Kaab v Prime Poly Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kaab v Prime Poly Pty Ltd [2025] NSWPIC 66
APPLICANT:	Reza Kaab
RESPONDENT:	Prime Poly Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	4 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed knee surgery; causation; accepted injury to back; whether left knee injured at same time or consequential condition; Held – left knee injured at time of injury to back.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), the applicant sustained injury to his left knee as a result of injury in the course of his employment with the respondent on 11 May 2020. The applicant’s employment with the respondent was a substantial contributing factor to that left knee injury. 2. Pursuant to s 60 of the 1987 Act, the left knee surgery proposed by A/Prof Papantoniou is reasonably necessary as a result of the injury on 11 May 2020. 3. Pursuant to s 60 of the 1987 Act, the respondent is to pay for the cost of and associated with the left knee surgery proposed by A/Prof Papantoniou, being a left knee arthroscopy and partial medial meniscectomy. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The Mr Reza Kaab (the applicant) sustained an undisputed injury to his lumbar spine in the course of his employment with the respondent, Prime Poly Pty Ltd, on 11 May 2020.
That injury to the lumbar spine was sustained when the applicant was lifting a wooden panel weighing at least 15 kg when he lost balance and fell, and the panel landed on his back.
The applicant claimed in these proceedings for the cost of surgery to his left knee that was said to have been injured at the time of the accident on 11 May 2020 or the alternative as a condition that was consequential to the injury on 11 May 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the arbitration hearing of this matter on 29 January 2025, the applicant was represented by Mr T Hickey, of counsel, instructed by Mr Delaney, solicitor, and the responded by
Mr Robson, instructed by Ms Singh, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application for leave to admit documents dated 22 January 2025 and attached documents.

Oral evidence

There was no oral evidence.

Statements

The applicant provided three statements dated 17 June 2020, 15 December 2022 and
9 February 2024.
In his statement dated 17 June 2020 the applicant said that he was lifting and moving a large MDF cabinet weighing about 30kg when he lost control of the cabinet. He said that he had placed his hands underneath the middle section of the cabinet to avoid damage to the cabinet and he was moving it from above his head to the ground and so doing the cabinet became unbalanced and it hit him on his back just under the neck and the shoulder area. He stated that he actually managed to grab the cabinet before it hit the ground and he lowered it to the ground. He said that the pain in his back was unbearable. He stated that he was taken to the Shellharbour Hospital.
In his statement dated 15 December 2022 the applicant said that he began [BG1] experiencing pain in his left knee immediately following the workplace accident on
11 May 2020. He stated that the pain was severe and constant. He stated that he remembered reporting left knee pain to the doctor at the Shellharbour Hospital on the day of the injury.
The applicant also stated that following the injury he had trouble bending his back and he compensated for this by squatting and kneeling if he needed to pick something up off the floor or bend down. He also said that he placed extra strain on his left knee when moving from standing to sitting and vice versa.
In his statement dated 9 February 2024 the applicant referred to some knee pain that he had felt in April 2020 and that he had consulted his general practitioner (GP) Dr Han and he continued working on a full-time basis.
The applicant also said that on 11 May 2020 when he hurt his back he also hurt his left knee. He stated that the pain in his left knee was not like anything that he had experienced previously. He said that the pain was immediate and severe and constant. He said that he had trouble walking on his left knee following the accident and he could not continue to do his job. He said that he sought treatment from Dr Hannah and Dr Moussad. He also said that he reported the left knee injury to the Shellharbour Hospital and also to a representative from iCare.

Hospital and clinical notes and other documents

The nursing discharge checklist of the Shellharbour Hospital and a medical/attendance certificate dated 12 May 2020, issued by the same hospital, did not disclose symptoms that were noted or treated. These documents did indicate that the applicant was admitted on
11 May 2020 and discharged on 12 May 2020, with a recommendation for a prescription of Endone. I was not taken to any other documents from the Shellharbour Hospital.
The clinical notes of Dr Moussad were referred to in submissions. In particular the entry dated 14 May 2020, in addition to back pain, noted “referred pain” in the left lower limb. The entry for 20 May 2020 noted pain and requested a lumbar spine MRI scan in respect of lower back pain, “radiating to” the left lower limb. On 3 June 2020 a CT guided local steroid injection to the left L5/S1 was arranged. On 15 July 2020 Dr Moussad noted back pain, prescribed oxycodone and referred the applicant to A/Prof Papantoniou. On
21 October 2020 Dr Moussad noted bilateral knee pain, left more than right, and specialist review today, for which a letter was written to A/Prof Papantoniou.
The clinical notes of A/Prof Papantoniou, among other matters, make a first note of left knee pain on 21 October 2020. This appears to have been the first consultation post 11 May 2020.
There was also an MRI left knee report by Dr Ng, radiologist, dated 4 March 2021 to
Dr Moussad and A/Prof Papantoniou. The report concluded that this was an essentially normal MRI of the knee with no meniscal pathology.

Reports

Dr Hanna was also a treating GP of the applicant. In his report dated 27 April 2022 he noted that he had consulted the applicant on 15 September 2020 where it was noted that with walking the left knee gives way and there was left knee pain with flexion. He noted medial pain with half squat. He diagnosed left knee medial meniscal injury as a result of the incident on 11 May 2020 and also the general nature and conditions of the applicant’s employment. He commented that “it would not be so difficult to understand that a worker carrying a load of at least 30 kg and then falling whilst maintaining hold of this load could easily cause significant damage to their knees”.
In his report dated 6 June 2023, Dr Hanna was of the opinion that left knee injury had resulted from the nature of the applicant’s heavy lifting at work as well as the recurrence of injuries and symptoms on 11 May 2020. He was of the opinion that the incident on
11 May 2020 would have aggravated any earlier injury and also have caused new injuries in the absence of earlier injury. He was of the view that the proposed left knee surgery was required as a result of injury on 11 May 2020.
A/Prof Papantoniou, treating orthopaedic and spinal surgeon, provided a number of reports including reports dated 19 May 2021 and 6 June 2022.
In his report dated 19 May 2021 A/Prof Papantoniou noted complaints of lower back pain present day and night and causing sleep disturbance every night. He also noted complaint of left knee pain which was worse in the medial compartment compared to the lateral compartment. A/Prof Papantoniou noted an MRI of lumbar spine and the left knee of
3 March 2021. He commented that the left knee MRI demonstrates a discoid lateral meniscus and the medial meniscus demonstrates a horizontal cleavage tear with a clear increased signal visible on the images. He noted that the MRI report for the left knee “is incorrect and has not identified this pathology”.
In his report dated 6 June 2022 A/Prof Papantoniou stated that he had seen the applicant on seven occasions between 21 October 2020 and 1 September 2021. On 21 October 2020 A/Prof Papantoniou recorded a history of injury in May 2020 at work when a large wooden panel fell on the applicant’s back and pushed him all the way to the ground. A/Prof Papantonio recorded that at the time the applicant suffered immediate left sided lower back pain with radiation to the left posterior thigh and the left lateral knee. He noted that the applicant takes medication including tramadol and endone. He also noted that on consultation on 16 December 2020 the applicant had had five steroid injections until that point without a great deal of pain relief. He also noted that when he saw the applicant on
21 January 2021 he continued to have severe low back pain and sciatica and he also had quite significant left knee pain.
A/Prof Papantoniou also noted and discussed the MRI left knee findings along the same lines as noted above. He was of the view that the medial meniscus tear was related to the work injury. For the left knee, he recommended arthroscopy and partial medial meniscectomy[BG2] . He noted that at a consultation on 27 July 2021 the applicant’s [BG3] left knee had actually become worse with more prominent and more frequent symptoms. He noted that the applicant had a medial meniscus tear visible on MRI.
He noted from his history taken at the initial consultation that the applicant suffered a left knee injury at the time of his work injury. A/Prof Papantoniou also commented that:
“…It is fairly common that the pain from such injuries are overwhelmed by the pain associated with the lower back injury and other injuries. It is only after time, that such knee injury pain presents itself.
In Mr Kaab's particular case his lower back pain and sciatica was so severe as to mask the pain from the left knee injury. I note that the left-sided sciatica would also run along a similar distribution that included the pain from the meniscal tear.
The MRI findings are unequivocal and demonstrate the medial meniscal tear consistent with the injury suffered when a large pile of wood forced him to the ground.”
Dr Nair, orthopaedic surgeon, provided reports to the workers compensation insurer and to the respondent solicitors dated 20 March 2021, 26 November 2021 and 9 January 2025.
In his report of 20 March 2021, Dr Nair noted that there was no evidence of acute injury to the left knee. Dr Nair in his report of 26 November 2021 was asked to comment upon the diagnosis provided by A/Prof Papantoniou and to provide context as to why this was reported to be a traumatic injury to the left knee. Dr Nair responded by stating that “I am unable to hypothesise on Dr Papantoniou’s rationale. This question is best addressed [to] Dr Papantoniou.”
In his report dated 9 January 2025 Dr Nair was asked to comment upon the opinion of
Dr Bodel and also the recommendation for left knee surgery. Dr Nair stated that he did not favour the argument put by Dr Bodel that there was a consequential injury caused by kneeling and squatting, because kneeling and squatting are anatomical and physiological movements which a knee joint is engineered to perform. He also stated that “it is unclear as to the clinical result of the left knee arthroscopy performed by Dr Papantoniou”.
Dr Bodel provided reports to the applicant’s solicitors dated 20 July 2022, 25 May 2023, and 8 June 2024.
In his report dated 20 July 2022 Dr Bodel noted a history of injury to the applicant’s back on 11 May 2020 and consequential injury to both knees. The right knee is of course not relevant for this consideration. He noted a gradual onset of knee pain, the left worse than the right as a result of squatting and kneeling when the applicant could not bend his back. He was of the opinion that the left knee injury occurred subsequently to the injury of 11 May 2020 when the applicant was favouring the left side by kneeling and squatting rather than bending at the back. He diagnosed left knee pain with a torn medial meniscus as a consequence of the nature and conditions of employment following the back injury.
In his report dated 25 May 2023, Dr Bodel confirmed his view that the left knee injury was the result of the applicant’s work duties in general and was not a frank injury nor an aggravation of a disease process. Dr Bodel in his report dated 6 June 2024 confirmed his view in his earlier reports and also said that the injury in the form of the meniscus tear did not occur on 11 May 2020 but at some time after that event.

Reasons

The respondent’s submissions in general were to the effect that the applicant could not be regarded as having satisfied his onus of proving his case as the various statements and histories recorded and reports were conflicting, confusing and could not be relied upon. The respondent also submitted that, in respect of the opinion of A/Prof Papantoniou regarding the MRI of the left knee report noted above, he did not have the required specialist qualification to criticise the opinion of a specialist radiologist.
In my view, while there were discrepancies in various statements by the applicant as to the timing and extent of the onset of left knee pain, this should be seen in context of the significant pain and treatment that he was enduring in respect of his back injury, with what appeared to be an initial and understandable approach by the treating GP in respect of significant lumbar spine pain and lumbar spine treatment. For example, the applicant had undergone five lumbar spine steroid injections between May and December 2020, as well as being prescribed pain medication in the form of tramadol and endone. At the same time caution should be exercised and regard should be had to contemporaneous documents.
The clinical notes of Dr Moussad from May 2020 indicate that the applicant complained of left lower limb symptoms. While it is correct that these notes at that time did not specifically note left knee symptoms, these notes in my view were not inconsistent with the applicant’s statement that he suffered left knee pain at the time of the injury on 11 May 2020. This view is strengthened by the note of left knee pain by Dr Hannah in September 2020 and by A/Prof Papantoniou at first consultation in October 2020. The applicant complained of left knee pain at the first opportunity when he saw A/Prof Papantoniou in October 2020. The applicant said that he had previously complained of left knee pain to the Shellharbour Hospital on
11 May 2020 and to a representative of iCare. The applicant was not challenged on these points, other than the general inconsistency argument put by the respondent, and there was nothing before me to contradict his evidence of earlier complaint.
I accept the applicant’s explanation in this regard.
It is true that in his first statement the applicant did not mention left knee pain at the time of injury. However, any adverse finding that could be sought to be made in my view is not made out having regard to the contemporaneous evidence noted above.
Further, I note that in respect of the GP notes referring only to left lower limb pain and to radiating symptoms, A/Prof Papantoniou provided a persuasive explanation in this regard as noted above, when he stated that left-sided sciatica pain would run along a similar distribution that included the pain from the meniscal tear. There is no evidence before me to contradict this view.
The applicant was also taken to task in his statement for his description of the extent of severity of left knee pain at the time of the incident on 11 May 2020. While it is the case that there may be an element of overstatement with the passage of time, in my view this does not preclude consideration of whether there was left knee pain at the time of the incident on
11 May 2020. In my view, the above evidence indicates that there was left knee pain at the time of the incident on 11 May 2020. Further, A/Prof Papantoniou concisely recorded the more contemporaneous history of left knee symptoms, with such symptoms becoming worse over time, being more prominent and frequent.
It was also submitted by the respondent that A/Prof Papantoniou, while a treating surgeon who could review MRI scans in the course of providing treatment, was not qualified to criticise the opinion of a specialist radiologist.
In my view, this places too fine and rigid a distinction as to who is qualified to interpret an MRI scan. It is possible, and is in fact the case in my view here, that both a treating orthopaedic and spinal surgeon, such as A/Prof Papantoniou, and a radiologist are qualified to provide such an interpretation. It is not a matter of criticism of another specialist that is relevant for present purposes. A/Prof Papantoniou had the advantage of taking a history and clinically examining the applicant over a number of consultations. He also noted specifically that he had viewed the scan in question and drew attention to the aspect of the scan that he thought was important. In my view, the reasoning of A/Prof Papantoniou is persuasive and I prefer his opinion in respect of the subject MRI scan.
Dr Nair did not offer an opinion that was contrary to A/Prof Papantoniou, and indeed he seemingly deferred to the view A/Prof Papantoniou, as was submitted by the applicant.
Dr Bodel did not think there was an acute or frank injury to the left knee on 11 May 2020, but the contemporaneous records indicate otherwise, as I have found.
For the reasons given above, I accept the opinion of A/Prof Papantoniou as to injury to the left knee.
Accordingly, it is not necessary for me to traverse the opinion of Dr Bodel. It was the applicant’s case in any event to firstly consider injury to the left knee as opined by A/Prof Papantoniou, before turning to the opinion of Dr Bodel in relation to a consequential condition.
There were, appropriately, no submissions as to reasonable necessity. A/Prof Papantoniou’s recommendation for left knee surgery was not contradicted or disputed by Dr Nair. Dr Bodel agreed with A/Prof Papantoniou as to recommended treatment.
I find that the applicant sustained injury to his left knee in the course of his employment with the respondent. A/Prof Papantoniou was of the opinion that the applicant’s employment with the respondent was a substantial contributing factor to his injury. Although Dr Hanna pointed to a contribution from heavy work, this not inconsistent with the opinion of A/Prof Papantoniou, and to the extent that their opinions diverge, I prefer the opinion of A/Prof Papantonou due to his specialist expertise and analysis of the subject MRI. I accept the opinion of A/Prof Papantoniou.
I find that the left knee surgery proposed by A/Prof Papantoniou is reasonably necessary as a result of injury on 11 May 2020.

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[2025] NSWPIC 66

4 March 2025