Kokontis v Gate Gourmet Riverside Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kokontis v Gate Gourmet Riverside Pty Ltd [2023] NSWPIC 222
APPLICANT:	Chris Kokontis
RESPONDENT:	Gate Gourmet Riverside Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	15 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as a result of injury to the lumbar spine, thoracic spine, right lower extremity (right hip) and left lower extremity (left knee) on 14 February 2005; compensation previously paid for permanent impairment as result of injury to lumbar spine; respondent disputed injury to thoracic spine, right hip, and left knee; lack of contemporaneous complaint to initial treating doctor of injury to right hip or left knee; no reference in applicant’s statement to left knee; applicant’s former general practitioner has retired, and clinical records not available; advocacy by applicant’s independent medical assessor; consideration of Nguyen v Cosmopolitan Homes; Uniform Civil Procedure Rules 2005, Schedule 7; Personal Injury Commission, Procedural Direction 4; Held – award for respondent for claims for injury to the right hip and left knee; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as result of injury to lumbar spine and thoracic spine.
determinations made:	1. There is an award for the respondent for the claims for injury to the right hip and left knee. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 14 February 2005. (b) Body system/parts: (i) lumbar spine, and (ii) thoracic spine. (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 3 March 2023 and attached documents, and (d) Application to Admit Late Documents dated 6 April 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Chris Kokontis (Mr Kokontis), was employed by the respondent, Gate Gourmet Riverside Pty Ltd as an equipment handler/truck driver.
Mr Kokontis sustained injury to his back on 14 February 2005. He also claims to have sustained injury on that date to his right hip and left knee; and to have sustained injury to his back, right hip, and left knee as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, with the deemed date of injury of 14 February 2005.
By letter dated 7 February 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed to have 21% whole person impairment (WPI) as a result of injury to his thoracic spine, lumbar spine, right hip, and left knee. His solicitors noted that he had previously received lump sum compensation for the injury and requested details of the payment made.
By letter dated 15 August 2022, the applicant’s solicitors made on his behalf a claim for weekly benefits from 1 December 2020 to date and continuing.
On 26 August 2022, the respondent’s insurer, Employers Mutual Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant has sustained injury to his thoracic spine, right hip, or left knee. It accepted that he had sustained injury to his lumbar spine. It disputed that he was entitled to permanent impairment compensation because his accepted injury had not resulted in more than 10% WPI.
EML advised the applicant that a State Insurance Regulatory Authority (SIRA) search showed he had been paid $5,625 for permanent impairment “at some stage in the past”, the injury being recorded as “back – other and multiple”.
On 14 September 2022, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for payment of weekly benefits.
The applicant lodged an Application to Resolve a Dispute (the Application) on
20 January 2023.
The applicant claimed that on 14 February 2005, he was loading a truck which was about to depart to deliver goods to the aircraft. He leant into the truck and the rear roller door closed on his upper back as he was bending forwards and moving upwards to lift the ramp. He sustained injuries to his back (including spine), right hip and left knee. He also claimed to have sustained aggravation, acceleration, exacerbation, or deterioration of a disease.
The applicant claimed weekly benefits from 1 December 2020 to date and continuing; and the sum of $31,142.85 in respect of 21% WPI as a result of injury to his thoracic spine; lumbar spine; right lower extremity; and left lower extremity.
The respondent lodged its Reply on 22 February 2023.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained injury to his thoracic spine, right hip, or left knee.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing on 21 April 2023. Ms Grotte of counsel, instructed by Mr Santone, appeared for the applicant, who was present. Mr Stockley of counsel, instructed by Mr Mitras, appeared for the respondent. Ms Cuyca of EML was also present.
The Application was amended to delete the claim for weekly benefits.
The respondent objected to parts of the report of Dr W G D Patrick, who was qualified by the applicant, dated 2 December 2022. This comprised paragraphs seven, eight and nine on page two of the report, wherein Dr Patrick commented on the evidence of Dr Frank Machart and the dispute notice issued by EML.[1]
[1] Page 32 of attachments to Application.
The respondent submitted that the comment made by Dr Patrick went beyond the scope of an independent medical opinion. The applicant did not disagree with this submission.
For reasons given at the hearing, and which were recorded, paragraphs seven, eight and nine of Dr Patrick’s report were redacted. I have had no regard to them.
The parties agreed that, regardless of the outcome of the dispute as to injury to the applicant’s thoracic spine, right hip and left knee, the medical dispute as to impairment as a result of the accepted injury to his lumbar spine is to be referred to a Medical Assessor, who is to be provided with all of the documents in evidence before me.
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)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 3 March 2023, and attached documents, filed by the respondent, and
(d)    Application to Admit Late Documents dated 6 April 2023 and attached document, filed by the respondent.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Chris Kokontis

The applicant’s first statement is dated 16 January 2023.
On 14 February 2005, he had just finished loading a truck, which was about to depart to deliver goods to the aircraft. As he was leaning into the truck, the pneumatic powered rear roller door came down on his upper back, on the right side, just as he was bending forwards and moving upwards to lift the ramp.
He later realised his workmate had released the truck handbrake, which automatically activated the door.
He was pinned down on the floor of the truck and could not move out. He screamed for help and tried to extricate himself, but it was too hard. Two other workers arrived to pull him out.
He received some compensation for this injury in 2005 but was able to return to work approximately 6 to 12 months after the accident.
He initially reported the incident to Qantas management and was sent to Green Square Medical Centre, where he was given paracetamol or Panadol and told to return to work.
On returning to work, he continued to have pain, and in particular stiffness, in his back. He was finding it difficult to perform his duties and walk easily. About four hours after the accident, he developed numbness in his right leg. He had similar problems in his left leg.
He consulted his usual general practitioner (GP), Dr Macarounas, who certified him unfit to work for one month. X-rays of his upper back were arranged, and he was sent for physiotherapy in Marrickville. His medication was paracetamol and Nurofen.
After about one month he returned to work. He was a casual part-time worker. Carol Rogan, the return-to-work officer, put pressure on him, his doctor and physiotherapist for him to return to work. He considered he was not ready to return to his normal duties but felt obliged to do so.
His job as ASO officer was to drive a 10 tonne truck and supply planes with catering. It was fast paced and there was always a short turnaround between flights.
He was required to lift over 30kg to 40kg units and push and pull 70kg to 100kg trolleys and food carts. It was physically demanding work.
Until 2016, he tried to explain his situation to management. They did not respond until a position as a runner became available. The job was lighter, and he elected to take it on. It was much better as it involved taking extra meals onto flights.
As he could not sit and stand as required, he was unable to do his job without difficulties, and he had pain in his back. Since his accident in 2005, he has had consistent issues with his back.
He last worked on 5 November 2020. He was struggling to perform his duties at that time, because of the pain he was feeling.
His symptoms had never resolved, and he had tried various ways to treat the pain and discomfort in his legs and back.
He believed his condition had worsened, and in particular his right leg. He had increased numbness in his right leg (which he considered was getting worse) and particularly his right thigh, which affected the way he walked, particularly up or down stairs, or for long periods. The pain in his back was slightly worse, and he suffered significant stiffness in his back.
Over the years, he had tried to favour his right leg, but had recently developed pain in his right hip. If he did too much, or had a hard day at work, he suffered pain and stiffness in his back and numbness in his right leg.
Since Dr Macarounas retired in 2018, he had not had a regular GP. He had recently consulted Dr Leslie Vago about his injury.
The applicant made a further statement dated 5 April 2023. Much of it is directed to his claim for weekly benefits and is not relevant.
He took medication, including paracetamol, Panadol, and Nurofen, on a daily basis, and used heat packs and ice packs.

Medical evidence

Immex Green Square

The applicant presented on 14 February 2005. His injury was described as “bruising on back”.
Dr John Kyriazis recorded that the applicant was at work as a truck driver when the back door automatically trapped him, “crushed back right leg”.
The applicant had no paraesthesia and mild back pain. There were superficial abrasions on his right shin. Dr Kyriazis recorded red marks, “? burn like” on the applicant’s thoracic spine. There was “mild tenderness only”. The applicant had good movement of his neck, thoracic spine, and lumbar spine.
Dr Kyriazis diagnosed soft tissue injuries of the back and leg. He issued the applicant with a WorkCover NSW medical certificate. He recorded that “truck back door crushed back”.
The diagnosis recorded was “abrasions on right leg, mild back pain”. The applicant was certified fit for pre-injury duties. His fitness for work was to be reviewed on 18 February 2005.
There are no further entries related to this injury.

Marrickville Metro Medical Centre

The Centre’s records commence on 6 September 2004.
It is unnecessary that I refer to every entry. I have extracted those that may be relevant to the dispute.
On 27 April 2017, Dr Andrew Chapin recorded fevers, lethargy, muscle aches and pains, sore throat, and nasal congestion. He noted “feeling run down past few weeks. Doing 20hrs overtime a week. Works for Qantas driving catering trucks”.
On 17 July 2017, Dr Chapin recorded a history of cough, sputum, sore throat, and nasal congestion.
On 20 July 2017, Dr Chapin recorded that the applicant was starting to feel a bit better. He went back to work yesterday. “13 hr shift, a lot of lifting, manual labour.” He had woken feeling worse, “tired, no energy”, and with upper respiratory tract symptoms.
On 4 September 2017, Dr Chapin recorded that the applicant had done 13 hour shifts on Saturday and Sunday. He “woke feeling tired and achy…slight sore throat, slight cough”.
On 22 March 2019, Dr Chapin recorded that the applicant felt lightheaded and had a sore throat. He had been working very hard, 12 to 14 hour days. He worked on the tarmac driving trucks.
On 7 February 2020, Dr Jonathan Boey recorded that the applicant had been working hard recently. He was exhausted and needed the day off.
On 10 February 2020, Dr Boey recorded that the applicant had been “real busy at work over the weekend. Wild weather and double shift. Day off.”

Dr W G D Patrick – general, vascular and trauma surgeon

Dr Patrick reported first on 21 December 2021. He had been provided with an unsigned and undated statement, which included reference to an injury on 15 February 2007 to the applicant’s right calf muscle.
Dr Patrick recorded a history that the applicant was leaning down and forward into a truck, when suddenly its rear roller door, which was pneumatically powered, came down onto his right-sided back (thoraco-lumbar spine). He was pinned down and could not move at all. He was screaming and not able to extricate himself. Two other workers assisted.
The applicant was off work for a “full six to 12 months”. Dr Patrick opined that it appeared that the doctors at Green Square did not understand the serious nature of the accident.
The applicant returned to work the same day but could not carry out his duties. His back was stiff and painful. He was aware of worsening numbness, initially in the right leg, but also coming on strongly in the left.
The applicant “felt he had no alternative” but to see Dr Macarounas. He “appropriately” certified the applicant to be off work for at least a month. X-rays were taken of his upper back, and he was sent for physiotherapy. He got back to work after a month.
Dr Patrick recorded that the applicant, his GP, and physiotherapist were being pressured.
Mr Kokontis felt he was not ready to return to physical work, “certainly not his normal duties, but he felt that he had no option”.
The applicant was having great difficulty with his duties, largely because of back pain with effect on the lower limbs, with some neck stiffness. He continued with physiotherapy, but this was ceased by the insurer after “just a few months”. He was aware of some hip pains and pains at the knees, somewhat worse on the left.
Subsequently, the applicant was having difficulty walking distances, which was never the case before. “Somewhat extraordinarily”, he had not been sent for MRI of the thoraco-lumbar spine.
The applicant had last worked in November 2020, and was made redundant on
1 December 2020.
Since Dr Macarounas retired, the applicant had been seeing Dr Vago. He recalled having MRI of his back about 17 years ago, and there was some abnormality at L5 “or thereabouts”, but he was able to fulfil his duties satisfactorily until the “serious workplace injury” of
14 February 2005.
The applicant complained of ongoing thoracic and lumbar spine symptoms. He had a period where he had difficulty feeling his legs and feet. He was aware early on of sharp pains radiating through the hips, mainly on the right. He had had difficulty with his knees since this accident, with painful left knee, more so than the right.
The applicant had difficulty with bending, squatting, and kneeling. There were periods when his back flared up, causing significant anxiety and dizziness. He was prone to headaches and had intermittent neck discomfort. He “really needed” a less stressful job. He told
Dr Patrick he would be seeing Dr Vago for progress MRI of the thoraco-lumbar spine.
Dr Patrick drew attention to paragraphs 9 to 15 of the applicant’s statement. The early management of his injuries was “certainly not ideal”.
Dr Patrick diagnosed significant ongoing muscular guarding at the thoracic spine. At the lumbar spine the applicant satisfied the criteria for assessment as DRE category III, with demonstrated left lower extremity radiculopathy. He satisfied criteria for restriction in range of active motion at the right hip, and readily demonstrated mild collateral laxity at the left knee.
Dr Patrick opined that the applicant may require right hip replacement, and limited lumbar spinal surgery.
Dr Patrick assessed 21% WPI, comprising 5% WPI as a result of injury to the thoracic spine; 11% WPI as a result of injury to the lumbar spine; 5% WPI as a result of injury to the right lower extremity (hip); and 3% WPI as a result of injury to the left lower extremity (knee). The applicant fell into the category of “seriously injured worker”.
Dr Patrick next reported on 2 December 2022.
Dr Patrick had been advised by the applicant’s solicitors that there was an issue as to the cause of injury to the thoracic spine, right hip, and left knee. He professed to be “somewhat shocked” at the attachments to the s 78 notice. The applicant was a “very genuine individual”.
Dr Patrick was “acutely aware” that he examined the applicant some considerable period after the “serious workplace accident” and had assessed him in regard to crush injuries to the upper back and lower back, with some effect on his hips and knees. He had noted that about four hours after the accident the applicant was aware of significant numbness in the right leg initially, and soon after in the left.
Dr Patrick reiterated that this was a “serious workplace accident”, as he had outlined in his previous report. He had noted that the applicant was off work for 6 to 12 months. The applicant had been made redundant. There had been strains on the family, “quite understandably”. He had early complaint of ongoing back symptoms at the thoracic and lumbar regions. The cervical spine was “spared”.
Dr Patrick “[stood] by” his assessment of 21 December 2021. Little had changed, except that the applicant was “unfortunately not working now”.
Dr Patrick concluded that the applicant was a “genuine injured worker deserving of the 21% WPI I believe”.
Dr Patrick provided a supplementary report, dated 17 December 2022.
Dr Patrick noted that the relevant accident was solely that of 14 February 2005. He repeated the description of the event that he had previously recorded.
The applicant was able to get back to “some degree of meaningful work by about six months post-accident but the whole year was not good for him”.
“Somewhat extraordinarily”, the applicant on the day of the accident was “appropriately sent” to Green Square Medical Centre where “somewhat amazingly” he was given paracetamol and told to return to work. This was “clearly very inappropriate management given the circumstances and the nature of the accident”. The applicant was in pain, and “very much aware of stiffness in the back and he was having difficulty walking”. He was aware of numbness in the right leg as early as four hours after the accident, when he was back at work, and had similar difficulties with his left leg and back pain.

The applicant was “clearly not ready” to return to work but felt obliged. “It was all a difficult time”. He had difficulty sitting and standing. He was unable to do his job properly because of back pain in particular. He also had pain in the lower limbs, and with time was very much aware of right leg pain, pain at the right knee and thigh, and with the passage of time developed significant pain in the right hip.
Dr Patrick believed these were “consequential injuries related to the 2005 accident”.
The applicant’s family had “suffered considerably” as a consequence of the workplace accident. The applicant felt that at the time of the consultation with IME (independent medical examiner) Dr Frank Machart he had been totally dismissive of what he had to say, and the consultation was over within 20 minutes at most.
Dr Patrick opined that the applicant’s symptoms and disabilities were as outlined in his statement of four numbered pages and 25 relevant paragraphs.
Dr Patrick finally reported on 4 April 2023.
Referring to his previous report, in which he opined that the applicant had “consequential injuries”, he clarified that the sentence would be more appropriately worded as “I believe that the injuries are a consequence of the 2005 accident”.

Dr Frank Machart – orthopaedic surgeon

Dr Machart was qualified by the respondent and reported on 7 July 2022.
Dr Machart recorded a history that the applicant was injured when a co-worker let go of the handbrake on a truck. The roller door pinned him to the floor.
The applicant was assessed at a medical centre on the same day. He took Panadol. He tried to go back to work. He could not feel his legs. He was off work for three to six months. Treatment was conservative. He went through light duties and returned to normal work.
The applicant continued similar work in the 18 months before he was made redundant in 2020. The work was lighter, and he was not working with medical restrictions.
Since he took redundancy, the applicant’s symptoms were worse, without additional injury. He had been seeing his GP. He had not had scans. He took occasional Panadol. He did not think he could return to work in the same capacity.
The injuries described were to the mid back, lower back, neck, left leg, and left knee. The applicant complained of headaches; neck pain; lower back pain; intermittent numbness in both thighs; left knee pain, medial and lateral; depression; and poor sleep.
The applicant’s walking capacity was 20 minutes. He was unable to sit for lengthy periods. He had paid for lawn mowing for the last five years. He did housework as best he could. He did not go fishing because of inability to sit for lengthy periods.
Dr Machart found tenderness in the lumbosacral areas, with diminished movement. The applicant had mild tenderness in the mid thoracic region over several segments, “generally stiff”. The applicant had no specific point tenderness in the cervical spine, but diminished movement.
The applicant’s left knee was essentially normal, although there was mild muscle wasting in the quadriceps. There was symmetrical range of movement in both hips, with no specific hip pain. Rotation of the right hip caused lower back pain.

100.Dr Machart had been provided with Dr Patrick’s first report. He commented that Dr Patrick’s diagnosis was not clear. Pathology of injury is important, not only for assessment of WPI, but for the purpose of deductions. The description of signs and symptoms needs to be correlated with WPI.
101.Dr Machart noted that the GPs’ records from 2008 showed multiple consultations, none of which was concerned with any of the symptoms reported to him. He noted the consultation on 10 February 2020, and that the last consultation was on 19 November 2021. He also noted the applicant’s statement dated 22 March 2022. (There is no statement of this date in evidence).
102.In the absence of confirmatory medicals or X-rays, Dr Machart was unable to provide a precise diagnosis of the specific pathology of injury in relation to the incident in 2005.
103.Based on the evidence he had, Dr Machart opined that the most likely diagnosis was soft tissue injury to the thoracic spine, lumbar spine, and left knee. It was difficult to say what the residual pathology was. The absence of medicals or investigations for more than 15 years was not in favour of the injury causing structural derangement, [which was] responsible for the self-reported deterioration in the last couple of years, especially since the applicant stopped working.
104.Dr Machart noted that Dr Patrick did not establish a diagnosis. He compiled symptoms, as reported to him, and did not correlate them with contemporaneous evidence. It was not clear what objective evidence he had, of what injury, or what pathology there was, how the symptoms reported correlated with the injury, and the reason for the alleged deterioration since 2000 [sic: 2020].
105.Dr Machart opined that it would be difficult to agree with Dr Patrick that there was substantial pathology in the lumbar spine, caused by the injury, which caused DRE category III and impact on activities of daily living, when the applicant worked unrestricted until 2020. Deterioration was noted subsequently. The reasons for the deterioration were not confirmed in medicals or investigations.
106.The lack of medical documentation of ongoing symptoms suggested to Dr Machart that the applicant’s pathology had resolved. Based on his self-reporting today, there was a suggestion there may have been internal derangement of the lumbar disc. Dr Machart did not see evidence of radiculopathy.
107.Dr Machart noted that none of the symptoms reported by the applicant was documented by the doctor over several years. “Having said that”, he had not seen material covering the first 12 months after the injury, which may be useful for contemporaneous evidence.
108.Dr Machart saw no reasons for restrictions on the applicant’s capacity for work. To determine there was a work-related restriction, objective evidence of pathology of injury was required.
109.Dr Machart assessed 6% WPI, comprising 5% WPI as a result of injury to the lumbar spine; 0% WPI as a result of injury to the thoracic spine; 1% WPI as a result of injury to the left knee; and 0% WPI as a result of injury to the hips.
SUBMISSIONS
110.The submissions have been recorded, and I will summarise them briefly.

Applicant

111.The applicant submitted that there are no clinical records from Dr Macarounas, the notes I have do not deal with the work injury, and a clearer picture of his ongoing problems is found in the list of payments. He submitted it showed ongoing total and partial incapacity as a result of the back incident. He was having medical treatment and occupational rehabilitation.
112.The applicant referred to his description of the injury in his statement. His evidence that
Dr Macarounas certified him as unfit for one month appears inconsistent, but he submitted he went back to some work. He felt pressured to do so.
113.The applicant conceded that he had not mentioned in his evidence his left knee, but submitted there is evidence from Drs Patrick and Machart, who accepted he had soft tissue injuries to his lumbar spine, thoracic spine, and left knee.
114.The applicant submitted that, while he did not work with medical restrictions, he took lighter work, about which his evidence was uncontested. There is no reason not to accept his evidence.
115.The applicant submitted that Dr Machart accepted he injured his thoracic spine, and I would accept it because he was initially certified with mild back pain, and this is consistent with being struck by the roller door. The applicant submitted Dr Machart also had no difficulty accepting that he had injured his left knee, and I would also have no difficulty accepting it.
116.The applicant referred to the description of injury provided by Dr Patrick. He submitted that the vehemence of his opinion was an attempt to impress on the reader the significance of the incident. He was pinned down, the roller door struck him with some force, he was assaulted, pushed down, and pressed on the truck floor.
117.The applicant submitted that he never really recovered. He had familial obligations and did the best he could.
118.The applicant submitted that he had medical evidence to support him, based on the description of the incident. The onus was on him. He had no control over the clinical notes, which his solicitor had tried to obtain. He submitted there was no reason not to accept his evidence, that of Dr Patrick, and that of Dr Machart, at least with respect to the thoracic spine and left knee.
119.The applicant referred to the clinical notes having recorded abrasions on his right shin, which adds to the evidence of substantial force on his back, having been pushed against the truck.
120.In reply to the respondent, the applicant submitted that the description of the incident was not just what he said, but what Dr Patrick said. He had not just made it up. He submitted I would accept it was a significant injury.
121.The applicant submitted there was concurrence between Drs Patrick and Machart regarding his left knee, and the respondent could not resile from what Dr Machart said. There was enough evidence to find this on the balance of probabilities – Nguyen v Cosmopolitan Homes.[2]
[2] [2008] NSWCA 246 (Nguyen).

Respondent

122.The respondent acknowledged the importance of what the applicant told me. It submitted there was a valiant attempt regarding the dynamics of the injury. It was pure speculation and of no assistance.
123.The respondent submitted that what would have been of assistance was the applicant telling me what had happened. He said the door came down on his upper back. He said nothing about abrasions on his right leg, or about his left knee or right hip. The respondent accepted that the incident was forceful.
124.The respondent submitted that the applicant said nothing about his lumbar spine, and nor did the contemporaneous notes. It accepts there was injury to the lumbar spine, but the applicant said almost nothing about the dynamics of the injury. He stated that he had numbness in the right and left legs. There is no suggestion this was due to a left knee injury.
125.The respondent referred to the SIRA search, the medical certificate, and the clinical notes, submitting that this does not sound like the catastrophic injury Dr Patrick assessed.
126.The respondent submitted that sometimes other complaints emerge. That is not the case here. The applicant did not say that the next day he realised he had a sore knee. He could have said that had he wanted.
127.The respondent submitted there is no evidence to support injury to the applicant’s left knee or right hip. The contemporaneous evidence referred to the upper back, that is the thoracic spine.
128.The respondent submitted Dr Machart said the applicant injured his left knee and upper back. He did not know the diagnosis and nor did Dr Patrick. The assessment was based on an assumption of injury. Dr Patrick referred to the thoraco-lumbar area, but that was not what the applicant said. The respondent accepted the lumbar spine, but the injury was probably to the upper back.
SUMMARY
129.The respondent has accepted that the applicant has sustained injury to his lumbar spine and has paid permanent impairment compensation in respect of that injury.
130.The applicant’s description of the injury in his statement is that he was leaning into the truck when the door came down on the right side of his upper back. He also said that when he consulted Dr Macarounas, X-rays of his upper back were arranged. If he was leaning into the truck, it is reasonable to accept that the door probably struck him on the upper part of his back.
131.This description of the incident is supported by the contemporaneous evidence of
Dr Kyriazis. He recorded red marks, like burns, on the applicant’s thoracic spine. It is reasonable to infer that they were caused by the door striking him.
132.I accept that the applicant sustained injury to his thoracic spine as a result of the injury on
14 February 2005. In a case where the evidence is otherwise lacking, I do not have any difficulty in doing so.
133.The other disputed injuries are more problematic.
134.I have found little assistance from the applicant’s statement. He described the injury as I have noted.
135.The applicant’s evidence about injury to his right hip is that he tried to favour his right leg, in which he had worsening numbness, and had “recently” developed pain in his right hip. The statement was made in January 2023, almost 18 years after the injury. The applicant did not describe any injury to his right hip on 14 February 2005, and did not rely on a consequential condition of his hip.
136.The applicant’s statement made no reference whatsoever to his left knee having been injured in the incident relied on, and in fact, made no mention of any condition of his left knee.
137.Unfortunately, Dr Macarounas’ records are not available, as he has retired from practice.
138.The only contemporaneous medical evidence available is that of Dr Kyriazis, to which I have already referred. The only injuries he recorded were to the applicant’s back and right leg, by which I infer he was referring to the abrasions he recorded on the medical certificate.
139.Dr Kyriazis recorded the applicant’s neck, thoracic, and lumbar spine movements. There is no record of him having examined either the applicant’s right hip or left knee, which I assume he would have done had Mr Kokontis made complaints about those areas. I also assume that he would have recorded it on the certificate.
140.It is of course possible that the applicant complained to Dr Macarounas about his right hip and/or his left knee when he consulted him about the injury. However, he has given no evidence that he did so, and no evidence about any investigation of either his hip or knee, as he has about his upper back. He has given evidence about being referred for physiotherapy, but not about whether any treatment was directed to his hip or knee.
141.The records of Marrickville Metro Medical Centre, which include a period when the applicant was still employed by the respondent, contain no reference to complaints about either his right hip or left knee, or, in fact, his back. The only references to work-related complaints are about the applicant feeling tired, run down, and exhausted due to working long shifts and overtime. He took days off because he was exhausted, but there is no record of him doing so because of injury.
142.I do not accept that the list of payments of compensation made to or on behalf of the applicant provides me with any assistance in determining the dispute. It is evidence that he was paid some compensation and had some medical treatment, not of the injury/ies for which he was paid compensation or for which he was treated. The payments of weekly benefits appear to have ceased in June 2005, and medical expenses in July 2007.
143.Once again, the applicant could have given evidence about the treatment he had, and the injury/ies for which he was paid weekly compensation, but he did not do so.
144.That effectively leaves the evidence of Dr Patrick and Dr Machart.
145.I have recorded verbatim some of Dr Patrick’s evidence, as in my view he became an advocate for the applicant, and his evidence is the less persuasive for having done so.
146.Dr Patrick certified that he had read and agreed to be bound by the Code of Conduct for Expert Witnesses (Code of Conduct)[3] and the Commission’s Procedural Direction 4.
[3] Uniform Civil Procedure Rules 2005, Schedule 7.
147.Without reproducing the Code of Conduct in full, it includes, at clause 2, the following:
“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.”

148.Procedural Direction 4 includes the following:
“8. An expert witness has an overriding duty to assist the Commission impartially on the real issues in dispute relevant to the expert’s area of expertise.
9. An expert witness’s paramount duty is to the Commission. An expert witness is not an advocate for a party or the person retaining them.”

149.The applicant submitted that the “vehemence” of Dr Patrick’s opinion was an attempt to impress on the reader of his report the significance of the injury. In my view, he went some way beyond that. In any event, it is no part of his responsibility as an independent medical examiner to do so.
150.The respondent accepted, as do I, that the incident in which the applicant was injured was forceful. It clearly had the potential to cause multiple serious injuries. The issue I need to determine is whether it did cause injury other than the accepted injury to Mr Kokontis’ lumbar spine.
151.Dr Machart, like Dr Patrick, accepted that the applicant had injured his left knee. However, as the respondent submitted, that was based on an assumption of injury. The evidence, both that of the applicant, and the available contemporaneous evidence, does not establish to my satisfaction that the applicant sustained any injury to his left knee, or to his right hip.
152.The applicant referred me to the decision in Nguyen.
153.The Court of Appeal in Nguyen summarised the approach to finding the existence of a fact as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (at [55]).

154.For the reasons above, I do not feel a sense of “actual persuasion” that the applicant sustained injury to either his right hip or left knee on 14 February 2005.
155.The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 222

15 May 2023