May 2009, Dr Huynh recorded worsening right shoulder pain, and “rotator cuff injury?”
On 8 September 2009, Dr Thuy VI Truong recorded that the applicant still had some pain in his right shoulder “not work related”. It was tolerable, better with Deep Heat. He was advised to watch it for now and be reviewed if it worsened.
On 21 January 2011, Dr Truong recorded that the applicant had pain in his right shoulder and neck. There was no injury. It was worse with turning the wheel when driving a bus. He was referred for ultrasound and X-ray of his right shoulder.
On 25 July 2012, Dr Ng recorded that the applicant was doing gyprocking. He had a sore neck and shoulder and was tender over the lower neck over the C6 area and right trapezius. He was prescribed NSAIDS (non-steroidal anti-inflammatory drugs), heat and Panadol osteo and was to be reviewed “Friday”.
On 25 October 2022, Dr Huynh recorded that the applicant had tripped over a stack of bricks on Friday morning at 3:30am. He fell over on his left knee. There was medial knee pain, bruising and joint swelling. The applicant had since struggled with walking.
On 31 October 2022, Dr Huynh recorded that the applicant’s left knee pain was not improving, there was instability, it gave way on walking, and “no support”.
On 1 November 2022, Dr Huynh again recorded that the applicant’s left knee pain was not improving. He was referred for MRI scan.
On 8 November 2022, Dr Huynh recorded that the applicant was still unable to weight bear well. The MRI showed low grade sprain type of injury only.
On 16 November 2022, Dr Huynh recorded that on Monday the applicant got out of a car, his left knee gave way, and he fell. He was still limping. He was to wear a knee brace and continue physiotherapy.
On 1 December 2022, Dr Huynh recorded that the applicant had had another fall, “knee gave way again”. He had an antalgic walk. There was some knee pain after physiotherapy.
On 20 December 2022, Dr Huynh recorded that the applicant was still limping. He had had a CT scan of his knee - “NAD”- and was awaiting a second MRI scan. Dr Herald was to review him tomorrow.
On 12 January 2023, Dr Huynh recorded that the applicant was stable. He was having physiotherapy three times a week and still limping. Dr Huynh noted “partial tear meniscus. MCL (medial collateral ligament)”.
On 30 January 2023, Dr Huynh recorded that the applicant was still limping. There was exacerbation of low back pain. His left knee pain and instability were unchanged.
On 25 February 2023, Dr Benson Trinh recorded that the applicant had recently seen
Dr Herald. He noted “? torn rotator cuff in shoulder”.
On 3 March 2023, Dr Huynh recorded right shoulder pain. There is a record of a case conference with “Brendan” [sic: Brandon Buckingham-Jones, Actevate Pty Ltd rehabilitation consultant] – “left knee gave way again, lost balance, twisted right ankle, bruised medial ankle.”
On examination, Dr Huynh found tenderness and mild swelling at the anteromedial ankle. He recorded that pain may be related to low back pathology with radiculopathy. He requested right ankle X-ray and ultrasound.
On 3 April 2023, Dr Robert Ng recorded that Dr Nair thought the applicant had lumbar radiculopathy. Dr Herald “> physio, then imaging back. Not conclusive.” Dr Nair “> nerve conduction study.” An L5/S1 diagnostic block had been recommended but the applicant was still waiting for approval.
Dr Ng recorded “issue re: compensable, right now just the left knee”. He recorded that on “3/2/23” the applicant told Brandon that his right shoulder was still sore. He said it was sore, when his knee collapsed, he put [out] his right upper limb to break the fall. Since then, it was getting worse. He had had four falls since the original. “He told Brandon about them.”
Dr Ng recorded that the applicant had told Brandon on 2 February 2023, and Brandon told
Dr Herald on 3 February 2023. On 25 February, he told Dr Trinh “and the fourth one he hurt his right foot badly bruised and he has a photo of it”. The X-ray and ultrasound were OK.
On 5 April 2023, Dr Ng recorded that ultrasound showed a large partial thickness tear of the subscapularis tendon, large full thickness partial width tear of the supraspinatus, and mild subdeltoid bursitis. The X-ray was OK.
On 28 April 2023, Dr Ng recorded that the applicant was seeing Dr Herald. The pain in his left knee was bad. His right shoulder had worsened since the fall.
On 26 May 2023, Dr Ng recorded a consultation with Brendan [sic] from Actevate. The applicant’s right shoulder was getting worse. The insurer had declined liability for the shoulder and back. Dr Herald was to write a letter to relate the applicant’s injuries to his knee injury.

Dr Jonathan Herald – orthopaedic surgeon

Dr Herald reported first to Dr Huynh on 14 December 2022.
Dr Herald recorded a history of the fall on 21 October 2022. The applicant had landed heavily on his knee and felt anterior knee pain. Since then, he had had trouble walking. He had been doing physiotherapy and needed a knee brace just to keep himself up. Without the brace, his knee had collapsed a few times and he had had secondary injuries. He had a lot of weakness in his knee.

Dr Herald noted that the applicant’s MRI and CT scans were unremarkable. His impression was that the applicant had chondromalacia patella.
Dr Herald was uncertain as to the exact cause of the applicant’s pain, but suggested the MRI scans may not be as clear as ones done on a 3 Tesla scanner. He referred the applicant for a higher-quality MRI. In the meantime, he recommended physiotherapy and weaning off the knee brace, if possible. If nothing was seen on the knee MRI, they may need to consider a scan of the back or a brain scan.
On 21 December 2022, Dr Herald reported that the applicant was progressing well. He had a 0 -120 degree range of motion and his patella seemed to be improving. On examination, he had patellar tenderness and tenderness over his hamstring.
Dr Herald explained to the applicant that MRI scans showed a partial thickness healing MPFL (medial patellofemoral ligament) tear and an MCL tear with a partial medial meniscal tear. All seemed to be healing and were quite small in nature. Dr Herald recommended continuing conservative treatment.
Dr Herald was to see the applicant in a month, when he would “hopefully” upgrade to full pre-injury duties. In the meantime, he had recommended a strengthening programme to try and help the applicant’s knee range of motion and strength.
On 3 February 2023, Dr Herald reported that the applicant continued to have back pain. His knee had collapsed a few times. He had radiculopathic symptoms down his left leg. He said he had had back pain from an injury 40 [sic] years ago, but it seemed to have been aggravated by his knee problem. He had a history of a fall. He had injured his right shoulder.
Dr Herald opined that a lot of the applicant’s weakness seemed to be related to his quadriceps muscle atrophy. He had recommended MRI scan of his back, as he was concerned he may have radiculopathic symptoms.
Dr Herald would see the applicant with the results of the MRI. If “everything is good, we will be able to upgrade him to a gym programme”. If not, they may have to consider a cortisone injection to his back.
On 24 February 2023, Dr Herald reported that the applicant continued to have left knee pain. His right shoulder was not getting better.
Dr Herald had explained to the applicant that his right shoulder seemed to have features of a full-thickness rotator cuff tear, and he had been referred for X-ray and MRI scan. He had quadriceps weakness in his left knee. MRI scans of his back showed an L5/S1 annular tear and T12 fracture. Dr Herald was uncertain as to what was new or old.
Dr Herald had suggested nerve conduction studies to check whether there was any nerve-related problem of the applicant’s quadriceps muscle. He had also referred Mr Jones to a neurosurgeon for assessment of his back.
Dr Herald was to see the applicant after MRI scans of his shoulder, as he was concerned that he may end up needing an operation.
Dr Herald again reported on 28 April 2023.
The applicant told Dr Herald that his shoulder was getting worse by the day. MRI scans showed a full-thickness tear that was retracting. He had explained to Mr Jones that the tear occurred as a result of his injury. His most urgent problem was his shoulder, and Dr Herald recommended arthroscopic rotator cuff repair surgery. In the meantime, it was unlikely that the applicant would be able to work.
Dr Herald reported to Dr Huynh on 17 May 2023.
The applicant continued to have right shoulder pain, back pain, and left knee pain. They were “in a holding pattern” because he was unable to obtain approval for treatment for either his right shoulder or back and was using a brace for his left knee. He had not been able to do knee physiotherapy, although he had approval, because of a combination of injuries affecting his back and right shoulder.
Dr Herald said “[A]s you know”, the applicant’s left knee had patellar instability, and his knee gave way and he fell on 3 February 2023, injuring his right shoulder. His back had been secondarily injured due to the prolonged period of limping as a result of his knee injury.
Dr Herald had explained to the applicant that his right shoulder injury was directly connected to his left knee injury, because it was his instability from his patella dislocation that resulted in his falling and tearing his right shoulder. Similarly, Dr Herald would say his back injury was related, due to compensation from limping, as confirmed by Dr Nair.
The applicant was “stuck in his ability to rehabilitate his multiple injuries and his ability to return to any form of work without appropriate treatment for all of his injuries”.

100.Dr Herald had explained to the applicant that he was “not just a knee” but a whole person. They needed to concentrate on treating all his injuries. In the interim, Dr Herald suggested hydrotherapy and analgesics.
101.Dr Herald reported to the applicant’s solicitors on 22 September 2023.
102.Dr Herald noted the history as recorded in his previous reports. He had been hopeful that, with the strengthening program, the applicant would be able to upgrade to his pre-injury duties. However, as a result of ongoing limping and troubles with walking, he was developing back pain and radiculopathic symptoms to the left lower limb.
103.The applicant had a pre-existing history of back pain, but the fall had aggravated his back and it had gotten worse with limping. He also had an injury to his right shoulder “with the fall and restricted motion.”
104.Dr Herald noticed that the applicant had significant quadriceps muscle atrophy, which he was concerned may be related to his back. MRI scan of his back showed an L5/S1 annular tear and a T12 fracture. Dr Herald was unsure if this was old or new, but given the amount of quadriceps wasting, he may need to be seen by a neurosurgeon.
105.MRI of the applicant’s shoulder showed a full thickness rotator cuff tear. As it was also getting worse, Dr Herald recommended arthroscopic rotator cuff repair surgery.
106.Dr Herald’s assessment was right shoulder full-thickness rotator cuff tear; healed MCL and MPFL injury to the left knee, with continuing medial meniscal tear; T12 crush fracture; and L5/S1 annular tear with radiculopathic symptoms affecting the right [sic] lower limb.
107.Dr Herald opined that, based on the information available, the applicant was performing heavy manual labouring until his fall. As a result, he sustained injuries to his back and left knee. He had had multiple falls and giving way as a result of his quadriceps muscle wasting and back pain and sustained a second injury to his right shoulder on 2 February 2023. As a result, his employment was a substantial contributing factor to his injuries.
108.The applicant’s rotator cuff tear was likely to increase in size as time went on. He was also suffering chronic pain affecting his back and left lower limb.
109.Dr Herald was asked to comment on Dr Rimmer’s opinion. He responded that, based on his clinical examination, the applicant had significant quadriceps muscle wasting. This resulted in weakness of the knee joint and occurred as secondary to his fall and subsequent injuries to his left knee. It was as a result of this muscle wasting that his knee gave way.
110.As regards the applicant’s back symptoms, Dr Herald opined that he had a T12 crush fracture, which may have occurred as a result of the fall, or from a previous injury. There may also have been secondary back pain from limping. However, the L5/S1 annular tear and the crush fracture may indicate a significant frank injury.
111.Dr Herald opined that, with a full-thickness tear, it was likely that the applicant’s rotator cuff tear would progress without surgery.

Activ Therapy Eagle Vale

112.Mr Kendrick Law recorded on 11 November 2022 a history that the applicant had tripped on a pile of bricks, landing on his left knee. He was unable to remember any twists of the knee. He felt there was no strength in the knee. It gave way. There was clicking in the left knee “when the P + N in the L) big toe.”
113.The applicant had previous physiotherapy and surgery for a lumbar spine injury “Workers Comp”.
114.Mr Law diagnosed quadricep contusion and possible meniscus tear.
115.On 16 November 2022, Mr Law recorded that the applicant was annoyed there was no progress. His knee had given way while he was getting out of the car, and he had aggravated the knee.
116.On 25 November 2022, Mr Law recorded that the applicant had not had a fall since Monday last week. He had a fear of falling.
117.On 9 December 2022, Mr Law recorded that the applicant’s stability had improved with the knee brace. The applicant did believe he had not had the stability. The knee brace was not clicking in the knee.
118.On 21 December 2022, Mr Law recorded that the knee brace had worked well. The applicant had gone to the specialist last week. His MRI showed MCL and LCL (lateral collateral ligament) strains.
119.On 23 December 2022, Mr Law recorded that the applicant had woken in the middle of the night. He had felt his knee twist and dislocate. He felt pain in the knee. Mr Law made a similar notation on 11 January 2023.

Actevate Pty Ltd

120.Mr Ben Bailey of Actevate Pty Ltd (Actevate) carried out a functional assessment of the applicant on 7 February 2023, and reported on 17 February 2023.
121.Mr Bailey concluded that, due to the incomplete nature of the testing, and the extent of task refusal by the applicant, an overall level of work could not be determined. The result was significantly influenced by the applicant’s self-limiting and inconsistent behaviour. It was difficult to predict whether he was capable of sustaining work for an eight hour day.
122.The applicant had self-limited on 68% of 19 tasks. Possible causes for self-limiting behaviour include pain; psychosocial issues such as fear of re-injury, anxiety, or depression; and/or attempts to manipulate test results. Their research indicated that motivated clients self-limited on no more than 20% of test items. If the self-limiting exceeded 20%, then psychosocial and/or motivational factors were affecting the results.
123.Mr Bailey recorded a consistent history of the injury and the applicant’s treatment.
124.The applicant reported four separate falls since the injury and expressed high levels of apprehension in relation to the stability of his left knee. He reported experiencing changes in power in his knee, resulting in this apprehension. Mr Bailey recorded dark, unhealed abrasions on the left knee from falls sustained post-injury.
125.Mr Bailey recorded that the applicant’s major areas of dysfunction were dynamic strength; position tolerance; mobility; and balance.
126.The factors underlying the applicant’s performance were decreased muscle strength in the left leg; decreased range of motion in the left knee and ankle; decreased muscle flexibility in the left leg; pain in the left knee, right shoulder, and lower back; self-limiting behaviour; fear of re-injury; and his general attitude to the assessment.

Dr Anil Nair – spinal surgeon

127.Dr Nair reported first to Dr Herald on 28 March 2023.
128.The applicant had presented with back pain in his lumbosacral spine, radiating into the left lower extremity. The symptoms had been present since a workplace injury in October 2022, when he tripped and fell at work. He sustained multiple injuries, including to his left knee, lumbar spine, and shoulder.
129.MRI of the lumbar spine revealed a L5/S1 disc herniation and annular tear, with transitional anatomy noted.
130.Dr Nair had discussed with the applicant the options of physical therapy and corticosteroid injections. The applicant was keen on an injection, and Dr Nair sought approval from EML.
131.On 29 March 2023, Dr Nair requested approval for L5/S1 diagnostic blocks. They were necessary “in view of a permanent and anatomical aggravation as evidenced by objective patho-anatomy” that could only be rectified surgically.
132.Dr Nair reported to the applicant’s solicitors on 31 August 2023.
133.Dr Nair diagnosed L5/S1 degenerative disc disease, which had been permanently aggravated due to the applicant’s abnormal gait, secondary to his left knee condition.
134.The applicant’s incapacity for work was “clearly and unambiguously linked to the work-related fall”. Dr Nair opined that his prognosis was guarded, in particular due to the significant discogenic lower back pain consequent to his work related injury.
135.Dr Nair opined that the MRI of the applicant’s left knee on 15 December 2022 “clearly and unambiguously reveals pathoanatomy that could certainly trigger falls”.
136.Dr Nair agreed that the applicant’s lumbar spine condition was a consequential condition.

Dr Stephen Rimmer – orthopaedic surgeon

137.Dr Rimmer was qualified by the respondent and reported first to EML on 5 April 2023.
138.Dr Rimmer recorded that the applicant had fallen over a pile of bricks, injuring his left knee. This caused the gradual onset of pain, and difficulty weight-bearing. Due to the persistence of symptoms, the applicant saw his general practitioner (GP) two days later and was assigned off work.
139.The applicant underwent investigations and physiotherapy. He was referred to
Dr Herald and further investigations were performed. From Dr Herald’s correspondence, there was no surgical pathology, and he recommended conservative management.
140.The applicant mentioned that his left knee had continued to give way, causing injuries to his right ankle and right shoulder.
141.Dr Rimmer “would like to highlight the following correspondence from Dr Herald firstly on the 3/2/2023 which stated the following ‘on examination of his right shoulder he has a full range of motion’”. (Original in bold). Only three weeks later, on 24 February 2023, on examination of the right shoulder “there was a marked decreased range of motion!!” The applicant stated that the insurer had declined liability for his right shoulder.
142.Dr Rimmer noted that the applicant fell out of a tree, injuring his lumbar spine, at the age of 18. He underwent a nucleoplasty and made a complete recovery. He denied a previous history of injury to the left knee, right ankle, or right shoulder.
143.Physiotherapy to the applicant’s left knee had ceased because “I cannot hold onto anything.” He took analgesic medication.
144.In his left knee, the applicant described stiffness and instability. There was no clicking, swelling, or locking. He had little or no pain.
145.The applicant was “not worried about” his right ankle.
146.The applicant’s right shoulder was “completely buggered”. He remained off work.
147.Dr Rimmer referred to the applicant’s investigations. He noted the MRI scan of the applicant’s left knee dated 15 December 2022, which showed no abnormality, and he disagreed with the report. He may have meant he agreed, but he has not elaborated.
148.Dr Rimmer diagnosed the applicant with resolved soft tissue injury of the left knee; “lower back there is no diagnosis”; and resolved soft tissue injury of the right ankle. The applicant required MRI arthrogram of his right shoulder to see if there was any pathology present.
149.Dr Rimmer opined that there were gross inconsistencies between the applicant’s reported symptoms and the level of incapacity and objectively identified pathology, and tendencies to over-exaggeration. The applicant “clearly demonstrates abnormal illness behaviour”.
150.Dr Rimmer did not believe that the applicant had injured his lower back at any time. That was confirmed by the history he provided. He claimed that his right ankle injury occurred as a result of a fall, but “he was freely admitting this has resolved.” The applicant claimed that he injured his right shoulder as a result of his left knee giving way.
151.Dr Rimmer opined that the injuries to the applicant’s right shoulder, right ankle, and lower back occurred as a result of him “alleging” he had had recurrent falls due to his left knee and had subsequently injured his right shoulder and right ankle on two occasions.
152.The applicant’s main symptomatic site at that examination was his right shoulder. However, as Dr Rimmer had highlighted, Dr Herald had said at the beginning of February 2023 that he had a full range of motion of the right shoulder, only to say three weeks later that he had a grossly restricted range of motion.
153.Dr Rimmer opined that there was no pathology present, either clinically or radiologically, to substantiate the applicant’s allegations of ongoing instability in his left knee. There was no evidence of a pre-existing condition of the applicant’s left knee or right ankle. With regard to his right shoulder, he required MRI arthrogram to determine this.
154.Dr Rimmer opined that all that was required to treat the applicant’s left knee was a home-based exercise program. He required MRI arthrogram to comment accurately on treatment that was reasonably necessary for the right shoulder.
155.Dr Rimmer believed that, from a physical perspective, the applicant’s left knee injury had resolved.
156.Dr Rimmer reported that he could only comment on the history provided by Mr Jones, who stated that as a result of his left knee giving way on multiple occasions, he had injured his right shoulder and right ankle on two different occasions. However, he “would again like to emphasise” there was no pathology or anything on clinical examination that would substantiate these claims of ongoing left knee instability.
157.The applicant had recently undergone a nerve conduction study of both lower limbs, which Dr Rimmer had reviewed, and it was “a completely normal study.”
158.Dr Rimmer recommended a period of surveillance.
159.Dr Rimmer reported on a file review on 23 May 2023.
160.Dr Rimmer had been provided with investigations, including ultrasound report of the right shoulder dated 4 April 2023 and MRI report of the right shoulder dated 21 April 2023;
Dr Herald’s report dated 28 April 2023; and surgery request dated 3 May 2023.
161.Dr Rimmer was asked how long after the “alleged” workplace incident he believed the applicant’s left knee condition had resolved.
162.He responded that it was impossible to state with accuracy, as he had assessed
Mr Jones only once. However, he “would like to highlight” that his opinion was consistent with that of Dr Herald regarding the applicant’s left knee, in that there had never been any surgical pathology present, and Dr Herald recommended conservative management only.
163.Dr Rimmer did not believe the applicant’s left knee condition was capable of causing instability to the extent that it “allegedly” triggered falls at home on multiple occasions, for the following reasons:
· radiological investigations of the left knee showed no abnormality to cause the alleged instability, and
· the applicant clearly demonstrated abnormal illness behaviour.

164.Dr Rimmer opined that the alleged injuries to the applicant’s right ankle, lumbar spine, and right shoulder had no attribution to his employment with the respondent.
165.Dr Rimmer was asked whether he believed the proposed right rotator cuff surgery was reasonably necessary.
166.Dr Rimmer responded that in general terms, surgical intervention was always the last resort. As far as he could ascertain, the applicant had not exhausted all conservative management, that is, all conservative measures, which is standard practice prior to surgical intervention, being a six to eight week course of physiotherapy in conjunction with a cortisone injection, and then re-assessment.

167.Dr Rimmer disagreed with Dr Herald’s assertion that the applicant was unlikely to be able to work until he underwent arthroscopic rotator cuff repair. He opined that there was no physical reason why Mr Jones could not return to the workplace, effective immediately, on suitable duties. He could work full hours with a 5kg weight restriction.
168.Dr Rimmer opined that, ideally, the actual radiological images, and not the reports, should be reviewed to give an accurate assessment.
169.Dr Rimmer thought it would be “worthwhile” to seek Dr Herald’s reasoning as to why, on 3 February 2023, he stated that the applicant had a full range of motion in his right shoulder, which report was followed only three weeks later, on 24 February 2023, by one in which he provided a marked decreased range of motion in the right shoulder.

Dr James Bodel – orthopaedic surgeon

170.Dr Bodel was qualified by the applicant and reported first on 23 July 2023.
171.Dr Bodel summarised the applicant’s injuries as being to the left knee, and consequential injury to the right shoulder, lumbar spine, and right foot and ankle.
172.Dr Bodel recorded a history that the applicant had tripped over some “offcuts” of pavers and fell, landing on his flexed left knee. He was in quite severe pain. He consulted his GP on the following Monday because of continuing left knee pain.
173.The applicant was referred for MRI of his left knee, as he had episodes of it giving way and locking. He was then referred to Dr Herald, who recommended physiotherapy and time off work.
174.The applicant still felt that his knee was unstable, and Dr Herald began to discuss a possible knee reconstruction. Mr Jones had been provided with a knee brace.
175.Dr Bodel recorded that the applicant had had a number of falls because his leg gave way on him. In several of these, he reinjured his back and injured his right shoulder and right knee [sic]. The right shoulder injury occurred in a fall in about March 2023.
176.The applicant’s doctor had recommended ultrasound, X-ray, and MRI of the right shoulder, but the s 78 notice issued by the insurer had stopped further treatment. The scans were done, but Mr Jones had not been able to be reviewed by Dr Herald for possible treatment.
177.Dr Bodel noted the applicant’s previous lower back injury and nucleoplasty. He was off work for nine months and recovered well before taking up bus driving. He had had multiple falls because of giving way on the right leg and right knee [sic].
178.The applicant complained of pain in the right shoulder. He could not push, pull, lift, or use his right arm overhead. He woke if he rolled on his right side at night. He had pain in the lower back, buttocks, and the anterior aspect of the left knee. The left knee gave way on him.
179.Dr Bodel recorded that the applicant could drive an automatic, but not a manual, vehicle. He struggled with household maintenance and cleaning that he may normally do.
180.Dr Bodel noted that the applicant’s back was stiff. He had a left-sided limp. There were no abnormalities noted in his neck. There was tenderness over the right rotator cuff anteriorly on the right side, and some generalised wasting in the right shoulder, when compared to the left. There was restricted range of shoulder movement.
181.Dr Bodel recorded tenderness at the lumbosacral junction and guarding on the left side. There was no wasting in either thigh or calf. There was restricted range of movement of the left knee, with tenderness over the medial joint and a small effusion.
182.Dr Bodel referred to the applicant’s investigations of the left knee, right shoulder, and lumbosacral spine; and the “extensive documentation from the local doctor and the physiotherapist”, which he opined was consistent with his ongoing medical management.
183.Dr Herald had recommended surgery and had referred the applicant to Dr Nair for management of his back condition. Dr Nair had indicated there was a disc injury at L5/S1.
184.Dr Bodel recorded that the applicant was not making progress. He had a lot of trouble with the right shoulder and “need[ed] to have that attended to surgically”, but the other area was treated conservatively “at the moment”.
185.Dr Bodel opined that the applicant’s clinical findings were causally related to the primary injury or the consequent events that occurred following that injury. Those consequential injuries were to the right shoulder, lumbar spine and left [sic] foot and ankle (amended in his supplementary report).
186.Clinical examination confirmed significant pathologies in the knee, the ankle, and the neck.
Dr Bodel recorded that the applicant apparently had a CT scan of the cervical spine within a few weeks of the injury, and there was mild degenerative change that had largely settled.
187.Dr Bodel noted that the applicant had signs of pain and stiffness in the region of the right shoulder, mechanical backache in the lower back, and a restricted range of knee movement in the left knee, caused by the accident at work and the consequential injury when he fell. He was satisfied that all the injuries, including the consequential injuries, were causally related to the effects of the injury.
188.Dr Bodel disagreed with Dr Rimmer’s diagnosis of a resolved soft tissue injury to the left knee. He opined that the applicant had degenerative change, but he was asymptomatic until these injuries.
189.Dr Bodel also disagreed with Dr Rimmer’s opinion that the condition of the applicant’s left knee was capable of causing instability to the extent that it “allegedly” triggered falls on multiple occasions. He opined that the falls occurred as a consequence of the weakness in the left knee, which occurred as a result of the work injury. They were causally related.
190.Dr Bodel opined that cortisone injections for the applicant’s L5/S1 disc injury were reasonably necessary for management of the injury. An arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair were appropriate. The subacromial decompression and tenodesis were also necessary, as recommended by Dr Herald.
191.Dr Bodel opined that the applicant was not capable of work, and “certainly” could not do his work as a bus driver [sic].
192.Dr Bodel provided a supplementary report dated 19 September 2023. He had been provided with, among other things, the photographs of the applicant’s right foot and ankle.
193.Dr Bodel reported that the images showed extensive bruising on the medial side of the applicant’s foot and ankle. It was difficult to age the bruise, but he opined that it was probably 7-10 days after the injury. It appeared to be resolving.
194.Dr Bodel agreed with the opinions expressed by Dr Nair in his report dated 31 August 2023. The applicant had radiological evidence of L5/S1 degenerative disc, which had been aggravated by his abnormal gait and episodes of giving way. He agreed there was pathology in the applicant’s left knee that could cause episodes of giving way, and the consequential injuries that occurred with those episodes, including to the right shoulder and right foot and ankle.
195.Dr Bodel corrected his previous reference to the applicant’s left ankle. The photographs he had seen were clearly of the right ankle. The diagnosis, based on the clinical picture, was a soft tissue ligamentous type injury, leading to extensive bruising and bleeding. The swelling and haematoma formation was slowly resolving.
SUBMISSIONS
196.The submissions have been recorded. I will therefore refer to the main points.

Applicant

197.The applicant submitted that the instability of his left knee had caused him to suffer falls, the effect of which was that he had consequential conditions of his right shoulder and foot and low back.
198.The applicant referred to his evidence about the fall onto his left knee, about which there is no dispute. He was in pain, and limping. He referred to the GPs’ records regarding his consequential conditions, and his investigations.
199.The applicant referred to the evidence of, in particular, Drs Herald and Nair.
200.The applicant submitted that there had been a consistent history throughout the period since the injury of ongoing knee difficulties, giving way, and falls, reported to his GP and Dr Herald; his low back condition began to manifest in 2023, due to altered gait, confirmed by his GP, Dr Herald, and Dr Nair; and scans demonstrated consistent pathology. Both Drs Herald and Nair accepted that his knee pathology was consistent with the mechanism of injury, and with falls.
201.The applicant submitted that that evidence, and his own, was sufficient for him to succeed, without reference to either Dr Rimmer or Dr Bodel. He nonetheless referred to and relied on Dr Bodel’s evidence, including as to the reasonable necessity of treatment.
202.The applicant was critical of Dr Rimmer’s opinion. He submitted that Dr Rimmer was acting as an advocate. He had suggested the applicant exhibited abnormal illness behaviour, without explanation, and was the only person to form that view. The applicant asked how Dr Rimmer could say his left knee condition had resolved at some indeterminate time. He submitted I would give no weight to Dr Rimmer’s opinion.
203.The applicant submitted I would find that his accepted knee condition caused instability, which caused his consequential conditions. They were not “section 4 injuries”. He submitted that I would not find that his knee condition had resolved.
204.The applicant further submitted that I would find that the proposed surgery was reasonably necessary, referring to the principles in Diab v NRMA Ltd,[1] which were addressed by his treating doctors.
[1] [2014] NSWWCCPD 72 (Diab).
205.The applicant finally submitted that he had no capacity for work, on the evidence of Dr Herald and his GP. The COCs all said the same thing, that he had no capacity. That was not surprising when one looked at his complaints. The applicant referred to Wollongong Nursing Home Pty Ltd v Dewar.[2]
[2] [2014] NSWWCCPD 55.
206.In reply to the respondent, the applicant submitted that the previous ultrasound of his right shoulder was normal. There was a contemporaneous complaint of the fall.
207.The applicant referred to the decisions in Bouchmouni v Bakhos Matta t/as Western Red Services[3]and Kumar v Royal Comfort Bedding Pty Ltd[4] . He submitted that “does it result from?” is the test.
[3] [2013] NSWWCCPD 4 (Kumar).
[4] [2012] NSWWCCPD 8.
208.The applicant submitted that his clinical records were given to Drs Rimmer and Bodel. If they were not concerned, why would I be concerned? If it was so important, why did Dr Rimmer not refer to it? There had been no complaints for 10 years. The “morphing” of the conditions was consistent with the investigations.

Respondent

209.The respondent submitted that there were a number of features that would give rise to disquiet. The applicant’s previous history was unquestioned by many practitioners.
Dr Bodel’s unflinching acceptance of his version was contrary to the evidence.
210.The respondent submitted that there was no support for the attribution of the condition of the applicant’s right shoulder and lumbar spine to his knee condition, other than what he told his GP. The pathology was reasonably benign. It was insufficient to justify the instability that the applicant said he had, and that led to the falls. When the relatively benign pathology was questioned, the case “morphed” into reliance on muscle atrophy. The consequential condition of his back “must” be because of his antalgic gait. There was a thoracic fracture, so there “must” be an aggravation.
211.The respondent submitted there was a want of explanation in the reports of Drs Herald and Nair. The applicant had tried to undermine Dr Rimmer, but his was the most reasonable explanation.
212.The respondent submitted there was ambiguity about the applicant’s falls. He initially stated there were two, not three, falls, and the date of the fall was different. His back injury was initially due to overcompensation, but then it became possibly a frank injury.
213.The respondent submitted that Dr Rimmer opined that the applicant’s knee pathology was minor. Dr Herald had “seized” on muscle wasting to explain away the lack of pathology.
214.The respondent submitted that it was difficult to accept the change in the nature of the case. Dr Herald said the applicant was healing, but then found muscle atrophy.
215.The respondent submitted that I would have concerns in accepting the applicant’s treating medical evidence, and in respect of the consequential conditions.
216.The respondent submitted that tears of the rotator cuff were common among men of the applicant’s age. The applicant objected, but the submission was allowed, given that it was only a submission, which was in any event unsupported by evidence.
217.The respondent referred to the clinical records, which recorded right shoulder pain before the injury. The applicant had a previous back injury, and a motor vehicle accident in 2009, when he injured his neck and low back. None of that was dealt with by the practitioners. It was not for the respondent to raise it. It should have been dealt with by the doctors.
218.The respondent referred to Dr Rimmer’s evidence and submitted the pathology in the applicant’s left knee was not capable of causing instability. Dr Herald, in his report dated 14 December 2022, was not able to explain where the applicant’s knee pain was coming from. He had landed on his knee, and not twisted it.
219.The respondent submitted that I would not accept Dr Herald’s opinion, as it was irrational. He was uncertain whether the pathology shown in the applicant’s back was new or old. There was no clarity as to causation.
220.The respondent submitted that Dr Bodel had opined that the applicant had reinjured his back in the falls, which was “going against the grain”, and was new. He was “ambitious”, and trying to suggest the applicant’s neck condition was related to the injury.
221.The respondent submitted that the doctors had given various opinions about the cause of the applicant’s back pain. It was suggested that his knee had given way because of muscle wasting, so the situation had “morphed”. It had also been suggested that the fracture at T12 may have been due to the fall. This was “extraordinary”. There was speculation and guesswork.
222.As regards the proposed shoulder surgery, the respondent submitted that Dr Rimmer recommended conservative measures. The issue of capacity would flow from my decision. If I accepted Dr Rimmer’s opinion, the injury had resolved, and the applicant was able to work.
SUMMARY
Consequential conditions
223.The applicant claims to have sustained consequential conditions of his right shoulder, lumbar spine, right foot and right ankle as a result of the accepted injury to his left knee.
224.As the applicant submitted, he does not need to establish that he has sustained injury to his right shoulder, lumbar spine, right foot or right ankle, arising out of or in the course of his employment, pursuant to s 4 of the 1987 Act. He also does not need to establish that employment was a substantial contributing factor to the condition, pursuant to s 9A of the 1987 Act.
225.In accordance with the decision of Deputy President Roche in Kumar, and the cases discussed therein, Mr Jones need only establish on the balance of probabilities that the condition of his right shoulder, lumbar spine, right foot and right ankle resulted from the accepted injury to his left knee.
226.Roche DP applied in Kumar the principles of Kooragang Cement Pty Ltd v Bates.[5]
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
227.In Kooragang, Kirby P as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

228.His Honour went on to say that where causation is in issue, each case must be determined on its own facts; and at [463]-[464] “what is required is a commonsense evaluation of the causal chain”.
229.Dealing first with the claim for consequential condition of the applicant’s right shoulder, he has stated that his knee has on three occasions given way, causing him to fall, and as a result of one such fall, he injured his right shoulder.
230.The clinical records of Eagle Vale confirm that the applicant complained of instability and giving way in his knee. The condition of his knee did not improve.
231.There is a record of the applicant having fallen when his knee gave way. There is a record of right shoulder pain on 3 March 2023, after the applicant had fallen when his left knee gave way, and he lost his balance.
232.Mr Law has also recorded a history that the applicant’s left knee was giving way and he had fallen. He had a fear of further falls.
233.Mr Bailey recorded a history of four separate falls, and that the applicant had a high level of apprehension about the stability of his left knee.
234.There is ample contemporaneous evidence of instability and giving way of the applicant’s left knee, causing him to fall. I accept his evidence that he injured his right shoulder when he fell in February 2023.
235.There is also evidence from Dr Herald, who is the applicant’s treating specialist, and has had the benefit of seeing him on several occasions. He was initially unsure of the cause of the applicant’s left knee pain. However, after arranging a higher grade MRI, he diagnosed MPFL and MCL tears, which seemed to be small and healing.
236.The applicant’s knee collapsed “a few times”, and Dr Herald not surprisingly sought an explanation for this. He opined that it was due to quadriceps muscle wasting. I do not regard this as a “morphing” of the situation. Rather, the applicant’s knee was collapsing (which I accept), and his doctor was trying to ascertain why this was occurring. He has provided his opinion, and Drs Nair and Bodel agreed.
237.Dr Rimmer opined that the condition of the applicant’s knee was not such that it would cause instability to the extent that it triggered multiple falls. I am satisfied, however, that the applicant did have multiple falls, and there is no evidence of this occurring before the injury.
238.Dr Rimmer reported that the investigations of the applicant’s left knee showed no abnormality that would cause the instability; and the applicant demonstrated abnormal illness behaviour.
239.Dr Herald has explained why he disagreed with Dr Rimmer regarding pathology in the applicant’s left knee, and the reason for it giving way.
240.Dr Rimmer opined that there were gross inconsistencies between the applicant’s reported symptoms, the level of incapacity, and the objectively identified pathology, and tendencies to over-exaggeration. That appears to be why he believed the applicant demonstrated abnormal illness behaviour.
241.Dr Rimmer reported that the applicant was anxious, not that he was uncooperative. He recorded no clicking, swelling, or locking of the applicant’s left knee, and very little pain. The applicant was “not worried by” his right ankle. That does not suggest exaggeration. He said his right shoulder was “completely buggered”, and the evidence of Drs Herald and Bodel certainly supports that he has pathology in the shoulder that requires surgery.

242.Mr Bailey reported that the applicant’s behaviour was self-limiting and inconsistent. However, he also noted that causes of self-limiting behaviour included pain, fear of re-injury or depression, as well as attempts to manipulate test results.
243.The applicant had a fear of further falls, he was “anxious”, according to Dr Rimmer, and he was in pain from his right shoulder. It is in my view more likely that his behaviour was influenced by these factors, than by an attempt to manipulate the results of the tests, or because of abnormal illness behaviour.
244.I prefer the evidence of Drs Herald, Nair and Bodel to that of Dr Rimmer, and in particular that of Dr Herald, for the reasons given above.
245.I accept that the applicant has sustained a consequential condition of his right shoulder as a result of the injury to his left knee on 21 October 2022.
246.Dealing next with the claim for consequential condition of the applicant’s lumbar spine, the applicant’s evidence is that he did not feel pain in his back at the time of the fall. He had experienced gradual back pain and there had been no specific incident. He has had a previous back injury.
247.Eagle Vale’s clinical notes record that the applicant was “still” limping on 16 November 2022, which suggests that he had been limping since the date of the injury. He was still limping in January 2023, and when Dr Bodel examined him in July 2023.
248.Dr Herald opined that the applicant’s back had been injured due to prolonged limping as a result of the injury to his knee; and Dr Nair agreed. Dr Bodel opined that he had a consequential injury to the lumbar spine.
249.Dr Rimmer did not believe that the applicant had injured his lower back at any time, and that was confirmed by the history. The injury to the applicant’s lower back was the result of him “alleging” he had recurrent falls. The “alleged” consequential conditions had no attribution to his employment.
250.Dr Rimmer’s opinion appears to be based on his conclusion that the pathology in the applicant’s left knee was not sufficient to cause the alleged instability. I have already said that I accept the applicant’s left knee had given way several times. It is the applicant’s case that the consequential condition of his lumbar spine resulted from him limping, due to the condition of his left knee.
251.Dr Rimmer has not commented on whether the applicant may have sustained a consequential condition of his lumbar spine as a result of the fact that he was limping. His reports are therefore of no assistance in resolving this issue.
252.I once again prefer the opinions of Drs Herald, Nair and Bodel, as well as considering the evidence of the applicant and the GPs.
253.I accept that the applicant has sustained a consequential condition of his lumbar spine as a result of the injury to his left knee on 21 October 2022.
254.As regards the consequential condition of the applicant’s right foot and right ankle, he has given evidence about the fall that caused that injury, it was recorded by his GP, and there are photographs of bruising. Neither Dr Herald nor Dr Nair has paid any attention to this injury, probably because the applicant was “not worried about it” but Dr Bodel has opined that it is a consequential condition.
255.Dr Rimmer did not attribute the condition of the applicant’s right foot and right ankle to the injury to his left knee, but that was because he did not believe the condition of his knee was such as to cause him to suffer falls.
256.If it is accepted, as I accept, that the applicant suffered falls as a result of injury, then it is reasonable to accept that he sustained the injury to his right foot and ankle as a result of a fall.
257.The applicant sustained a consequential condition of his right foot and right ankle as a result of the injury to his left knee on 21 October 2022.

Reasonable necessity of proposed medical treatment

258.I am satisfied that the proposed surgery to the applicant’s right shoulder, that is right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis, is reasonably necessary as a result of the injury on 21 October 2022.
259.Dr Herald, who has treated both the applicant’s left knee and his right shoulder, has diagnosed a full-thickness tear of his rotator cuff, based in part on his review of MRI scan. He described the shoulder problem as the applicant’s most urgent. Dr Herald opined that the tear was likely to increase in size with time, without surgery.
260.Dr Bodel agreed that the applicant required surgery to his right shoulder.
261.Dr Rimmer appears to have based his opinion that the applicant does not require right shoulder surgery at least in part on Dr Herald’s recording of a full range of motion on
3 February 2023, and decreased range of motion three weeks later. I am unsure of the relevance of this, given the findings on MRI and the applicant’s complaints that his right shoulder was getting worse by the day.
262.Dr Rimmer opined that surgery was “always the last resort”, and the applicant had not exhausted all conservative measures, including physiotherapy in conjunction with a cortisone injection.
263.Dr Herald reported that the applicant had not been able to do knee physiotherapy because of the injuries to his shoulder and back, but he suggested hydrotherapy and analgesics as an interim measure. The applicant was “in a holding pattern”. Dr Herald’s opinion that the tear was likely to increase without surgery does not suggest that conservative measures would assist.
264.In my view, Dr Herald was in the best position to opine as to the reasonable necessity of surgery. Dr Rimmer’s opinion appears to have been influenced by his belief that the applicant was demonstrating abnormal illness behaviour. He did not appear to dispute the findings on MRI of the applicant’s right shoulder, although he said that, ideally, the images themselves should be reviewed.
265.The applicant relied on the decision of Roche DP in Diab.
266.Roche DP held in Diab that the criteria of reasonableness include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose v Health Commission (NSW),[6] that is:
[6] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

267.Roche DP said, however, that the “essential question remains whether the treatment was reasonably necessary”.
268.The applicant’s treating specialist is of the opinion that the tear in his shoulder is likely to increase without surgery, and Mr Jones would be unlikely to be able to return to work until surgery was performed.
269.I accept that the surgery is likely to be effective, although, as Roche DP said in Diab, all treatment, especially surgery, carries a risk of a less than ideal result. The alternative treatment appears to be physiotherapy and a cortisone injection. It was not submitted that the cost of the treatment is not reasonable. Both Drs Herald and Bodel agree that the surgery is appropriate and likely to be effective. I prefer their opinions to that of Dr Rimmer.
270.I therefore determine that the proposed surgery to the applicant’s right shoulder, as recommended by Dr Herald, is reasonably necessary as a result of the injury on
21 October 2022.
271.As regards the proposed L5/S1 diagnostic blocks, Dr Nair has opined that they are necessary. He had discussed physical therapy with the applicant, but the applicant was keen on the injections and Dr Nair obviously felt they were appropriate. Dr Bodel agreed that the proposed treatment was reasonably necessary. Dr Rimmer did not express an opinion, perhaps because he did not accept that the applicant had sustained injury to his lumbar spine.
272.Drs Nair and Bodel are clearly of the opinion that the proposed treatment has the potential to be effective. The evidence does not include costing of the treatment (although Dr Nair has provided Item Numbers), but it was not submitted that the cost of the treatment was not reasonable.
273.I am satisfied that the proposed L5/S1 diagnostic blocks, as proposed by Dr Nair, are reasonably necessary medical treatment as a result of the injury on 21 October 2022; and I make that determination.

Incapacity

274.The applicant’s evidence includes COCs issued by Dr Huynh on 28 April 2023 and
26 May 2023. Mr Jones was certified as having no capacity for work until 3 July 2023. Weekly benefits are claimed from 10 July 2023.
275.I have referred in detail above to the medical evidence. The only evidence that suggests the applicant has capacity for work is that of Dr Rimmer. He opined that, at some time that he was unable to specify with accuracy, the condition of the applicant’s left knee had resolved. He did not accept that the applicant had sustained any consequential conditions.
276.The weight of the medical evidence suggests that the condition of the applicant’s left knee has not resolved; and I accept that he has sustained consequential conditions of his right shoulder, for which he requires surgery, lumbar spine, for which he requires treatment, and right foot and right ankle, which appears to have resolved. He has not, of course, had the treatment recommended by Drs Herald and Nair, due to the liability dispute. I am satisfied that he has had no capacity for work since payments of compensation ceased on
10 July 2023.
277.I determine that the applicant has, since 10 July 2023, had no capacity for work, and he is therefore entitled to weekly compensation at a rate that is calculated as 80% x his PIAWE, pursuant to s 37 of the 1987 Act, from 10 July 2023 to date and continuing.
278.I have determined as follows:
(a)    the applicant has sustained consequential conditions of his right shoulder, lumbar spine, right foot and right ankle as a result of injury to his left knee on
21 October 2022;
(b)    the proposed medical treatment, that is right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis; and L5/S1 diagnostic blocks, is reasonably necessary as a result of injury on 21 October 2022, and
(c)    the applicant has, since 10 July 2023, had no capacity for work.

279.The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 658

8 December 2023