Mackey v Wilson

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mackey v Wilson [2025] NSWPIC 13
APPLICANT:	Ian Arthur Haumona Brightwell Mackey
RESPONDENT:	Albert Frank Wilson
MEMBER:	John Wynyard
DATE OF DECISION:	14 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim for consequential lumbar spine condition; whether failure by applicant to complain compromised his claim; whether expert evidence sufficient given that failure; Held – applicant injured right shoulder and left knee when he fell up to 2 m from a building site; lumbar spine condition identified by medico-legal expert whilst assessing the right shoulder and left knee injuries about 18 months later; it was common ground that no complaint about the lumbar spine had been made but applicant's expert identified that the altered gait caused by the left knee injury had caused the lumbar condition; the respondent's expert did not consider that opinion, although it was specifically identified for comment; Hamad v Q Catering Ltd, Hancock v East Coast Timber Products Pty Ltd, and Kumar v Royal Comfort Bedding Pty Ltd considered and applied; award applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition to his lumbar spine as a result of the injuries to his left knee that he sustained on 12 March 2020 (deemed). The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: Date of injury: 12 March 2020 (deemed). Matters for assessment: right upper extremity (shoulder); left lower extremity (knee), and lumbar spine. Evidence: Application to Resolve a Dispute and attached documents, Application to Admit Late Documents dated 19 November 2024, Reply and attached documents, and Application to Admit Late Documents dated 23 November 2024.

STATEMENT OF REASONS

BACKGROUND

Ian Arthur Haumona Brightwell Mackey, the applicant, brings an action against Albert Frank Wilson, the respondent, for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has Mr Mackey suffered a consequential injury to his back?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 22 November 2024 this matter was heard by Teams. Mr John Wilson of counsel appeared for the applicant instructed by Ms Stephanie McAnally from Messrs Shine Lawyers. Mr Paul Stockley of counsel appeared for the respondent instructed by Ms Maddy Thorne from Messrs Lee Legal Group. Mr Alex Bain appeared for the insurer.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Application to Admit Late Documents dated 19 November 2024;
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents dated 23 November 2024 for the respondent.

Oral evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

Mr Mackey was seriously injured when he was injured on a building site on 12 March 2020. The event occurred because he was standing on the edge of a slab on some formwork, which unfortunately broke off, causing him to fall about a metre and a half to land on the roof of an adjacent garage. No submissions were made as to why the claim has a deemed date.
Mr Mackey suffered injuries to his wrist, right shoulder and a severely displaced fracture in the region of the left knee involving the medial tibial plateau.
At Concord Hospital Emergency Department, studies revealed that he had sustained a traumatic right shoulder dislocation, which was reduced at Concord Hospital. Imaging demonstrated that his left knee had sustained significant pathology including a high grade medial collateral ligament tear, and a complex central tibial plateau fracture.
On 30 March 2020 he underwent a left knee arthroscopic medial meniscal repair, a medial collateral ligament repair, with LARS, (ligament reinforcement), at Strathfield Private Hospital with Dr Paul Della Torre, orthopaedic surgeon.
On 20 July 2020 Mr Mackey underwent a right shoulder open stabilization procedure under the care of Dr Doran Scher, orthopaedic surgeon at Sydney Private Hospital.
The right shoulder condition improved following the surgery and post-operative rehabilitation, although two and a half years after the surgery, when he saw Dr Uthum Dias on
18 January 2023, Mr Mackey was still suffering from right shoulder symptoms. Dr Dias is a consultant occupational physician whom Mr Mackey retained as his medico-legal specialist.
The major problem however was the left knee injury. Dr Dias recorded that the left knee recovery had been quite “plagued by recurrent hardware infection”.[1]
[1] ARD page 39.
Mr Mackey had undergone several washout and debridement procedures at Concord Hospital in October 2020 and December 2020 with Dr Della Torre.
Throughout 2020 and 2021 he persisted with physiotherapy and he trialed cortisone injections. His symptoms did not improve and on 1 August 2022 he underwent a left total knee replacement at Strathfield Private Hospital with Dr Della Torre.
Unfortunately, post-operatively, an infected left total knee prosthesis developed and in around mid September 2022, Mr Mackey was admitted to Concord Hospital where he underwent washouts of his left knee prosthesis on 17 September 2022 and again on
28 September 2022.
He was admitted to Concord Hospital for five weeks and placed on intravenous antibiotics before he was eventually discharged on 25 October 2022. On 27 October 2022 Mr Mackey had to undergo another total knee replacement at Strathfield Private Hospital, where he was kept for about six weeks to monitor for infection.
Dr Dias recorded Mr Mackey's current status as at as at 20 January 2023 as follows:[2]
“Mr Mackey continues to struggle with ongoing symptoms of pain and stiffness and discomfort affecting his right shoulder and left knee on a daily basis. His main symptoms of pain relate to his left knee which he rates at around 6 to 7/10 on the visual analogue scale. He rates his right shoulder symptoms as around 2/10 on the visual analogue scale, and reports that his right shoulder symptoms are milder, and more manageable on a day-to-day basis than his debilitating left knee condition.
Mr Mackey stated that his symptoms of pain in his left knee and right shoulder tend to be worse in cold weather and significantly affect his sleep at night.
Mr Mackey struggles to walk on flat ground for more than ten minutes at a time due to the left knee pain. His standing is limited to ten minutes at a time. Mr Mackey can sit for around 30 minutes, before getting worsening left knee pain and stiffness. He generally has to elevate his leg, after sitting for 30 minutes, to alleviate pain, stiffness and swelling in his left knee. Mr Mackey stated that he has avoided driving, since late 2021 (over 14 months), due to his symptoms of left knee pain and his reliance on heavy analgesia. He reported that he has let his driver’s license expire over the course of the past 14 months.
Mr Mackey has not been able to run or jog since the subject accident in March 2020. He estimated he has gained around 15 kg in weight over the course of the past 34 months, due to relative inactivity.”
[2] ARD pages 40 – 41.
Dr Dias conducted a physical examination of the right shoulder and the left knee. He gave diagnoses in regard to both those parts of the anatomy. He noted:[3]
“Mr Mackey struggles to walk on flat ground for more than ten minutes at a time due to the left knee pain. His standing is limited to ten minutes at a time. Mr Mackey can sit for around 30 minutes, before getting worsening left knee pain and stiffness. He generally has to elevate his leg, after sitting for 30 minutes, to alleviate pain, stiffness and swelling in his left knee. Mr Mackey stated that he has avoided driving, since late 2021 (over 14 months), due to his symptoms of left knee pain and his reliance on heavy analgesia…”
[3] ARD page 40.
Mr Mackey saw Dr James Bodel firstly on 14 April 2023.[4] Dr Bodel took a consistent history of the event and the subsequent difficulties with treatment regarding the left knee and subsequent surgical history. On examination, Dr Bodel noted, inter alia, that Mr Mackey “walks with a left-sided limp.” Dr Bodel recorded:
“….There is tenderness at the lumbosacral junction on the left side and guarding in that area and he reaches forward in flexion with his hands to the knees. He has backache at this point and also on extension with a restricted range of lateral bending to the right. Straight-leg-raising is 70 degrees on each side and limited by hamstring tightness. There is no
evidence of nerve root irritability and no clinical sign of radiculopathy in the lower limbs. There is a very restricted range of knee movement on the left…”
[4] ARD page 29.
He was asked:[5]
“3. The nature and extent of our client's injuries, including the symptoms complained of by our client and whether our client has sustained any other injuries which you have not been asked to assess.
He has had significant injuries in both areas. The surgery on the left knee was complicated by infection and the need for total knee replacement which was also complicated by infection. He is slowly settling at the moment.”
[5] ARD page 33.
Dr Bodel's diagnoses were related to the right shoulder and the left knee.
In his assessment of whole person impairment, Dr Bodel, besides assessing the right shoulder, left knee and scarring, said:[6]
“He also has a DRE Lumbar Category II level of assessable impairment in accordance with the description in Table 15-3 on Page 384 of AMA5. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 7% Whole Person Impairment rating. There is a 2% loading for interference with activities of daily living to give that 2% increase on the 5% base rating.”
[6] ARD page 34.
The medical expert retained by the insurer to assess Mr Mackey was Dr Stephen Rimmer, orthopaedic surgeon, who reported on 23 February 2022. He took a consistent history of the injuries to the right shoulder and left knee. He recorded that Mr Mackey said that his right shoulder was “good I reckon”, but that his left knee was “very sore”.[7]
[7] Reply page 2.
Dr Rimmer carried out an examination of the cervical spine, the right shoulder, both upper limbs and the left knee. He noted that Mr Mackey “walks with a limp.”
On 14 September 2023 Dr Rimmer again reported to the insurer, having further assessed
Mr Mackey on 30 August 2023. He confirmed the history of the injuries and recorded complaints of symptoms in the right shoulder and left knee. His examination again was of the cervical spine, right shoulder, right upper limbs and left knee.
Dr Bodel's report of 14 April 2023 was then before the insurer and Dr Rimmer was asked the following:
“6. We note Dr Bodel had considered that the claimant suffered injury/impairment to the lumbar spine. It is not clear from Dr Bodel’s report whether the doctor considered the lumbar spine was involved as a frank injury (sustained as a result of the fall), or as a consequential condition (secondary to the left knee injury or right shoulders injury.
a. From the history provide by the claimant, and from the materials annexed, is there any indication of a lumbar spine injury as a result of the fall on 12 March 2020?
No there is no indication of a lumbar spine injury as a result of a fall either acutely or consequentially.
b. From the history provide[d] by the claimant, and from the materials annexed, is there an indication of a consequential condition to the lumbar spine?
i. If so, what is the mechanism by which the lumbar spine was rendered symptomatic as a result of the accepted left knee injury and/or right shoulder injury.

No, there is no consequential injury to the lumbar spine.

I would like to highlight the following:
1. In my previous assessment of Mr Mackey in February 2020 he made no mention of lumbar spine symptoms.
2. Throughout the entire clinical notes of his consultations with his general practitioner there is no reference to lumbar spine symptoms and/or subsequent radiological investigations of this anatomic site.”

On 25 September 2024 Dr Bodel gave a supplementary report.[8] Dr Bodel did not assess
Mr Mackey in person and relevantly commented on the opinion of Dr Rimmer. Dr Bodel said:[9]
“Dr Rimmer is also of the view that the lumbar spine is “not applicable”. I note the lengthy statement prepared by your client which confirms that in fact the back pain did come on gradually over a period of time because of the abnormal gait pattern and the very complicated history in regard to the management of the knee injury. At Item 101 on Page 7 of the signed statement, your client confirms what you have indicated in the letter of instruction that “I never thought to complain or attend on my treating providers for my back. I thought that the pain that I was experiencing in my back was part of
the left leg injury and did not think to mention it to my doctors”. I can accept that, although it is unusual not to make mention of it, but I am still satisfied that the abnormal gait pattern has caused the aggravation, acceleration, exacerbation and deterioration to the underlying degenerative change in the lower part of the back in this man who was 55 years at the time that I assessed him. This is at the very least a consequential injury caused by the aggravation, acceleration, exacerbation and deterioration of the disease process and therefore I disagree with Dr Rimmer’s assessment in this circumstance.”
[8] ARD page 25.
[9] ARD page 26.
He stated in answer to specific questions:[10]
“1) Your opinion on whether our client has sustained a lumbar spine injury in circumstances where employment was the main contributing factor to the onset of the injury or the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the disease injury.
This gentleman has a consequential injury to the lower part of the back for the reasons outlined above. He has had an abnormal gait pattern because of the injury to the left knee and the very complicated treatment protocol that followed this with infection and poor outcome and knee replacement. He has suffered the aggravation, acceleration, exacerbation and deterioration to the disease process as a result of that.”
[10] ARD page 26.
Dr Rimmer gave a third report on 31 October 2024. He said:
“Thank you for your fax dated 21 October 2024. I have now assessed Mr Mackey on two occasions, i.e., 23 February 2022 and 30 August 2023, where on each occasion there was no mention of a lumbar spine condition/symptoms either acutely or consequentially as a result of his workplace injury.”
Dr Rimmer was asked about Dr Bodel’s opinion that the abnormal gait pattern had caused the lumbar spine complaints.
Dr Rimmer replied:[11]
“I do not believe he has any lumbar spine complaints given the reasons above.”
[11] ALD dated 22 November 2024 page 2.
Mr Mackey conceded that he had made no complaint regarding his back condition when he was seen by Dr Bodel on 24 March 2023. Mr Mackey said in his first statement of
10 September 2024:[12]
[12] ARD page 6.
“96. Since my accident, I have experienced an emergence of back pain.
97. My walking posture was altered due to my injuries, particularly the injury to the left knee.
98. Due to the significant amount of treatment I had for my left knee and right shoulder, my back was not a primary concern.
99. I have also taken heavy painkillers during this period in which my back pain was not as noticeable. Since my accident, I have experienced an emergence of back pain.
100. Following my last surgery on 27 October 2022 to my left knee I was made to use crutches and a walking stick to assist with my mobility. This has aggravated my back which has been made to compensate for the weakness in my left leg.
101. Due to the more serious injuries to my left knee and right shoulder I never thought to complain or attend on my treating providers for my back. I thought that the pain I was experiencing in my back was part of the left leg injury and did not think to mention it to my doctors.
102. As the pain in my left leg slightly improved, my back pain has remained.
103. My back pain is something that has progressed overtime. It is something that I have self-managed with home-based exercises and more recently trips to the hot springs.
104. I experience great pain when I put too much pressure on my left knee from walking and need to take regular breaks and stretch out my back after short periods of time.
105. On 24 March 2023, I underwent an IME appointment with Dr James Bodel. He immediately observed that I had problems with my back and made an assessment.”
Mr Mackey made a further statement on 18 November 2024, in which he repeated the detail of his left knee treatment. He then said:^[13]
[13] ALD 19 November 2024 page 2.
“34. From the period of 30 March 2020 to August 2022, it is demonstrated that my left knee was infected on numerous occasions, requiring me to take painkillers and antibiotics to relieve the pain.
35.    As I note that during this period, I was walking bone on bone as there was no cartilage left in my left knee.
36.    Due to the change in my gait pattern, I favoured my right leg to compensate for the pain and hinderance of my left leg. This is what I believe caused the pain in my back, where my left leg was my focus at this time.
37.    I did not realise my back was sore due to the strong painkillers and antibiotics I was taking to relieve the pain from my left leg infections.
38.    The strong painkillers I was taking during this time included Tramadol, Endone, Oxycodone.
39.    As noted in my original statement at paragraph 89, I currently take Tramadol to manage the pain in my left leg and back.
40.    If I walk a bit too far, I know I’ll pay for it.
41.    I still walk with a gait and continue to work through issues with bending and standing due to my back.”

SUBMISSIONS

The applicant

Mr Wilson submitted that on consideration of the thorough history given by Dr Dias it was clear that Mr Mackey had suffered a significant injury in his fall and had undergone treatment that was evidently not normal. He said this had resulted in an altered gait for two and a half years and was continuing, as Mr Mackey said in his statement. Mr Wilson acknowledged that no complaints about the back were made in any of the contemporaneous material for the reason he was suffering from his “diabolical situation”, which involved his continual infections over a long period of time.
Mr Mackey's focus was, not unsurprisingly, on his knee. Mr Wilson said that is why there was no complaint of a back condition in Dr Bodel's first report.
Mr Wilson referred to both Mr Mackey’s statements, which he said explained the reason why no complaint had been made. Mr Mackey had been on Tramel, Endone and Oxycodone which were debilitating medication.
Mr Wilson submitted that the dispute was between Dr Bodel and Dr Rimmer. Dr Rimmer’s description of Mr Mackey’s symptoms in his second report dated 14 September 2023 following the left total knee replacement as being “pain mild medication” was plainly contradicted by the evidence of Mr Mackey himself and also by the evidence of Dr Bodel and Dr Dias.

When quite reasonably asked by the respondent’s solicitors as to what Dr Rimmer would attribute Mr Mackey's lumbar spine complaints to, Mr Wilson submitted that he did not answer the question, simply saying that he did not believe there were any lumbar spine complaints.
In the circumstances Mr Wilson submitted I would accept Dr Bodel's report.

The respondent

Mr Stockley opened by giving a helpful chronology of events:
·23 February 2022 first consultation with medical legal expert (Dr Rimmer);
·1 March 2023 Mr Mackey solicitors wrote to Dr Bodel;
·14 February 2023 Mr Mackey assessed by Dr Bodel who included the lumbar spine assessment;
·26 June 2023, letter of claim;[14]
·30 August 2023 Dr Rimmer’s second consultation (report issued 14 September 2023);
·30 October 2023 s 78 notice indicating that it was not clear from Dr Bodel's second report whether he considered that the lumbar spine had been injured or whether it was a consequential condition, (which Mr Stockley submitted was a fair comment), and
·25 September 2024 Dr Bodel’s second report regarding the back. Mr Stockley said there is no complaint regarding the back to either Dr Dias or Dr Rimmer. Mr Stockley said that Dr Dias had been qualified for forensic purposes and gave a detailed report including a consideration of all the material that had been forwarded to him, whereas Dr Bodel had not done so and his attention to detail was not as thorough.
[14] ARD page 11.
Mr Stockley referred to the list of symptoms noted by Dr Dias. Dr Dias had, Mr Stockley submitted, given Mr Mackey every opportunity to complain about his back in obtaining a thorough understanding of all the ailments that the injury had caused. It was significant,
Mr Stockley said, that there was no back complaint recorded.
It was difficult to accept therefore that Mr Mackey was beset by back symptoms.
Mr Stockley said that Dr Dias had given a detailed examination and diagnosis and, as at January 2023, there were no lumbar symptoms detected or complained about. Moreover,
Mr Stockley submitted, there was no evidence from the applicant as to when he started to develop pain in his back, and at best he “experienced an emerging back pain” in his first statement, and in his second statement he made no further explanation. Mr Mackey said he was taking strong painkillers, but did not say when or if he had stopped. Mr Stockley said there was no way of putting a date on when the symptoms came on.
Mr Stockley submitted that whilst there was a “wealth of treating doctors,” nowhere in the contemporaneous material, were there any complaints about the back. The only doctor who supported the claim was Dr Bodel, to whom, Mr Stockley said, Mr Mackey had not been sent to for a back assessment. It can be seen that Dr Bodel evinced that complaint about his back on his own initiative, Mr Stockley submitted.
Dr Bodel in his first report elicited complaints of symptoms in the right shoulder and the left knee, he examined Mr Mackey and noted complaints on forward flexion, but Mr Stockley noted there was no spontaneous complaint during the consultation.
Mr Stockley also observed that there had been no X-rays or other investigations taken of the back and Dr Bodel, when asked whether there had been any other injuries, simply answered that there had been “significant injuries to both areas” by which he meant the right shoulder and left knee.
Mr Stockley noted the assessment of the lumbar spine under the appropriate guidelines but submitted that Dr Bodel had not expressed himself in his first report as to the basis of that assessment. It was not until his second report that he gave such an explanation.
That explanation was unsatisfactory at that stage regarding the back, Mr Stockley said.
The second report, Mr Stockley also observed, was a document review. Dr Bodel referred to a statement that he had been given and highlighted the parts that he had read, but
Mr Stockley submitted:
·        nowhere else in the evidence did anyone identify a condition of degenerative changes in the back or for that matter complaints about the back;
·        there was no radiological investigation of the back;
·        there was no identification of what was being accelerated, exacerbated, aggravated or deteriorated;
·        Dr Bodel failed to comply with the expert opinion requirements that were applicable in the Commission, and
·        Mr Stockley referred to Hancock v East Coast Timber Products Pty Ltd[15] and Kumar v Royal Comfort Bedding Pty Ltd.[16] There was no insight into Dr Bodel’s opinion, said Mr Stockley. If an expert simply agreed with an account or description of a claimant’s symptoms, then an expert's opinion was not required, Mr Stockley submitted.
[15] [2011] NSWCA 11.
[16] [2012] MSWWCCPD 8.
Mr Stockley said that Dr Bodel's report did not comply with the essential requirement that it explained to a lay observer how the facts justified the assumption made.
Mr Stockley said that Dr Bodel’s explanation for the back condition – Mr Mackey’s altered gait - was not supported by any evidence that Mr Mackey was walking long distances.
He referred to DP Roche’s exposition of expert evidence in the context of the Hancock decision in Kumar. Mr Stockley referred to [59] of the decision, in which DP Roche acknowledged that Mr Kumar, whilst his evidence was less than ideal, had given an unchallenged account which was not implausible - and he had sought medical treatment.
Mr Stockley, in reference to Kumar, submitted that there were no “helpful insights” in the current case to assist Mr Mackey as had there been identified by DP Bill Roche . There had been no medical treatment, and the question had been addressed by Dr Rimmer.
Dr Rimmer’s reports had been criticised, Mr Stockley acknowledged, but he noted that
Mr Mackey indeed had made no complaint about his back, and there was no clinical evidence considered by Dr Bodel, which Dr Rimmer had before him.

Mr Wilson in reply

Mr Wilson submitted that the evidence showed both that Mr Mackey was suffering from continuing symptoms and that he was also active. He referred to the applicant's statement of 10 September 2024, where Mr Mackey described the complaints he had made regarding his knee pain and associated walking difficulties since he had relocated to New Zealand in November 2023.
Mr Wilson submitted that Mr Mackey was thus still active and that his back symptoms continued because of his left leg problems. Mr Wilson said that it was correct that Dr Bodel did not examine Mr Mackey on 25 September 2024, his report being a file review.
However, Mr Wilson submitted that Dr Bodel had the benefit of Mr Mackey's first statement at that time. As it had not previously been available to Dr Bodel, (the statement being dated
10 September 2024) there was no basis for the respondents' submission that Dr Bodel's opinion was incorrect.
Mr Wilson contrasted Dr Rimmer's opinion, which did not refer to Mr Mackey's statement at all, and whose opinion was compromised by that failure. Mr Mackey’s later statement of
18 November 2024 confirmed both that he was still active, and that he continued to take Tramadol, Mr Wilson said.
Mr Wilson also relied on Mr Mackey’s 18 November 2024 statement, in which Mr Mackey said that since his second left knee replacement on 27 October 2022 that his symptoms had developed gradually since that time.
Mr Mackey had not complained earlier, Mr Wilson submitted. Dr Dias' opinion was given in March 2023, soon after Mr Mackey's surgery.
Dr Bodel did not take any history, but in his examination, detected a restriction which caused him to give an assessment of the back condition. He submitted that it was Mr Mackey’s statement of September 2024 which explained the onset of the back condition.
Dr Rimmer was not able to do so as he did not have that evidence, Mr Wilson said. When he was asked in his short statement of October 2024, he did not answer the question that his instructing solicitors had asked him as to the effect of the altered gait, committing himself to what he had said in his earlier report that when Mr Mackey was examined by him there was no complaint about the back.
Dr Bodel's report, with that statement, had been uncontested, Mr Wilson argued.

Discussion

It is common ground that when Mr Mackey was examined by Dr Bodel on 14 April 2023 he had not made any complaint to anyone about his back condition. Indeed to Dr Bodel he complained only of symptoms in the right shoulder and left knee. However, Dr Bodel also noted that whilst examining Mr Mackey, there was “tenderness at the lumbosacral junction on the left side and guarding in that area and he reaches forward in flexion with his hands to the knees. He has backache at this point and also on extension with a restricted range of lateral bending to the right…”
Dr Bodel was asked whether Mr Mackey had “sustained any other injuries which you have not been asked to assess,” which he did not directly answer, confining his comments to “both areas” having significant injuries. It is clear that he was referring to the injuries to
Mr Mackey’s left knee and right shoulder that had been referred to him. Moreover, Dr Bodel confined his diagnoses to a rotator cuff tear in the right shoulder and the left knee injuries resulting in a total knee replacement “with a poor outcome.”
However, in answering a further question regarding WPI “for each of the injuries listed” he included an assessment of 7% for the lumbar spine. It was clear that the lumbar spine was not an injury that had been referred to him – and indeed there has been no such claim at that point.
The respondent made a number of submissions about the lack of complaint. Mr Mackey had been assessed by the insurer’s expert orthopaedic surgeon, Dr Rimmer on two occasions, 23 February 2022 and 14 September 2023, and Mr Mackey’s own expert, occupational physician Dr Uthum Dias, had assessed him on 20 January 2023. He had undergone regular treatment with his GP and physiotherapist, and yet made no complaint about his back condition, which the respondent found suspicious and unlikely.
This issue must be seen in the context of the significance of the injuries Mr Mackey has suffered to his right shoulder and his left leg. The facts show that he fell between 1.5 to 2m and I have already reproduced the unfortunate treatment history that then ensued, including the recurrent hardware infection in the left knee, and the consequent left knee replacement surgeries on 1 August and 27 October 2022.
Whilst it is quite correct that Dr Bodel did not express any opinion about the causation of the lumbar spine symptoms he identified on examination in his report of 14 April 2023, there was no requirement for him to do so. He was in fact answering, albeit in a different part of his report, Mr Mackey’s enquiry through his solicitors as to whether Mr Mackey had “sustained any other injuries which you have not been asked to assess.”
Mr Stockley was quite correct that Dr Bodel’s assessment of an entitlement to compensation as expressed in his report of 14 April 2023 would not have sustained a finding to that effect, as the report offended the rules regarding expert evidence. Dr Bodel simply noted his findings on examination. He did not address the question of causation.
However, I do not accept, with respect, Mr Stockley’s submission that Dr Bodel’s second report of 25 September 2024 was similarly deficient. In Kumar DP Roche, in citing Hancock, said at [54]:
“As the Court of Appeal explained in Hancock…., what is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
Whilst there were no investigations taken of the lumbar spine, Dr Bodel’s second report set out the history provided by Mr Mackey in his statement of 10 September 2024, and accepted that history as an explanation of the cause of the back condition. Dr Bodel said, to repeat:[17]
“…..At Item 101 on Page 7 of the signed statement, your client confirms what you have indicated in the letter of instruction that “I never thought to complain or attend on my treating providers for my back. I thought that the pain that I was experiencing in my back was part of the left leg injury and did not think to mention it to my doctors”. I can accept that, although it is unusual not to make mention of it, but I am still satisfied that the abnormal gait pattern has caused the aggravation, acceleration, exacerbation and deterioration to the underlying degenerative change in the lower part of the back in this man who was 55 years at the time that I assessed him….”
[17] ARD page 26 – paragraph [30] above.
I have also reproduced other relevant parts of Mr Mackey’s statement,[18] which included:
“97. My walking posture was altered due to my injuries, particularly the injury to the left knee.
…
100. Following my last surgery on 27 October 2022 to my left knee I was made to use crutches and a walking stick to assist with my mobility. This has aggravated my back which has been made to compensate for the weakness in my left leg.
…
104. I experience great pain when I put too much pressure on my left knee from walking and need to take regular breaks and stretch out my back after short periods of time.”
[18] See [35] above.
The respondent submitted that it was “difficult to accept” that Mr Mackey had been beset by back problems in the light of the history of the matter had some support from the lack of contemporaneous complaint and from the lateness of the applicant’s statement itself.
Dr Bodel found the lumbar spine pathology that justified an entitlement to compensation on 14 April 2023, but no explanation for its onset occurred until Mr Mackey’s statement of
10 September 2024, and Dr Bodel himself noted that it was “unusual” that Mr Mackey had not hitherto mentioned it.
However, there was some support for Mr Mackey’s account that his walking pattern had altered. On 23 February 2022 Dr Rimmer noted on examination:[19]
“…[Mr Mackey] walks with a limp…”
[19] Reply page 4.
On 20 January 2023 Dr Dias noted on examination:[20]
“…Mr Mackey walked into today's consultation room with a stiff antalgic gait pattern favouring his left lower limb….”
[20] ARD page 42.
On examination on 14 April 2023 Dr Bodel noted:[21]
“but…[Mr Mackey] walks with left sided limp…”
[21] ARD page 31.
On 14 September 2023 Dr Rimmer noted “gait was normal”.[22]
[22] Reply page 10.
Leaving Dr Rimmer’s observation aside for the moment, it may be assumed that Mr Mackey was indeed walking with an antalgic gait as a result of his left knee injury and treatment, and accordingly Dr Bodel’s assumed facts can be seen to have some basis.
The question then arises as to whether Dr Bodel’s opinion that the abnormal gait pattern has aggravated, exacerbated, accelerated or deteriorated the underlying degenerative changes in the lower part of Mr Mackey’s back may be accepted. Dr Bodel accepted that Mr Mackey’s failure to mention his back symptoms was “unusual,” but nonetheless accepted the premise.
The respondent objected that there had been no investigations as to whether Mr Mackey even suffered a degenerative condition in his back. However, whilst such a question might well exercise the mind of a practitioner drafting a letter of instruction to his opposing expert - in this case Dr Rimmer – Dr Bodel’s opinion had prima facie probative weight if this opinion were not considered and rejected by expert evidence.[23]
[23] Hamad v Q Catering Ltd [2017] NSWWCCPD 6.
As noted above, Dr Rimmer advised that on the two earlier occasions that he had assessed Mr Mackey (23 February 2022 and 30 August 2023) there had been no mention of a lumbar spine problem. He said further that he did not believe that Mr Mackey had any lumbar spine complaints “given the reasons above,” which was a reference to the lack of complaint
Dr Rimmer had just referred to.
There are a number of difficulties that prevent any weight being given to Dr Rimmer’s report. In the first place, it was common ground that Mr Mackey had not complained about lumbar spine symptoms to anyone, including Dr Rimmer, when Dr Bodel identified restrictions in the lumbar spine on examination on 14 April 2023.
Secondly, Dr Rimmer in his earlier reports had advised on the claims that had been made. In his report of 23 February 2022 Dr Rimmer noted injuries of an anterior dislocation of the right shoulder, and posterolateral corner injury left knee and undisplaced medial tibial plateau fracture.
In his report of 14 September 2023, Dr Rimmer had before him a report from Dr Bodel identified as “20 June 2023,” by which it may be assumed he was referring to Dr Bodel’s report of 14 April 2023, as no report dated 20 June 2023 was lodged. Dr Bodel’s report, it will be remembered, simply identified that there was an entitlement to lump sum compensation regarding the lumbar spine, based on the examination only.
The respondent asked Dr Rimmer for an opinion about that assessment, as noted above, which included an opinion “from the history provided by the claimant.” Mr Mackey had been asked to attend Dr Rimmer on 30 August 2023 presumably for the purpose of exploring any possible cause for the entitlement identified by Dr Bodel. It does not appear that Dr Rimmer took that opportunity, as he stated that there was “no indication” of either an acute or consequential lumbar spine condition because no complaint had been made either to him or to any other medical practitioner. As also noted above, the respondent was concerned as to what possible basis there might have been for a claim for the lumbar spine in view of
Dr Bodel’s finding on examination. The respondent went so far as to ask Dr Rimmer to speculate whether there was a “mechanism by which the lumbar spine was rendered symptomatic as a result of the accepted left knee injury and/or right shoulder injury.”
Dr Rimmer’s response did not consider that question, beyond his response that no complaint of been made.
In his report of 31 October 24, however, Dr Rimmer had before him, relevantly, “Worker Statement” (which was the statement Mr Mackey made on 10 September 2024), and both reports from Dr Bodel dated 14 April 2023 and 25 September 2024.
Dr Rimmer’s advice, as reproduced above, was that no complaint of a lumbar spine condition had been made to him on either of the occasions he had assessed Mr Mackey, and that therefore Dr Rimmer did not believe there were any such complaints. Dr Rimmer did not engage with either the contents of Mr Mackey’s statement, which was before him, or
Dr Bodel’s opinion. Significantly, Dr Rimmer did not engage with the question that had been asked by his retaining solicitors, namely:[24]
“1. If you maintain that the worker did not suffer any worsening of his lumbar spine condition as a result of an “abnormal gait pattern”, to what would you attribute his lumbar spine complaints (assuming the claimant does/did have lumbar spine pain as set out in his statement)? In other words, if the cause of the lumbar spine complaints is not the abnormal gait pattern postulated by Dr Bodel, what is the cause?...”
(As written)
The failure by Dr Rimmer to respond to this query, which directly raised Dr Bodel’s opinion that Mr Mackey’s back condition had been caused by the abnormal gait pattern that resulted from his left knee issues, has left Dr Bodel’s expert opinion unchallenged. It was nothing to the point that no complaint had been made by Mr Mackey – there had been no suggestion that he had. The somewhat peremptory opinion given by Dr Rimmer also raises some question as to whether Mr Mackey was indeed walking with an altered gait when he was interviewed by Dr Rimmer on 14 September 2023. In that regard I prefer the evidence of
Dr Dias and Dr Bodel. I also prefer the evidence of Mr Mackey in his statement of
[24] ALD 21 November 2024 at page 2.
18 November 2024 when he stated that he had been favouring his right leg as a result of his left leg injury, and that he continued to walk with an altered gait.

It is quite in accordance with the probabilities that Mr Mackey would not have complained about his back given the seriousness of his other injuries. I also accept that Mr Mackey may indeed have considered that his back pain had been caused by the unfortunate history regarding his left knee, given the attention and treatment to his left knee and the complications ensuing therefrom.
As it turns out, he was correct in so far as the left knee injury did cause him to walk with an altered gait and it is not surprising, given Mr Mackey’s limited educational background, that he thought the back pain he was experiencing was part of the left leg injury, and thus he made no complaint. As Dr Bodel observed, that failure was unusual, but as no expert evidence has been advanced to counter the actual claim that Mr Mackey now makes, it must succeed.

[2025] NSWPIC 13

14 January 2025