Leafe v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Leafe v Woolworths Group Limited [2023] NSWPIC 614
APPLICANT:	Justin Leafe
RESPONDENT:	Woolworths Group Ltd
MEMBER:	Christopher Wood
DATE OF DECISION:	15 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for the cost of bilateral knee surgery pursuant to section 60 in circumstances where the applicant had previously claimed cost of right knee surgery in earlier proceedings before the Commission at a time when need for left knee surgery was already known; earlier proceedings resolved by consent award with respondent to pay for cost of right knee surgery (only) with no reference to or resolution of left knee expenses; evidence in earlier proceedings essentially identical to current proceedings; whether left knee injury consequential to an accepted right knee injury by reason of favouring that knee; whether left knee surgery reasonably necessary and whether Anshun Estoppel principles applied in the circumstances to the current application; Held – award for the respondent; on balance the applicant had failed to discharge his of proof in seeking to establish that his left knee injury was a consequence of the accepted right knee injury.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent; the applicant has failed to establish a consequential injury to the left knee by reason of his accepted right knee injury.

STATEMENT OF REASONS

BACKGROUND

Mr Justin Leafe (the applicant) was employed by Woolworths Group Ltd (the respondent) in April 2011 mostly working as a “Night Captain” and a “Duty Manager”. His role required him to be on his feet for lengthy periods as well as carrying out lifting tasks.
On 24 June 2016, the applicant had a slip and fall, landing heavily on his right knee. He received extensive treatment for his injury which was initially conservative, but he subsequently came to surgery under his treating specialist, Dr Edward Graham. He was able to return to work following surgery but found that by 2019 he couldn’t manage his duties without further aggravating his right knee pain. He took up employment with Traffic Lights New South Wales in a supervisory capacity where he did not have to stand for long periods or complete lifting or bending tasks which he had to carry out with the respondent.
The applicant says that his right knee pain never went away and he had periods of instability which required treatment on a conservative basis from time to time. Eventually it was recommended by Dr Graham that he undergo surgery. The applicant also noticed that he had started to develop pain in his left knee which he says is causally related to his original accident by reason of favouring his right knee ie; he placed added pressure on his left in carrying out tasks both at work and day to day living. Eventually bilateral knee replacement surgery was recommended by Dr Graham.
The respondent rejected his claim for the costs of knee surgery and the applicant commenced proceedings W5341/22 (earlier proceedings) in the Personal Injury Commission (the Commission) in respect of right knee surgery only. At that time the left knee replacement was also in contemplation. The respondent also disputed his left knee problems were causally related to his accepted right knee injury.
The earlier proceedings were discontinued by consent before Member Sweeney with the Member noting the respondent agreed to pay for the costs of a total right knee replacement. There are no notations appearing on the consent orders with respect to the left knee.
The current proceedings now involve the necessity for surgery to the applicant’s left knee. The respondent says that any injury to the left knee is not causally related to the now accepted right knee injury, any such surgery is not reasonably necessary and further that the applicant is estopped from bringing his current application.

ISSUES FOR DETERMINATION

The parties agreed that the issues for determination by the Commission are whether the applicant suffered an injury to his left knee as a consequence of his accepted right knee injury, whether the proposed surgery is reasonably necessary and that the current application cannot be maintained by reason of Anshun Estoppel principles.[1]
[1] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA45.

PROCEDURE BEFORE THE COMMISSION

The parties attended a preliminary conference before me on 15 August 2023. Mr Kandus, solicitor, appeared for the applicant and Ms Dunne, solicitor, appeared for the respondent.
At that time the respondent noted that the applicant had already brought a claim for the cost of bi-lateral knee replacement surgery. It was said the left knee component of that claim had been withdrawn and the consent orders were then entered. Although it had not been raised in the respondent’s reasons s78 notice[2] the respondent opined it gave rise to Anshun Estoppel principles. The respondent also maintained, consistent with the s 78 notice, that the consequential injury to the left knee was in dispute.
[2] ARD page 16.
I issued directions in the interest of procedural fairness, and to assist the Commission determine the estoppel issue, that all evidence in the earlier proceedings be filed and as the applicant said it had no objection to an estoppel point being argued, that a further s 78 notice be issued within seven days squarely raising the issue.
The matter was listed for conciliation/arbitration on 26 September 2023 before me. On that occasion Mr Carney of counsel appeared for the applicant and Mr Brendan Jones of counsel appeared for the respondent. I enquired as to the prospects of the matter being resolved and it was made clear that the respondent wished to maintain its defence to the current application. The matter necessarily had to proceed to arbitration and I am satisfied that the parties understood the issues that the Commission would decide. For completeness I note that no objection was taken by either party to any documents which had been filed following the preliminary conference being considered by the Commission nor was any objection taken by the applicant to the respondent relying on Anshun Estoppel as a defence despite it only being mentioned at the preliminary conference and formally recorded thereafter. The applicant was present throughout the conciliation/arbitration process.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and were considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    the Reply and attached documents, and
(c)    Application to Admit Late Documents from each party in accordance with the directions made at the telephone conference.

Oral evidence

There was no application made to call oral evidence or cross examine any witness.
I have also had regard to the oral transcript of the arbitration which is available for the parties on the Commission’s file.

FINDINGS AND REASONS

At the outset I note that with one exception all documents initially filed in support of the ARD were identical to those in the earlier proceedings. Much of the documentation referred to by the parties is not controversial and as Mr Carney noted in his submissions, most of the medical evidence and history concerns treatment of the right knee.

Applicant’s evidence

The applicant relies upon a statement dated 13 June 2022. The applicant’s statement does not detail at which of the respondent’s premises or outlets he worked at but records that on 24 June 2016, he was returning from the back dock at the premises where he worked and while walking towards an aisle, slipped on a grape landing on both knees, feeling instant pain, particularly in his right knee. He also says that he felt lower back pain.
The applicant consulted his general practitioner, Dr Natalie Torbalov, about four days later and after an X-ray and MRI was referred by Dr Torbalov to Dr Edward Graham who has treated the applicant ever since.[3]
[3] ARD pages 1-2.
The applicant’s treatment was initially conservative in the form of physiotherapy but by September 2016 his right knee pain was becoming worse. The applicant describes it as unbearable and says he was restricted in his daily life, being unable to keep up regular activities. He sought further assistance from Dr Graham who recommended arthroscopy which was carried out on 27 October 2016 at Westmead Private Hospital.
The applicant resumed physiotherapy treatment and continued to consult with Dr Graham. Dr Graham recommended a cortisone injection. This procedure was carried out in April 2017 and afforded the applicant some relief for about four months.
The applicant’s right knee gave way in November 2017. After his recovery from this incident, the applicant resumed physiotherapy. It would seem at this time the applicant also was having various periods of time away from work by reason his injury.[4] The applicant also consulted with an exercise physician, Dr Rachel Taylor, who recommended he take leave from work as necessary. He also received treatment from an exercise physiologist, Luke Brown, who prescribed a blood flow occlusion cuff for a period of time and was off work at this time.
[4] ARD page 7.
The applicant resumed employment with the respondent on 23 May 2018. He found that he could not cope with his duties and in the following period through to late 2019, his duties with the respondent increased beyond his physical capacity. The applicant says he was spending over 12 hours a day walking between various locations to supervise.
The applicant was continuing to undergo physiotherapy and take pain relief medication and wore a brace.[5]
[5] ARD page 5 paragraph 28.
In October 2019, the applicant stepped down to a casual role as he could no longer manage full time duties without aggravating his right knee pain. Dr Taylor apparently advised him to cut down his working hours. The applicant felt he could not continue with his employment with the respondent and commenced work with Traffic Lights New South Wales in a full-time role which did not involve him being on his feet for long periods or carrying out lifting or bending tasks.
The applicant says that from January 2021 until February 2022 he continued to experience regular episodes of pain and instability in his right knee and he was relying heavily on his left knee to support himself when completing most movements and as a result the applicant says he started to experience pain and weakness in his left knee that was worsening over time.[6]
[6] ARD page 6 paragraph 31
After consulting again with Dr Torbalov during this period he returned to Dr Graham who recommended a total replacement of the right knee. Apparently at that time on 29 April 2021 Dr Graham also administered a cortisone injection to the left knee because of the pain the applicant was experiencing.
The applicant says that he has undergone four cortisone injections to his knees under the care of Dr Graham and they provided temporary relief.
He says that in February 2022 he resumed physiotherapy because of the pain in his knee becoming unbearable. The treating physiotherapist however, primarily treated the applicant’s left knee which the applicant reports had been recommended because he needed to strengthen it.[7]
[7] ARD page 6 paragraph 36.
The applicant has a range of disabilities which he has detailed in his statement.[8]
[8] ARD pages 7-8.
Addressing the decision of the respondent to dispute that his right knee condition is causally related to his employment with the respondent, the applicant notes that his condition has never completely resolved and he continued to struggle to carry out the tasks associated with his role with the respondent.
The applicant at the time of preparing his statement said he wished to undergo the total right knee replacement recommended by Dr Graham.
No mention of the applicant’s desire to undergo left knee surgery appears in his statement and again I note the documents in the earlier proceedings are essentially identical to those filed in support of this ARD.

Applicant’s medical evidence

Dr Graham has provided seven reports variously to the applicant’s doctors, treating general practitioner and the respondent. Unhelpfully they appear in reverse chronological order in the ARD.[9] The reports broadly corroborate the history outlined by the applicant in his statement and as observed in my summary remarks primarily relate to the right knee.
[9] ARD pages 26-38.
The initial reports dated 26 September 2016 and 12 October 2016 respectively[10] outlined his proposal for conservative treatment on a diagnosis of meniscal tear by reference to an MRI scan ordered by Dr Graham.
[10] To Dr Torbalov and EML, the respondent’s insurer.
The next report dated 20 October 2016[11] confirms that the insurer had approved funding for right knee arthroscopy. Two post operative reports dated 9 November 2016 and 2 December 2016 record the applicant’s post operative progress. As at the end of 2016, the applicant was still experiencing weakness and swelling in his right knee.[12]
[11] To Dr Torbalov.
[12] ARD pages 33-34.
One year later in October 2017, the applicant attended again on Dr Graham reporting pain, swelling and clicking in his right knee. A follow up report on 18 December 2017[13] records that the applicant:
“Feels that his knee has never been right and is experiencing pain, swelling, clicking and a feeling that there is a glove on his knee.”
[13] To Dr Torbalov.
A steroid injection was recommended and approval sought for consultation with a sports medicine specialist, Dr Cory Cunningham. Dr Edward Graham’s referral letter to Dr Cunningham forms part of the material.[14]
[14] ARD page 30.
The next document from Dr Graham is dated 3 May 2021 and records the costs proposed for right knee replacement. That report is directed to the respondent.
Dr Graham, in a report dated 29 April 2021,[15] details his up to date opinion and his recommendation that knee replacement surgery be carried out. For the first time there is mention of the left knee in Dr Graham’s reports in the final paragraph of that document, as follows:
“…as an intercurrent problem he has experienced symptoms in his left knee and I have recommended a cortisone injection.”
[15] To Dr Torbalov.
I pause here to note that there is no reference to the left knee presentation being related to the right knee injury.
The final report from Dr Graham in the material filed with the ARD is his report to Dr Torbalov dated 4 March 2022 in which he records that the applicant attended on him that day about his left knee. Dr Graham records the applicant said he had pain in his left knee for about 18 months at that time.[16]
[16] Since approximately late 2021.
I have noted that the applicant has had three cortisone injections into his left knee and that the investigation reports in the form of an MRI showed severe medial compartment arthritis. Dr Graham also recommended a left knee replacement. He says the following:
“I have recommended that he have a left knee replacement. I have also recommended right knee replacement. He would like to have this done as a bi-lateral procedure which I will attempt to arrange.”

29 April 2022 report

This report which did not form part of the documents file with the original ARD is in the material in the earlier proceedings. Dr Graham responds to a letter from the applicant’s solicitors around the time they were seeking a review of the respondent’s decision to decline cover for right knee surgery.[17] Dr Graham condenses the history he had taken from the applicant and says that on reviewing the applicant on 4 March 2022, the right knee pain was progressing “and he also developed left knee pain”.
[17] See s 287A Notice below.
Dr Graham says the left knee pain had progressed to the extent that he had recommended bi-lateral knee replacement surgery. He records that MRI of left knee shows severe medial compartment arthritis. His diagnosis and opinion confirm arthritis to both knees.
After expressing his diagnosis and opinion, Dr Graham goes on to answer specific questions from the applicant’s solicitors. The Commission does not have the benefit of the questions put to Dr Graham nor was there any reason offered for why it was not part of the initial filing.
For ease of reference, I reproduce below the text of Dr Graham’s opinion in response to the questions put to him:
“Prior to 2016 he had no knee pain. I think that his injury at work is a contributing factor to aggravating the underlining arthritis in his knees.
Yes, I believe he has undergone an aggravation of his underlying condition.
Capacity for work: he is currently working but he is finding it difficult to flex the knee or to take the stairs. He is getting pain daily and has stiffness and difficulty with his knee flexion and extension.
I think that the knee pain and symptoms have been aggravated by his injury.
Currently recommendation: Bi-lateral knee replacement surgery…”
There is a further and more recent report from Dr Graham in existence which I address at paragraph 93 below.

Dr Sheikh Habib

Dr Habib saw the applicant for medico-legal purposes on 5 April 2022. He provided a report to the applicant’s solicitor. The report discloses that, amongst other things, Dr Habib had access to the reports of Dr Graham as well as those of Dr Taylor, Dr Torbalov and various diagnostic reports. The history taken by Dr Habib is comprehensive and largely in step with the applicant’s statement and histories recorded by other practitioners.
Dr Habib records that the applicant told him his right knee symptoms had worsened over time and as a result of favouring his right knee in most activities and the strain on his left knee from limping, his left knee started to become symptomatic. Dr Habib records the applicant of seeing Dr Graham at that time on 29 April 2021, with worsening right knee symptoms and also painful, swollen left knee. Dr Habib has diagnosed a severe aggravation of chondral chambers in the right knee and a severe medial meniscus tear. Those changes have deteriorated due to the acceleration of asymptomatic changes. In relation to the left knee, Dr Habib records:
“As a consequence of the right knee / lower limb condition, Mr Leafe having to rely and overstrained left knee (sic) has developed considerably symptomatic left knee as well.”
He supports right knee replacement and goes on to note that whilst left knee prognosis is uncertain:
“Noting the MRI scan of the left knee there is reported large areas of full fitness medial tibia femoral compartment chondral loss. This makes him a candidate for total knee replacement in the not too distant future.”
I note here this is exactly what Dr Graham subsequently recommended.

Dr Rachel Taylor

Dr Taylor saw the applicant in 2018 and her report directed to the applicant’s treating general practitioner, Dr Torbolov, dated 15 March 2018 has been filed.
At that time Dr Taylor noted that the applicant had struggled ever since his injury and had come to the care of Dr Graham who performed surgery in October 2016. She recorded ongoing daily pain in the right knee and generalised aching. Diagnostic material showed a radial tear in the posterior root of the medial meniscus to which she says that she “educated” the applicant in her consultation with him that while:
“…some of his symptoms can be attributed to his medial meniscal tear, he also has a lot of chondral wear that will be accounting for some of his symptoms.”
Management of his condition was discussed. Sought approval from the respondent for a SYNVISC1 Injection and for initial consultation with an exercise physiologist, Luke Bowen.
A follow up report of 12 April 2018 records him as being “50% better” and not experiencing any increase in his pain after walking up 10 flights of stairs.
Dr Taylor expressed her reluctance for the applicant to go back to 12 hour shifts as she did not feel the knee would cope with the sudden increase and load bearing. She records the applicant as having asked for modifications to his shifts. I pause here to note this is broadly consistent with the applicant’s statement.

A final report dated 3 May 2028 records the applicant having changed his job and continuing to receive rehabilitation from Luke Bowen.

Luke Bowen

Mr Bowen has provided a report dated 21 June 2018 to Dr Taylor in his capacity as a treating exercise physiologist. That report was written at the conclusion of the applicant’s exercise physiology program with Mr Bowen who records the applicant as being:
“…extremely happy with the progress he has made over the past month. The injection really helped settle his symptoms and has allowed him to perform some specific rehabilitation exercise without pain inhibition.”
He was encouraged to see Dr Taylor if he had any episodes of pain or catching in his knee.

Dr Natalie Torbolov

Dr Torbolov is the applicant’s general practitioner. In the material filed in the ARD is a recurrence of injury form completed by Dr Torbolov dated 17 March 2021. This report records the fact of the original injury and addresses the specific question as to whether the applicant’s employment with his later employer, Traffic Lights New South Wales played a role. Dr Torbalov says she is not sure as to whether the symptoms in 2021 could be regarded as a consequence of the applicant’s employment with the respondent. She recorded the applicant’s right knee giving way for the past few weeks with pain and swelling and the applicant working as a truck driver with Traffic Lights New South Wales.
She opines that meniscal repair carried out by Dr Graham “appears to have come undone and now has another tear at the tibial root attachment”.
In response to another question, Dr Torbolov says that she had not seen the applicant between 5 June 2018 and 27 February 2021.[18] She indicated that he may have had further aggravations to his knee but would need to wait for specialist surgical opinion.[19]
[18] ARD page 44.
[19] ARD page 45.
A review of the clinical notes from Dr Torbolov’s surgery corroborates the material in the recurrence of injury form. I note that between 23 May 2018 and 26 February 2021, no entries appear.
The first entry where reference is made to left knee pain is on 27 July 2021[20]. The next entry occurs 21 February 2022, as follows:
“MRI of the left knee demonstrates: degeneration of the medical meniscal posterior horn and body junction associated with an oblique tear.”[21]
[20] ARD page 113.
[21] ARD page 115.

Respondent’s medical evidence

The respondent has put into evidence its correspondence to the applicant’s solicitors following their application for review under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[22] That correspondence indicates that as at 7 July 2022, the respondent’s position was that any injury to the applicant’s left knee was not substantially contributed to by his employment with the respondent.
[22] Reply page 22.
The respondent has also filed a statement of duties for the applicant with his new employer, Traffic Lights New South Wales. This document[23] details some activities which might be regarded as heavy work including excavation by hand, use of air tool as directed and operation of plant and driving motor vehicles when necessary. It was said in submissions that the applicant was driving a truck for most of his time with his new employer but I pause here to note that any suggestion that the work with the current employer has a role to play largely falls away by reason of the opinions of Dr Coolican for the respondent which are addressed below.
[23] Reply page 6.

Dr Myles Coolican

Dr Coolican saw the applicant on 17 April 2023 and has provided a report of that date. The history taken by Dr Coolican is broadly consistent with other practitioners. He noted the surgery proposed by Dr Graham and records the applicant as having told him that as far as his left knee is concerned, that following his right knee injury:
“The left knee ‘was hurting all the time’ but it was mild discomfort that he could put up with. He (the applicant) stated that he favoured the right knee putting more load on the left but never were the symptoms bad enough to stop work until February 2021 when he missed a month of work.”
In answer to specific questions put to him by the respondent, Dr Coolican consistent with the history recorded in his report, said that the applicant indicated that the symptoms with his left knee began in February 2021 without any injury of incident.
Dr Coolican diagnosed osteoarthritis particularly involving the medial compartment. Dr Coolican notes that although the applicant’s symptoms commenced approximately three years after he left Woolworths, he did not regard the applicant’s employment with Traffic Lights New South Wales as relevant to his presentation. This is of course consistent with the respondent’s decision to meet the costs of right knee surgery despite the respondent having initially contended that the applicant had overcome his initial injury by 2018.
Dr Coolican opines that a reduction in activity levels (with the current employer) would have resulted in a lower load on the left knee and accordingly it was his opinion that the left knee symptoms are not a result of either his work or Woolworths or Traffic Lights New South Wales.
He goes on to conclude that as loss of psychical function consequent upon the surgery carried out in 2016 carried out by Dr Graham prompted osteoarthritis in the right knee, it was reasonable that the cost of the further surgery to the right knee be met by the respondent.
As far as the left knee is concerned, Dr Coolican has expressed his view that the applicant does require left knee arthroplasty and there was ample evidence that it should be done as a bi-lateral procedure.
Dr Coolican notes surgical risks but a bi-lateral procedure is in the applicant’s best interests. He concludes by saying the left knee is a private matter and a consequence of the applicant’s innate tendency to develop osteoarthritis.
Addressing the necessity for such surgery at this time, Dr Coolican lists alternative procedures such as weight loss, strengthening exercises and injections and an unloading brace or sleeve. He notes that some of these had already been tried. He concludes it is reasonable for the applicant to pursue further treatments to delay arthroplasty, but he will eventually require bi-lateral total knee replacements.
Finally, Dr Coolican addresses Dr Habib’s opinion. Unlike Dr Habib, Dr Coolican suggests that the condral wear evident two months after the accident is consistent with pre-existing osteoarthritis rather than trauma saying:
“…this degree of wear would not have occurred in that period of time.”
Dr Coolican says that this aspect of Dr Habib’s report suggests that the applicant had pre-existing osteoarthritis in his right knee at the time of the injury. He does not agree that the accident had an adverse effect on the left knee and reference made by Dr Habib to direct contusion trauma to the front of the knee would have been evident in the MRI taken after the fall; it was not. He concedes he had not seen that MRI.

Respondent’s documentation: s 78 and s 278A Notices

The documents supporting the respondent’s reply include a s78 Notice dated 26 May 2023 and a s 287A Notice dated 7 July 2022.
I note here that the latter pre-dates the consent orders entered by Member Sweeney in the earlier proceedings.
The s 287A notice confirms the respondent’s decision to decline liability for the applicant’s claim for the cost of right knee surgery.
The insurer noted that the request for review from the applicant’s solicitors had expanded to now request bi-lateral knee surgery and included the report of Dr Habib. The respondent maintained its position that the applicant did not sustain an injury to his left knee arising out of or in the course of his employment, nor was it substantially contributed to by his employment. The notice reviews the medical evidence and references Dr Graham’s comments as to his left knee pain being an intercurrent problem.[24]
[24] Reply pages 23-24.
The s 78 notice includes the following point in support of the respondent’s position:
“On 7 February 2023, EML received a letter from Dr Graham’s rooms advising ‘the right knee has aggravated the arthritis in the left knee’. He recommended a bilateral total knee replacement and provided a quote.”
How the respondent’s insurer came to have this report[25] is not entirely clear but on balance noting Dr Graham’s comments to Dr Torbolov it would appear it was part of his request for approval from the insurer to perform the bilateral knee surgery at the cost of the respondent following the consent orders in the earlier proceedings. In any event the report’s existence and its contents as recorded in the s 78 notice was not a source of controversy and it was referenced by both counsel in submissions.

SUBMISSIONS

[25] The report is not before the Commission.

Applicant’s submissions

Mr Carney commenced his submissions by referring to the applicant’s statement. He noted the difference between the circumstances of the applicant’s right knee and the claimed consequential left knee injury.
He said that when one looks at all treating material, Dr Graham’s clinical notes etc, they are primarily concerned with the right knee. Mr Carney conceded that the first mention of the left knee was in 2021 which was “quite late” but this he said is what is to be expected with a consequential injury. He said what is important to bear in mind with a consequential condition is the duties and activities that the applicant was engaging in. He noted paragraph 11 of the applicant’s statement and references to picking and packing, walking, driving scissor lifts and supervisory tasks. He drew attention to details of the applicant’s right knee injury and treatment from paragraph 12 onwards in the applicant’s statement and noted that a lot of treatment was prescribed at least until the applicant’s arthroscopy.[26]
[26] ARD paragraph 19.
He again noted pre-injury working conditions and says these were quite arduous. Mr Carney noted that the applicant returned normal duties six to seven weeks after his arthroscopy and full duties from May 2018 following Dr Taylor clearing him for work. He was unable to keep up and moved into a clerical role but was continuing to experience pain. Mr Carney says the applicant “quit” his job to take up what he thought was a lighter job with Traffic Lights New South Wales and in so far as the respondent’s current position is concerned, drew attention to Dr Coolican having concluded that the applicant’s right knee injury could not be attributed to his employment with Traffic Lights New South Wales.
Referring further to the applicant’s statement, Mr Carney drew attention to the applicant’s evidence that throughout January 2021 to February 2022 he continued to experience regular episodes of right knee pain together with instability despite there having been some improvement since his earlier surgery in 2018. Mr Carney noted that during this period the applicant also began to experience pain in his right knee when he stretched, squatted or tensed and he began to experience difficulties with his work. As a consequence he started to rely on his left knee to support him in most tasks such that he also began to experience pain and weakness in his left leg.[27]
[27] ARD paragraph 31.
Having referred to the applicant’s statement detailed above, Mr Carney then said that history was (also) the applicant’s evidence in relation to the left knee.
Mr Carney then addressed the medical evidence noting that as a consequence of an increase in symptoms the applicant was referred by his general practitioner to Dr Graham in April 2021 who formed his view that a right knee replacement was required. Dr Graham also addressed the problems with the left knee by prescribing cortisone injections at that time.
Mr Carney also noted the applicant undertaking physiotherapy treatment during that period primarily in relation to the left knee with a view to strengthening it as it was less damaged than the right. Mr Carney says this is evidence of the fact that the applicant was having to reply more heavily on his left knee as the left knee was not as damaged as the right.
Turning to the treatment reports, Mr Carney said that “really it’s Dr Graham”.
Mr Carney noted that before March 2022, Dr Graham records the applicant as having come about his left knee, reporting pain for 18 months on an intermittent basis. A knee guard was helping at that time and the applicant was also experiencing swelling. It was at that point that left knee replacement was recommended and that the applicant would like to have it done together with the right as a bi-lateral procedure which he would attempt to arrange.
Mr Carney says that the point to draw from Dr Graham’s comments at that time was it was not crucial that the knee replacements be done together and that they could be done sequentially as they often are. Mr Carney referred Dr Coolican’s comments on point as well drawing attention to risks associated with surgery with a bi-lateral procedure being really about the patient’s safety. Mr Carney said there is no absolute need for the surgeries to be done at the same time other than safety and he opined perhaps cost. Mr Carney said really it is about the applicant’s desire for them to proceed at the same time.
Mr Carney in continuing to summarise Dr Graham’s reports in reverse order noted the treatment history but said there was nothing particularly extraordinary about this but it does fill out the complete medical picture mainly involving treatment to the right knee. That having been said, Mr Carney did draw attention to Dr Graham’s 2021 report referring the intercurrent problems with the applicant’s left knee at which time he recommended cortisone injections.
Mr Carney conceded that in both the reports from Dr Graham appearing in the original ARD, he did not “tie in” the applicant’s symptoms as a consequential condition. This was done by Dr Habib in his medico-legal report. Mr Carney then said that “the other report”[28] was important as regards injury and causation and then referenced the s78 notice which also sets out the history of the applicant’s claim and referenced Dr Graham’s report of 7 February 2023 provided to the respondent in support of the left knee claim (but unhelpfully not in evidence) where he finally suggests that there is a link between the applicant’s right knee injury and an aggravation of the arthritis in the applicant’s left knee. Mr Carney diverting briefly said that as far as the Anshun Estoppel point is concerned, the applicant was only claiming the right knee at that time and this was the first mention of a relationship between the two.
[28] Apparently referring to Dr Graham.
Mr Carney in addressing Dr Habib’s report, drew attention to that doctor’s recording the duties performed by the applicant and the history of treatment[29] and referenced Dr Habib’s comments under “Further Injuries/Accidents” where he says the applicant stated to him that “due to long periods of reliance on the left leg/knee protecting the painful and injured right knee and limping, his left leg had become painful and gradual worsening”.
[29] ARD page 20.
Mr Carney noted Dr Habib’s comments under “Causation”,[30] in particular the following:
“As a consequence of the right knee/lower limb condition, Mr Leafe having to rely and overstrained left knee has developed considerably symptomatic left knee as well”.
[30] ARD page 23.
Mr Carney briefly noted Dr Coolican’s views and conceded that all the material to which I have referred above was before Member Sweeney in the earlier proceedings. He said that the evidence showed a clear causal nexus between the applicant’s original injury and his knee injury.
Turning to the Anshun Estoppel points relied upon by the respondent, Mr Carney said that Anshun is a doctrine that raises its head on a generational basis in the Workers Compensation jurisdiction and referred to the decisions in Geary v UPS Pty Limited[31] and Racing NSW v Goode.[32] Mr Carney agreed Anshun Estoppel could apply to interlocutory or consent orders and noted the nature of workers compensation claims where different claims arise at different times. He referenced s 60 claims which was the substance of the President Philip’s decision in Goode. He noted that the applicant’s left knee injury was always in dispute and was always going to have to be decided at some point, say for example in relation to a s 66 claim to which an issue estoppel could not apply. He also noted the respondent had rights to deny the claim then as it does in these proceedings and this was a significant difference to Geary.
[31] [2021] NSWPICPA 47.
[32] [2023] NSWPICPA43.
Mr Carney emphasises that it was some months after the consent orders being entered by Member Sweeney that Dr Graham finally drew the link between the applicant’s right knee and his left knee complaints. Mr Carney said that whilst it was unfortunate that the report from Dr Graham was not before the Commission, the comments therein did not appear to be controversial, and the respondent did not demur on point. This was important because while Dr Coolican had denied injury, he had found that there was a need for the operation while Dr Habib on the other hand had suggested that the applicant should consider continuing with more conservative treatment in the form of injections.
Mr Carney referred to the report from Dr Graham to the respondent’s insurer as a piece of critical evidence and it was not until that had become available that the decision was made to proceed with the current proceedings. Rather than by reference to the independent medical examination, it was the treating doctor who proposed to proceed with the surgery. The differences between Dr Habib and Dr Graham previous position made it critical to the applicant’s arguments in relation to the respondent’s Anshun Estoppel position. There was no absolute need that bi-lateral surgery proceed.

Respondent’s submissions

Mr Jones confirmed the respondent’s position; first that there was no impairment to or left knee injury consequent upon the accepted right knee injury, second that the surgery proposed was not reasonably necessary and thirdly Anshun Estoppel applied to the applicant’s claim. Mr Jones went on to say that he did not believe it was controversial that, across the records, the applicant has osteoarthritic changes in both knees and this is significant in terms of the “common sense” approach to the first leg of the respondent’s defence.
Turning to the applicant’s evidence, Mr Jones noted the applicant says he developed an altered gate as a result of relying on his left knee and suggested that notions of what the applicant says happened are expressed in the “abstract or generalities” such that the Commission could not be comfortably satisfied that the medical opinions expressed were performed in a "fair climate".
Mr Jones said there were aspects of the applicant’s statement which are problematic in so far as he strays outside recitation of what he was doing and the symptoms he was having into statements of conclusion in relation to his medical condition, for example at paragraph 12 of his statement where the applicant says he developed a consequential condition.
Mr Jones then addressed the medical evidence in the context of what the applicant claims in his statement.
The respondent drew attention to the applicant as having always seen Dr Graham for treatment not to give an opinion in relation to the casual nexus between his symptoms and his workplace accident.
After briefly addressing Dr Graham’s more recent reports, Mr Jones referenced that of 29 April 2022 as one where the doctor attempted to draw some link between the applicant’s left knee symptoms and the accepted accident. He noted this was before the Commission in the earlier matter. Dr Graham sets out the history he took from the applicant at that time and noted that left knee pain was progressing. Mr Jones pointed out that the doctor does not say why (it was progressing) in recommending a left knee replacement. Mr Jones says that nowhere in Dr Graham’s reports does he explain what is it about what the applicant has been doing in terms of his level of activity which causes him to say an increased strain of the left knee has caused it to deteriorate separate to the arthritic changes “which is a natural process unto itself”.

Mr Jones says that at its highest it is really a reasoning process where Dr Graham says “well I’m told then therefore it is”.
The respondent says that this is significant in this case because of the contemporaneous material about what we know the applicant has done.
The respondent says that Dr Habib has fallen into the same error in expressing his opinion. The respondent says that Dr Habib had not been provided with the applicant’s statement but did record that in changing jobs the applicant would no longer be doing long shifts requiring him to be on his feet. In drawing a connection between the applicant’s altered gate, by reason of favouring his right knee, Mr Jones suggests the doctor is merely accepting the applicant’s statements to him rather than embarking on a path of reasoning by himself and does not grapple with a change in the applicant’s level of activity and with that reduction in that level of activity, why is it that the applicant’s left knee continued to be aggravated.
Mr Jones emphasised the history taken by Dr Habib concerning truck driving since August 2018 and by implication less strain on the knee before noting that what the doctor fails to do in his conclusions is explain “why it is”. Dr Habib has diagnosed the pathology as the injury whereas the material shows the pathology is the underlying osteoarthritis.
The respondent suggests there is some confusion in Dr Habib’s understanding of the applicant’s history to him.
The respondent says that the Commission is left to decide in a state where the applicant describes an onset of that knee symptoms there is no particularity about what he is doing over what duration which would see it comforted in finding that Dr Habib understood the full picture and precisely what was going on such that he can say it resulted in the impairment developing as opposed to the natural deterioration of the left knee.
In concluding his analysis of Dr Habib’s report, Mr Jones like Mr Carney diverted to note that whilst there was not a need for left knee surgery, if there was, it was so intrinsically related to the right knee in the earlier proceedings which were resolved on terms to the applicant’s advantage in that funding for right knee surgery was provided, that the respondent has arranged it affairs on an understanding of the current state of affairs that it would be unreasonable to now have to meet move to this new claim.
Returning to the alleged causal nexus between the left knee injury and the accepted right knee injury, the respondent in conceding while it is not determinative, the absence of causative evidence or reference to left knee difficulties in the history relied upon by Drs Habib and Graham is emphasised by the 2021 ‘Recurrence of Injury’ form completed by the applicant on 3 March 2021.[33] This document makes no reference to a left knee injury or pain in the left knee.
[33] AALD page 14 and 15.
Addressing the treating general practitioner’s clinical notes, Mr Jones noted the first record of left knee pain was Dr Torbolov’s management plan review dated 27 July 2021.[34] The relevant entry refers to osteoarthritis to the left knee in relation to which the respondent observed the Dr Torbolov was proceeding on the basis of it being the relevant cause rather than linking it to any of the prior problems. The referral was back to Dr Graham for management of left knee osteoarthritis.
[34] ARD page 72.
Drawing further on the clinical notes,[35] the respondent notes that in seeking advice in relation to his right knee, the applicant made no mention of left knee pain and whilst that of itself may not be significant, it is important to note that after a long absence following his initial treatment, no mention is made of the left knee.
[35] ARD page 119.
The respondent noted a further clinical note entry on 27 February 2021 where the applicant evidently canvassed the re-opening of his compensation claim but no mention is made of the left knee. The respondent draws attention to the first mention of the left knee to the general practitioner being July 2021.
In respect of the applicant’s treating physiotherapist, Mr Bowen, the respondent says at the time he was discharged from Mr Bowen’s care there was only concern about the right knee.
The respondent noted Dr Taylor’s concerns about him returning to work and after referring briefly to her treatment, the respondent says that its position is that against that background more work needed to be done by Drs Graham and Habib in expressing their opinions.
Mr Jones then addressed Dr Coolican’s report[36] and the history taken by him was described as comprehensive. The respondent drew attention to the history taken by Dr Coolican that in February 2021, while working with his current employer, the applicant told Dr Coolican that his left knee buckled.[37] The respondent describes this as a new concept and not having been referred to by the applicant in his statement.
[36] Reply page 13.
[37] Reply page 14.
Continuing his analysis of Dr Coolican’s report, Mr Jones noted Dr Coolican’s conclusion that the applicant’s current employment with Traffic Lights New South Wales had not contributed to his condition but was a function of the applicant’s innate tendency to develop osteoarthritis. Against the background of the underlying osteoarthritis, in particular in the medial compartment, the respondent says that, critically, Dr Coolican grapples with the applicant’s history in answering question 7 in his report and specifically that in answering question 7 he tries to disentangle what the applicant has been through in his life.
The respondent contrasts Dr Coolican’s opinion with the applicant statement[38] where he says that in around November 2019 he commenced employment with Traffic Lights New South Wales in a full-time role, 30 hours per week, rarely having to stand for long periods and no longer having to do lifting or heavy bending such duties being easier for him to complete.
[38] Statement paragraph 30.
The respondent contends there is inherent tension in the applicant’s case because there is a proposition that he was doing a heavy laborious job with Traffic Lights New South Wales as recorded by Dr Coolican but on the other hand the applicant says that he was not doing as much. In other words, if he was not doing as much how can there be pain and deterioration in the left knee to the point he says now reached by reason of the original accident.
The respondent conceded Dr Coolican’s opinion that the applicant would require bi-lateral knee surgery in the future albeit that the left was a private matter.
Turning to the reasonableness of the procedure at this stage, Mr Jones noted that Dr Coolican had outlined a range of conservative treatments some consistent with how the applicant had proceeded to date and it would be reasonable for him to proceed with that to delay the proposed arthroplasty for as long as possible.
At 55 years of age the applicant was 16 years younger than the average and the high revision rate for early arthroplasty is noted by Dr Coolican.
The respondent says that all the non-operative treatment has not been exhausted.
In answer to a question from me at this point of his submissions, Mr Jones conceded that there was a tension between a disagreement to pay for right knee surgery and now taking a different view in relation to the left at least as far as the reasonableness of operative intervention versus conservative treatment was concerned. In conceding the “tension” in its position, the respondent noted that the Commission only has to determine the left knee on this occasion, before going on to say that Dr Coolican ought be preferred to the applicant’s doctors because he has taken a full history and provided cogent reasons as to why he reaches his opinion not merely accepting as (the respondent contends) the applicant’s doctors have done, the history conveyed by the applicant.
Returning to the reasonableness of the proposed procedure, the respondent contrasted the facts under consideration here with those in Diab v NRMA Limited[39] to point out that in this matter there has “been a lot of water under the bridge” and when regard is had to the hours worked[40] for a number of years including full time hours, on some occasions doing heavy work it seems from the records it cuts both ways in a sense that if was less arduous work then there is less strain on the knee but if it is/was heavy work then why does no one grapple with the consideration that it is related to that employment?
[39] [2014] NSWWCCPD 72; in particular [70] and [71].
[40] Reply page 55.
The respondent argues that in these circumstances, applying the commonsense test, that the applicant’s evidence must be discounted and as noted above, more should have been done by the applicant’s doctors in expressing their opinions.
In turning to Anshun Estoppel the respondent draws heavily on Goode. Mr Jones noted the respondent that the evidence before the Commission on the last occasion was nearly identical to the current evidence, including the applicant’s statement and the opinions of DrGraham, in particular his most detailed one in his report of 29 April 2022. There was also material supportive of bi-lateral knee replacement and the cost of the procedures proposed. The quote for surgery from Dr Graham dated 3 May 2021 was before the Commission[41] as was a request for surgery referred to in the clinical notes produced by the general practitioner dated 12 May 2022.[42] In other words there are at least two quotes that are before the Commission on the previous occasion.
[41] AALD page 88.
[42] ARD page 121.
The respondent posits that if the applicant is saying that only now is there sufficient evidence to link the left knee injury with the original accident, in circumstances where the evidence is identical to that previously relied upon how can this be so?
The respondent says this is not a case where there has been any substantial change and the applicant is taking semantic points in the sense of making reference to bi-lateral surgery as now definitive when before it was one (knee) then the other.
Mr Jones submitted that in circumstances where the left knee surgery is so intrinsically linked to what is occurring with the right knee, it is nigh on impossible to disentangle them. One follows from the other in the sense that the injury to the right knee spills over and influences the left. Against that background as agreement was reached reflected in the previous proceedings where the then ARD the application was discontinued on a voluntary basis that the respondent pay the cost of the total knee replacement as proposed by Dr Graham. In his letter on point Dr Graham talks about the ongoing left knee problems. The consent orders noted that reasonable and necessary ancillary costs related to the total right knee replacement would be paid and o[43]ne might speculate if the left knee is a consequential left knee condition, is that incidental to the right? But whatever might be inferred, the respondent arranged its affairs in agreeing to the orders knowing the left knee injury was there and in issue and resolved the matter on those terms. Although there was no award as there is in some of the other cases there is a consent award that is premised on certain things occurring.
The respondent also says there is no controversy that an Anshun Estoppel can apply to proceedings in the Commission and referenced the President’s discussion of the relevant principles concerning its application in Goode[44] including by reference to Geary including where a consideration of whether matters are so relevant in prior proceedings that it was unreasonable not to bring forward those claims or otherwise to pursue them to a full determination. Mr Jones noted that the principles apply not only to a defence but also a failure to assert a right.[45]
[44] Paragraphs 32 and 34 of decision.
[45] Paragraph 82.
The respondent drew from the President’s reference[46] to the decision of McColl JA in Habib that consideration is to be had to every point which properly belonged to the subject of litigation which the parties exercising a reasonable diligence, might have brought forward at the time. The respondent says there is no suggestion that the applicant was in any way precluded from properly running the left knee injury in the earlier proceedings. It appears to be a decision for statement for one reason or another.
[46] Paragraph 84.
The respondent rightly acknowledged the seriousness of shutting out a party’s ability to bring its claim in a matter as identified by McColl JA in Habib.[47]
[47] Paragraph 87.
The respondent says this is not an ordinary s60 claim. The respondent noted in Goode the applicant worker was a paraplegic with previous expenses and ongoing new expenses, it was anticipated there would be future s 60 disputes between the parties in that case. The respondent noted the President’s observation in relation to the facts in Goode that each claim would have its own facts and the like and disputes over what was reasonably necessary.
The respondent says that what was being argued in the earlier proceedings is intrinsically linked to what is being argued now, i.e. without the right knee you don’t have the left knee, it is not a separate and distinct claim.
Addressing the discontinuance of proceedings in Goode, the respondent says it can be distinguished here in the sense that where there is waxing and waning of opinion about a bi-lateral knee replacement where one is abandoned in preference to the other, suggests that it won’t be pursued or at the very least it would be unreasonable not to pursue it at the same time because of the overlapping quality.

Applicant’s submissions in reply

The applicant says that the fact that he was doing light duties with Traffic Lights New South Wales is not the proper test to determine causation rather it is the ongoing overloading of the left knee whatever he was doing. Mr Carney submitted he went to Traffic Lights New South Wales to take pressure off his right knee, it did not take the pressure off his left knee which had been ongoing.[48]
[48] ARD paragraph 31.
In relation to whether the surgery is reasonably necessary the applicant contends this is a very different case from Goode or indeed Geary. There was no attempt to deal with the left leg (in the earlier proceedings), had there been perhaps it could be said that the respondent had entered into a course of conduct but Mr Carney said that the fact is in workers compensation there are a lot of different claims that float around for a long time and without dealing with them the respondent “knows they are out there”. The respondent cannot say it has resolved the right now it is going to forget about the left. There was no acceptance of the left knee where there was an acceptance of the right that injury and causation of the left knee symptoms was always going to need to be litigated.
Mr Carney noted President Phillip’s comments in Goode about the need to avoid a situation of conflicting judgments but says clearly it was not going to happen here – there was never going to be about risk of there being a different decision and the scope of the dispute in relation to the left leg was a lot greater than that involving the right.

Supplementary submissions

As noted by opening remarks I afforded the parties the opportunity here to make additional submissions following the decision of ADP Chung BFZ v Inner West Council.[49]
[49] [2023] NSWPIC PD62.
Both parties noted that the decision of the ADP dealt with issue estoppel rather than Anshun Estoppel. The applicant therefore did not make any submissions beyond noting that the consent award in that case did not result in an estoppel as necessary findings to ground it was not made by the Member.
The respondent drawing on BFZ noted principles that were relevant to the instant proceedings. First that consent orders can give rise to an estoppel and it being necessary to look at the material across the relevant proceedings to inform what questions were concluded by a consent order. As in BFZ the controversy resolved in the proceedings which saw the original matters discontinued was intrinsically linked to the issues before the Commission in that the left knee injury treatment was as much an issue then on the medical evidence as it remains in these proceedings.
The respondent maintained its position that Anshun Estoppel arises.

REASONS FOR DECISION

Disputes involving alleged consequential injuries are common in this Commission.
The Commission is to apply the common sense test compounded in Kooragang Cement Pty Limited v Bates.[50] The correctness of this approach was reinforced by the Court of Appeal in Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi[51] where Hanly JA with Bryson JA agreed. Causation in Common Law and Workers Compensation in a common sense test which includes normative and policy evidence and for strong policy reasons is not satisfied by “but for”.
[50] [1994] 35 NSWLR 452.
[51] [2006] NSWCA 358.
Causation is fact specific.[52]
[52] See for example the High Court’s decision in Roads and Traffic Authority v Royal [2008] HCA 19.
A particular action or activity such as favouring one limb over another cannot be pre-determined as a mere “but for” or as common sense causation without having regard to all facts of the case and a medical explanation.
An important underlying issue in the applicant’s presentation which was repeatedly identified in diagnostic tests from 2016 was his pre-disposition to develop osteoarthritis.
The applicant has not sought to update or expand upon his statement from the earlier proceedings. Presumably a forensic decision was taken that the original statement was sufficient but in any event an opportunity to further assist the Commission assess the merits of the applicant’s claim and was not taken.
The applicant suffered a frank injury and as Mr Carney opined in reviewing the medical history “it is all about the right knee”. The applicant seems to have just got on with things and to his credit has remained in the workforce. His primary duties are truck driving and supervision of works although I note from his job description reference to excavation by hand and use of an air tool as directed[53].
[53] Reply page 6.
The applicant’s statement which as I have said was also in evidence in the earlier proceedings does not mention his left knee as an issue until “throughout January 2021 until February 2022”[54]. He says:
“I was relying heavily on my left knee to support myself when completing most movements. As a result, I started experiencing pain and weakness in my left knee which was also worsening over time.”
[54] Paragraph 31 of statement ARD page 5.
This is as counsel for the respondent noted a departure from narration of what he was doing and the symptoms he was experiencing. It is a matter for the doctors to draw the link or the “result” which the applicant asserts as a matter of fact.
Both counsel for different reasons in their submissions, noted the absence of recording of left knee pain in the various doctors’ reports and records. The focus was on the right knee. Mr Carney opined during submissions as to causation that the gap between the original accident in 2016 and the applicant’s presentation in 2021 (five years) is what one would expect to see, i.e. the favouring of the right knee over a lengthy period such that it eventually became a problem in the left.
With respect to that position, to merely assert that this is what one would expect to see, effectively amounts to evidence from the Bar table. Why is it what one would expect to see – why not after six months or one year? The applicant’s submissions in reply to those of the respondent took issue with the respondent’s counsel urging caution on the basis that the applicant had taken up his current employment with Traffic Lights New South Wales to take pressure off his right left and therefore any asserted deterioration in the left posed problems unless the doctors relied upon stepped through their reasoning.

In the face of a propensity to develop osteoarthritis which was already evident in 2016 without a history of reporting problems in the following years it is difficult to accept, on balance, the applicant’s proposition that favouring the right knee over a period of some five years between the date of the accident and when the applicant says he first started left knee pain is the cause of his left knee presentation. Given he started to experience left knee pain in early 2021, that a causal connection is not then asserted by Dr Graham, the applicant’s treating specialist of six years until the (missing) report to EML of 7 February 2023 is problematic. The Commission simply does not know how the doctor gets to that point after his extensive involvement treating the applicant.
As the respondent pointed out, it really only is Dr Coolican who grapples with the medical history. Beyond Dr Habib who simply adopts the applicant’s history the applicant essentially falls back on the report of Dr Graham to the insurer referenced in the 26 May 2023 s 78 notice. Why this report is not in evidence is not apparent, neither counsel could offer an explanation but it does not help the applicant’s case in the face of the respondent’s criticism that the applicant’s doctors have failed to properly grapple with the contention that the left knee is related to the original right knee accident. As I have said that Dr Graham had not previously drawn a link between the left knee and the right knee is troubling and precisely what was going on with the advancing problems with the left knee is even more problematic in that the applicant’s doctors are, as noted by the respondent’s counsel, entirely dependent upon the history given to them.
Whilst the applicant’s credit is not diminished and no doubt he holds an honest belief regarding the progress of his condition, even if it was to be considered, his lay understanding of the processes has to be seen against the background of his pre-disposition to develop osteoarthritis, in his case at an early age.
Dr Coolican if anything in comparison with many practitioners retained to provide
medico-legal opinion to insurers in proceedings before the Commission has been very even handed in his approach and while he prefers conservative treatment for now , was prepared to support the necessity for right knee surgery and eventually the left.
This is not a case of one medico-legal opinion being arraigned against the other. What may be Dr Graham’s reasoning and what was actually put to him in seeking a report or motivated the correspondence later submitted to the insurer, is not before the Commission. Certainly as noted by the respondent’s counsel, Dr Tabalov, was unsure there was any connection between the right knee and the left knee injury in the face of the applicant’s pre-disposition to develop osteoarthritis.
I am unable to find on balance that the applicant has discharged his onus in seeking to establish a left knee injury as a consequence of his accepted right knee injury. The five year effluxion of time between the original accident and first reporting the matter to doctors against the pre-disposition to develop osteoarthritis would make a contrary finding unsafe.

Necessity for surgery

Turning briefly to the reasonable necessity for surgery, the doctors are essentially agreed that bi-lateral knee surgery is necessary although Dr Coolican supports a delay to remove the need for future revision. Dr Habib was somewhat equivocal but ultimately the treating specialist Dr Graham who is the most familiar with the applicant’s condition believes it is appropriate. Mr Carney while acknowledging the risks pointed out it was up to the applicant if he wished to then undergo the surgery – again more substance might have been added by an updated statement from that prepared for the earlier proceedings.
Had it been necessary to make any findings on this point I would have found that it was reasonably necessary and appropriate for the applicant to undergo bi-lateral knee surgery.

Anshun Estoppel

While again my primary findings on a consequential left knee injury make it unnecessary, I make some observations on the Anshun Estoppel defence.
The fact that the evidence before the Commission is essentially identical to that presented in the earlier proceedings immediately raises the issue of Anshun Estoppel.
There is no doubt the respondent was fully aware that the applicant was contending that his left knee condition was related to the right knee condition for which liability was ultimately accepted.
It is the fact that the Commission was only dealing with the right knee at that time but it would be fanciful to suggest that neither party had or if properly advised ought to have had, the left knee injury in contemplation at that time. Mr Carney noted that it is unremarkable that claims in the Commission are brought at various points and it was only when Dr Graham drew the connection in 2023 that it became appropriate to bring the left knee claim.
Both parties’ submissions referenced the decision of President Phillips in Goode. The learned President’s decision provides detailed analysis of the principles regarding the application of Anshun Estoppel to proceedings in the Commission. As conceded by the parties Anshun Estoppel can apply to proceedings both primary and interlocutory. The President drew attention to the following quote in Anshun:
“…there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”[55]
[55] At [82] of Goode.
As commented by the respondent’s counsel failure to assert a right similarly can attract the principle.
Anshun establishes a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. The applicant’s counsel here urged that there could be no conflict in relation to an award to the left knee in the context of the consent orders impacting the right knee. President Phillips also noted Her Honour McColl, JA’s comments in Habib:
“…it (estoppel) operates not only in respect of points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation which the parties exercising reasonable diligence might have brough forward at the time.”
President Phillips noted in Goode that:
“the mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun Estoppel. This proposition has even greater residence in the context of workers compensation cases given the legislation has provided the statutory benefits which can, quite properly, be asserted in different proceedings”.
The President then went on to note the decision of Judge Neilson in Bruce v Grocon Limited[56] where he said the principles which are distilled from the authorities are:
“The principle in [Anshun] extends to claims as well as defences; O’Briens case in the Court of Appeal and Bowls case;
Estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted for the declaration of rights inconsistently with the determination of those rights made in the earlier proceedings;
The matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
[56] Paragraph 194 of decision.
It was unreasonable not to rely on that matter in the original proceedings such unreasonableness would depend on the facts of each particular case: Bowls case.”
Goode involved a claim for medical expenses for a paraplegic who would essentially be “in the system” for the rest of his life. The respondent’s counsel here drew a distinction between that situation and that currently before the Commission. The applicant’s counsel in reply quite rightly drew attention to the caution of Nicole, JA in Habib that:
“Shutting out a claim a party wishes to pursue, without determination of its intrinsic merit, on the ground it ought to have been raised in earlier litigation is a serious step and a power not to be exercised except after a scrupulous examination of all the circumstances”.
While it seems to me little effort appears to have been made to the expand upon the applicant’s evidence in relation to the necessity for his left knee surgery it would be a very big step for the Commission to otherwise deny the applicant the opportunity to have it determined. I am also mindful that the respondent is a not unsophisticated corporate entity, represented by a specialist in workers compensation insurer. It was legally represented and no doubt well advised beyond its own in house expertise. The respondent knew the left knee surgery was in contemplation in 2022 and in agreeing the terms of the consent orders entered before Member Sweeney it could have taken steps which in my experience are quite common in this Commission, to require the applicant to agree that his left knee injury was not causally related to the accepted right knee injury. This would have focussed minds both on what might reasonably be asserted at that time and have avoided the need for much duplication of effort and cost.
That said, having regard to equity and good conscience and the overarching purpose of workers compensation legislation, I would have made a finding that the applicant is not estopped from advancing his left knee injury claim.
I note my primary findings above that the applicant has on balanced failed to discharge his onus that his left knee injury is causally related to the accident in 2016. There will be accordingly an award for the respondent.

[2023] NSWPIC 614

15 November 2023