McMillan v Secretary, Department of Education
[2025] NSWPIC 287
•23 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McMillan v Secretary, Department of Education [2025] NSWPIC 287 |
| APPLICANT: | McMillan |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Carolyn Rimmer |
| DATE OF DECISION: | 23 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim pursuant to section 66; parties agreed that claims in respect of injury to the left knee, the right knee and the back and the claim under section 4(b)(ii) in respect of the spine could be referred for assessment of permanent impairment; Held – the claims under section 4(b)(ii) in respect of injury to the left knee and the right knee were to be referred to a Medical Assessor for assessment of permanent impairment; insufficient evidence to discharge the onus of proof in respect of claims pursuant to section 4(b)(i) and/or section 4(b)(ii) to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles, and subtalar joints; award for respondent in respect of claims the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles, and subtalar joints. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the claims in relation to injury to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints with a deemed date of injury of 21 September 2022. 2. The matter is remitted to the President to refer to a Medical Assessor for assessment of whole person impairment of: (a) left lower extremity (knee) on 22 July 2015; (b) right lower extremity (knee) on 30 October 2017; (c) lumbar spine on 24 July 2018; (d) lumbar spine deemed to have occurred on 21 September 2022; (e) left lower extremity (knee) deemed to have occurred on 21 September 2022, and (f) right lower extremity (knee) deemed to have occurred on 21 September 2022. 3. All documents attached to the Application to Resolve a Dispute, the Reply and the Applications to Lodge Additional Documents dated 10 March 2025 and 2 April 2025 are to be sent to the Medical Assessor. |
STATEMENT OF REASONS
BACKGROUND
Peter McMillan (the applicant) was employed by the Secretary, Department of Education (the respondent) as a general assistant at Young High School.
In the course of his employment on 22 July 2015 the applicant sustained an injury to his left knee. On 30 October 2017, in the course of his employment, the applicant sustained an injury to his right knee. On 24 July 2018, in the course of his employment, the applicant sustained an injury to his lumbar spine. The applicant further sustained a disease injury to his lumbar spine with a deemed date of injury of 21 September 2022.
The applicant further alleged that he sustained a disease injury to his left knee with a deemed date of injury of 21 September 2022, a disease injury to his right knee with a deemed date of injury of 21 September 2022, and disease injuries to the bilateral hips, cervical spine, thoracic spine, bilateral shoulders, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints with a deemed date of injury of 21 September 2022.
The applicant made a claim for lump sum compensation for 59% whole person impairment (WPI) on 5 June 2024.
The respondent disputed liability for the claim for lump sum compensation in respect of the alleged disease injury to his left knee (alleged deemed date of injury of 21 September 2022), the alleged disease injury to his right knee (alleged deemed date of injury of
21 September 2022) and the alleged disease injuries to the bilateral hips, cervical spine, thoracic spine, bilateral shoulders, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints (alleged deemed date of injury of 21 September 2022).
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained disease injury to the left knee with a deemed date of injury of 21 September 2022 – s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether the applicant sustained disease injury to the right knee with a deemed date of injury of 21 September 2022 – s 4(b)(ii) of the 1987 Act, and
(c) whether the applicant sustained disease injury to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints with a deemed date of injury of 21 September 2022 - ss 4(b) (i) and/or 4(b)(ii) of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The parties attended a conciliation conference and arbitration via video link on 9 April 2025. The applicant was represented by Mr John Dodd, who was instructed by Mr David McCabe of McCabe Partners Lawyers. The respondent was represented by Ms Nicole Compton, who was instructed by Ms Phoebe Singer of Gair Legal. Ms Sara Luhrs from the insurer attended the conciliation conference and arbitration. The matter was part heard on 9 April 2025 and I directed the parties to file written submissions.
Ms Compton was not available to prepare submissions for the respondent and Mr Ross Hanrahan was then briefed to represent the respondent. Mr Hanrahan prepared the submissions filed by the respondent on 6 June 2025.
The applicant filed submissions in reply dated 9 June 2025.
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) Reply and attached documents;
(c) Application to Lodge Additional Documents dated 10 March 2025, and
(d) Application to Lodge Additional Documents dated 2 April 2025.
Oral evidence
No application was made to take oral evidence.
SUBMISSIONS
The parties made written submissions following the conciliation and arbitration. I do not propose to repeat each of the arguments of counsel in these reasons.
Applicant’s submissions
In written submissions dated 24 April 2025, the applicant submits that the real issue in the proceedings is the characterisation of the nature of the applicant’s injuries. The applicant relies upon the whole of his employment history of heavy work as having been the main contributing cause of the various pathologies he now has. The applicant relies upon s15 and/or 16 to deem the date of those injuries as 21 September 2022 when he was last employed by the respondent in work to which the nature of those diseases were due.
The applicant annexed an annotated chronology to his submissions with excerpts from medical reports. The applicant submits that the medical and radiological evidence clearly shows that the applicant suffers from disease processes in many parts of his body in the form of degenerative changes and that this is clear from the radiologists and treating specialists referring throughout to degeneration and osteoarthritic changes.
No applications were made to adduce further evidence or to cross examine any witnesses. The applicant’s evidence remains unchallenged regarding the nature of his work for the respondent.
Throughout the applicant’s submissions, “employment to the nature of which the diseases or aggravations are due” has been referred to as “heavy work” as it is such heavy work (and its various incidents) that the applicant relies upon as being causative of the degenerative changes from which he now suffers and/or the aggravation of such changes. The diagnoses made in radiology and by medical specialists that the applicant has throughout his employment with the respondent has been argued as being in the nature of aggravation of degenerative changes in contrast to the applicant just having suffered specific injuries on specific dates that would fall within s 4(a).
The applicant’s case is that the nature of the injuries he has sustained over the whole of his employments have been in the nature of aggravations of degenerative changes to his joints (including his lumbar, thoracic and cervical spine) and his employment duties with the respondent have been the last of such employment duties.
The applicant is relying on his working duties over his lifetime, including his work with the respondent as causing his injuries, with his employment with the respondent also being employment to which the nature of such injuries (or their aggravation) are due. Sections 15 and 16 deem such an injury as having occurred when the applicant was last employed in relevant employment, being the agreed date of 21 September 2022.
The “specific” aggravations of those conditions have occurred after (at times) minimal instances of activities such as on 15 July 2015 “doing no more than moving printer cartridges” (indicating no significant weight bearing) and on 21 September 2022 (when the applicant was last employed in his usual duties for the respondent) bending over to place a microphone stand into a truck.
It is submitted that the applicant’s osteoarthritic disease has been aggravated by the heavy work carried out by the applicant until 21 September 2022.
The interaction between those degenerative changes and the instances of aggravation at work in relation to the knees are described by Dr Caldwell (report 21 October 2024, Application to Resolve a Dispute (ARD) page 76). At page 77, Dr Caldwell considers the applicant had a diseased meniscus and sustained a relatively trivial injury. Dr Caldwell considers that the medial tear in the applicant’s knee is “undoubtedly degenerate and, we all age, and if you do physically hard work you probably age a bit faster”.
Dr Caldwell considers all of the applicant’s employments (including his work for the respondent) have contributed over a long period to the wear and the subsequent tears in his knee. At ARD page 78: “the injury to his left knee was an aggravation of slowly developing pre-existing degenerative change.”
Dr Caldwell’s views are echoed by Dr Dixon (ARD page 1, especially ARD page 8). The extent of the degenerative changes is shown in the radiology set out in the Chronology, including the applicant’s back, both knees, both hands and MCP joints, cervical spine and left foot and ankle. The applicant has demonstrable physical signs on examination as set out by Dr Bosanquet (ARD page 183) in each part of the body (restrictions of movement and symptoms).
Dr Bosanquet does not dismiss the concept of aggravation of osteoarthritis being aggravated by heavy work as he adopts this in respect to the applicant’s back and left knee.
Dr Bosanquet initially commented (ARD page 182) that “due to his age and background of heavy work, (not delineated between work for the respondent and prior employers])he has developed, without injury, pain in his cervical spine, thoracic spine, both shoulders, both wrists and thumbs, ankle and feet.” Dr Bosanquet was looking for was some specific incident to cause such an aggravation. When it is pointed out that the applicant is relying upon the heavy nature of his work with the respondent, Dr Bosanquet (ARD pages 194, 201, 202) seeks to distinguish between the applicant’s previous employment duties on the basis that his employment with the respondent was much lighter. However, this is not the real issue: the question is whether the applicant’s employment duties were “heavy work” being work to the nature of which the aggravations of his disease processes were due.
It is submitted that the applicant’s work for the respondent from 2010 to 2021 was “heavy work” being employment duties to the nature of which the aggravation of his osteoarthritic diseases was due. The various incidental events in the course of that heavy work were part of that process of aggravating the underlying degenerative changes: they were part of the injury alleged under s 4(b)(ii).
This view is supported by Dr Dixon (ARD page 8) and by Dr Caldwell in respect of the knees. It is conceded by the respondent in respect of the back and left knee. Dr Bosanquet considers heavy work can cause such an aggravation but seeks to minimise the nature of the applicant’s duties with the respondent. However, this is negated by the evidence from the applicant and the school principal. Dr Bosanquet’s rationale that “not all school maintenance men get an aggravation of degenerative changes” is not supported by any scientific approach or evidence and does not necessarily relate to the applicant.
The applicant’s work as a shearer and in building work were heavier than that carried out for the respondent, but that does not mean that the applicant’s work for the respondent was not “heavy work”. In the presence of the pre – existing degenerative changes, it is submitted that the alternate explanation for the increase in the applicant’s symptoms over his time working for the respondent throughout his body reinforces that he has suffered an injury in form of s 4(b)(ii) being an aggravation of a disease to which the employment is a main contributing factor.
It is submitted that the applicant has established injury to his lumbar spine (conceded by respondent), cervical spine, thoracic spine, both shoulders, both hips, both wrists, both thumbs, left knee (conceded by respondent), both ankles and subtalar joints with a deemed date of injury of 21 September 2022 pursuant to s (b)(i) or s 4 (b)(ii). It is most likely that the finding of injury under s 4(b)(ii) would be the most appropriate in this case.
Respondent’s submissions
In written submissions dated 2 June 2025, the respondent noted that to establish a "disease injury" under s 4(b) of the 1987 Act, a worker must generally show: the existence of a disease, that the disease was contracted in the course of employment or aggravated/accelerated/exacerbated/deteriorated in the course of employment, and that the employment was the main contributing factor affecting the disease.
The respondent concedes certain frank injuries as set out below, but disputes liability for all of the claimed disease conditions apart from the lumbar spine, relying on its expert medical opinion and the conspicuous lack of cotemporaneous medical evidence.
The respondent concedes a frank injury to the left knee on 22 July 2015. The respondent disputes a disease injury to the left knee (which is disputed) with a deemed date of
21 September 2022.The prospect of establishing a disease injury for the left knee (separate from the frank injury) is remote given the lack of contemporaneous medical evidence together with the opinion of Dr Bosanquet. Although Dr Dixon supports injury to the left knee as an occupational disease/aggravation, Dr Bosanquet notes the left knee injury involved aggravation of pre-existing degenerative changes. This is understood to be a reference to the frank incident aggravating pre-existing degenerative changes and not to a further aggravation due to the nature of the work over time.
A frank injury to the right knee on 30 October 2017 is conceded. However, the respondent disputes the right knee disease claim. The prospects of establishing such a right knee disease, in addition to the frank injury, are similar to the left knee disease claim with proof likely to depend on overcoming Dr Bosanquet’s medical opinion while considering the lack of contemporaneous treating medical evidence.
Dr Bosanquet noted the pathology in the right knee is similar to the left. The two knees are not different on the radiological findings. In his opinion these conditions are constitutional, with no additional specific injury to the right knee mentioned. To treat it as having worsened as a result of the work generally, in the absence of specific complaint, amounts to speculation only.
A lumbar spine injury on 24 July 2018 is accepted as having occurred on that date, being an aggravation of a pre-existing disease condition, following the lifting of “two big cupboards” on 3 July 2018. A lumbar spine disease injury with a deemed date of 21 September 2022 is also conceded. The applicant states that he was “loading music instruments into truck” on
21 September 2022 and the respondent concedes only that an aggravation disease occurred on that date because of that specific activity, and not because of the nature of the work more generally described.Dr Bosanquet agrees that the multilevel degenerative changes in the applicant’s lumbar spine have been aggravated due to the applicant’s activities with the “music instruments” on that day. Given the insurer's concession of a lumbar spine disease injury, as a result of two specific frank incidents, proof of further disease injuries to the lumbar spine, would require further contemporaneous evidence of such complaints, which is absent in the evidence.
The respondent disputes liability for the claimed disease conditions to bilateral knees, bilateral hips, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral hands, bilateral thumbs and bilateral ankles and subtalar joints (heels). The likelihood of establishing such disease injuries for this broad group of body parts, as the applicant states at “every part of my body” (ARD page 43), would appear remote on the available evidence primarily due to the conflicting medical evidence.
The applicant relies on Dr Drew Dixon's opinion that these body parts suffer from occupational diseases or aggravation of disease due to the nature and conditions of his employment as a labourer/shearer. However, Dr Dixon does not take any history of these specific additional body parts or how they were related to the applicant’s occupation.
In contrast, Dr Bosanquet opines that there has been no acceleration, exacerbation, or deterioration of the cervical spine, thoracic spine, bilateral shoulders, bilateral wrists, bilateral hands, bilateral thumbs, right knee, bilateral ankles, and subtalar joints due to the applicant's employment with the respondent and can point to no aspect of the work that related to these specific body parts.
Dr Bosanquet attributes the problems in these areas to age-related changes and prior, heavy employment (as a shearer, concreter and builder). This is apart from the concurrent cherry farming activities in which the applicant was engaged. His evidence supports a finding that evidence that “the main” cause of any impairment affecting these body parts, is the history of previous heavy work, rather than any aspect of the work described as having occurred with the respondent. For the bilateral hips, thoracic and cervical spine, shoulders, hands and feet Dr Bosanquet did not diagnose any specific condition, however he observed at (ARD page 202) that there is “underlying arthritis, which is constitutional” which at the spine at least is “multi-level”.
The Commission will need to weigh up and resolve these directly contradictory expert opinions having regard to the availability of evidence going directly to these body parts. In the respondent’s submission there is no such evidence. There is overwhelmingly a lack of evidence from treating practitioners to support the claims that these additional body parts were injured as a result of the nature and conditions of employment with the respondent. It is noted that the current claim is the "first indication" of any alleged work-related injury (disease) to those body parts, in the context of a nature and conditions claim.
Clinical records from Boorowa Street Practice refer to pain in the hands and feet on two occasions, without any context, in April and July 2022 and the X-rays obtained in May of that year refer only to conditions that are described as “mild” and “minor”. Otherwise, the records do not record any complaints for the bulk of the disputed body parts, let alone attributing any impairment of these parts to work with the respondent.
This absence of documented complaints in treating records is a significant hurdle, as highlighted in the case of Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 (12 November 2018) (Taylor), cited in the course of discussion at arbitration, wherein a similar lack of contemporaneous complaints led the Arbitrator to find the evidence lacking, in order to establish injury, despite expert opinion supporting the claim.
The respondent relies upon the Taylor decision to support its position, regarding the lack of evidence from treating medical practitioners. It is only after the injury when the applicant attended his doctor with his lawyer that these complaints are noted. (R page 189)
The respondent disputes the applicant's characterisation of his employment with the respondent as consistently heavy, arduous, and repetitive. The factual evidence including rehabilitation reports suggests duties were more akin to a handyman role and do not indicate repetitive and or arduous duties as asserted in the applicant submissions. This weakens to a considerable degree, any argument that the nature of the work with the respondent was the main contributing factor to the claimed disease conditions. This is particularly so when contrasted with the applicant's admitted previous history of very heavy work as a shearer, concreter, builder and self-employed orchardist maintaining 20 acres of cherry plantings, spanning 40 years, since he was aged 16. (See the list of duties at R pages 49 and 198).
The applicant is now aged 62 years of age and finalised litigation with four different employers presumably concerning his back in 2000, when he was aged 38. He has been working on “lighter duties” with the respondent since 2008, when he commenced at the age of 46.
Dr Bosanquet opines specifically that the degenerative changes seen to have affected the applicant’s lumbar spine and more importantly the other claimed body parts, are the result of his prior heavy work, that being the main causal factor.
Dr Wickramaratne specifically excludes foot and ankle pain as work related. (R-ALAD page 31)
The applicant's initial pleadings refer to a "material" contribution or to "a substantial contributing factor" rather than the "main contributing factor" which is the appropriate test for a disease claim. This indicates a misinterpretation by its medical experts of the legal test for disease aggravation.
While this pleading may be amended, or the evidence looked at as a whole, it is submitted that the lack of contemporaneous corroboration of complaints underscores the importance of proving to the required degree of comfort, the higher threshold of "main contributing factor" for the multiple disputed conditions.
For the lumbar spine, as the respondent has conceded injury / disease, on two occasions, this dispute primarily concerns the appropriate “deemed” date of injury, that is, 21 September 2022.
For the frank left and right knee injuries, liability for these injury events themselves (aggravating disease) is conceded. The dispute is on entitlement to permanent impairment for the lower extremities (knees) which is to be determined conclusively by a Medical Assessor.
This requires determination of the basis, if any, for such additional impairment, resulting from the nature and conditions of the work, with a deemed date of injury of 21 September 2022. Proper regard to the evidence is required before classification of these claimed additional injuries as disease conditions.
For the claimed disease injuries to the bilateral hips, cervical spine, bilateral shoulders, thoracic spine (no impairment assessed), bilateral wrists, hands and thumbs, as well as the bilateral ankles and subtalar joints, it is submitted that the inclusion of these body parts would be inappropriate, based on the current evidence.
The strong contradictory medical opinion from Dr Bosanquet attributing these conditions mainly to normal ageing as well as the prior and concurrent extra-ordinary work stresses, coupled with the significant lack of contemporaneous treating medical evidence for complaints related to these parts during the period of the applicant’s employment with the respondent, (a factor highlighted in Taylor ), presents substantial hurdles for the applicant to overcome.
Applicant’s submissions in Reply
The applicant filed submissions in reply dated 9 June 2025. The applicant noted that the respondent relies upon its expert medical opinion (Dr Bosanquet) and “the conspicuous lack of contemporaneous medical evidence” to dispute liability for most of the applicant’s “disease” claims (but inconsistently concedes that the same work has caused or aggravated disease of the applicant’s lumbar spine).
The applicant has already made submissions regarding the opinions of Dr Bosanquet in its original submissions at paragraphs 16 to 18. Essentially, Dr Bosanquet accepts that heavy work can aggravated osteoarthritis and says (report dated 29 July 2024, ARD page 182) that it is “due to his age and background of heavy work” that the applicant has developed pain in the cervical spine, thoracic spine, both shoulders, both wrists and thumbs, right knee, ankles and feet. If anything, it is submitted the opinions of Dr Bosanquet support the applicant’s “disease” case.
The respondent submits (paragraphs 25 and 34) that the absence of documented complaints in treating medical records is a significant hurdle to the applicant’s “disease” claim and relies upon the Court of Appeal decision in Taylor v J&D Stephens Pty Ltd [2018] NSWCA 267. As noted by counsel for the respondent, a similar lack of contemporaneous complaints led the Arbitrator in that matter to find the evidence lacking in order to establish injury and entered an award for the respondent. However, that was the finding that was overturned by the Court of Appeal. The Court of Appeal noted [paragraph 8] that the appellant contended that it was sufficient to establish “injury” of the nature of a disturbance of the normal physiological state and it was not necessary that he had complained of that injury.
In the substantive judgement, Simpson AJA (with whom McColl AP and Payne JA agreed) held [paragraph 110] held,
“In adopting the Arbitrator’s approach to determining whether the appellant had established a disease injury by reference only to the absence of complaints of symptoms, and excluding reference to medical and radiological evidence, she (the Deputy President who adopted the Arbitrator’s reasoning) fell into error in point of law.”
Thus, it would be error of law to find against the appellant regarding contraction or aggravation of “disease” on the basis of an absence of contemporaneous complaints.
It is submitted (with respect) that the entire bases of the respondent’s submissions fail and the applicant should succeed.
FINDINGS AND REASONS
The respondent agreed there was no dispute that the applicant sustained the following injuries, being:
(a) left knee frank injury pursuant to ss 4(a) and/ or 4 (b)(ii) of the 1987 Act with a date of injury of 22 July 2015;
(b) right knee frank injury pursuant to ss 4(a) and/or 4(b)(ii) of the 1987 Act with a date of injury of 30 October 2017;
(c) lumbar spine injury pursuant to ss 4(b)(ii) of the 1987 Act with a date of injury
24 July 2018, and(d) lumbar spine disease injury pursuant to s 4(b)(ii) of the 1987 Act with a deemed date of injury of 21 September 2022.
The parties agreed that the injuries set out above in paragraph 63 could be referred to a Medical Assessor for assessment of WPI.
The matters requiring determination were as follows:
(a) whether the applicant sustained disease injury to the left knee with a deemed date of injury of 21 September 2022 – s 4(b)(ii) of the 1987 Act;
(b) whether the applicant sustained disease injury to the right knee with a deemed date of injury of 21 September 2022 – s 4(b)(ii) of the 1987 Act, and
(c) whether the applicant sustained disease injury ss 4(b) (i) and/or 4(b)(ii) of the 1987 Act to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints, with a deemed date of injury of 21 September 2022.
Evidence of the applicant, Mr McMillan
In a statement dated 10 October 2024 (ARD page 12), the applicant stated that he had worked as a shearer from the age of 16 until he was 34 in 1996.
The applicant stated that he was involved in a workers compensation case from about 1996 to March 2000 against four different employers. He alleged that he sustained frank injuries with three of the employers and a disease claim was made against the last employer. He stated that this claim was settled. He stated that he never needed a back operation and followed advice that he should swim to lessen the pain and discomfort.
The applicant said that he then worked as a concreter and labourer for about three years, which was hard physical work. He described his back pain in this period as being “2 out of 10”. He stated that he then worked as a builder’s labourer which was also heavy physical work. He stated that he could do this work with little back discomfort. He stated that “at this point in time” he had no pain in his neck, shoulders, wrists, hips, knees or ankles and only minor pain in his back.
The applicant stated that he commenced employment with the respondent in about 2008 as a farm assistant at Young High School (the school) working 22.5 hours a week for 4.5 hours a day. He said that when he wasn’t working at the school, he was working his orchard which consisted of 20 acres of cherries.
The applicant stated that the school had 600 students and about 100 staff. He described the work of the general assistant as physically demanding as it involved doing all the work for 700 people. He stated that he did extra work beyond what was required and built a chicken yard, a machinery shed and an aquaculture pot. He stated that he also planted crops such as corn, wheat and oats and did a lot of physical work on the site which he really was not required to do. The applicant stated that there was also sheep work as he had a little flock of sheep and he had to teach students how to shear a sheep, crutch the sheep and check for flyblown and footrot.
The applicant stated he then obtained the job of general assistant and worked in both jobs for about a year. He stated that he went to full time work as the general assistant in 2016.
The applicant wrote:
“15. The heavy aspects of the job as a General Assistant, with the Department of Education, working at Young High School involves some of the following:
• Moving of wooden cupboards, weighing about 200kg around the school site.
• Moving filing cabinets, desks around the school.
• Lifting up blackboards/whiteboards by yourself.
16. I was also responsible for setting up for assemblies in the all-weather shelter. I was told that the 600 students needed chairs to sit down on for the half an hour to an hour meetings.
17. The assemblies in the hall where the students would go from year 7- 9 and then the next week they would have years 10 -12. And then 2-3 times a year they would have assemblies for year 7 through to year 12. This involved putting out 600 chairs.
18. The chairs were kept in the hall, and I had to use a trolley, which was capable of moving 4 stacks of chairs, 10 chairs high. The trolley was about 2 metres. I had to push these 40 chairs approximately 250 metres to the all weather shed. I was able to move 40 chairs and there were 300 people, it would mean that I would have to make about 7-8 trips.
19. At the end of the assembly, I would have to stack the chairs up and take them back to the hall. It involved a lot of lifting, carrying and carrying the chairs in an awkward position, which would require me to bend forward at the hips.
20. I was also moving out science lab tables, computer tables, fridges, mowing lawns, gardening, fixing, and repairing items such as doors, putting up monitors, computers, display cabinets etc. It was hard, physical work for one single male person”.
The applicant stated that over the years of working for the respondent, he started suffering pain and discomfort in the following body parts:
• neck;
• both shoulders;
• both hands;
• pain in the upper back;
• pain in the lower back;
• pain in both legs, more so the right leg;
• pain in both knees, more so the right knee, and
• pain in both ankles.
The applicant stated that as well as the heavy nature of his work, he suffered incidents which aggravated the problems he had in various parts of his body.
When describing the pain in his back between 2018 and 2022, the applicant also wrote:
“62 …. Every couple of months, my back pain would reach a level of 8 out of 10. It would always get aggravated because of the heavy work I had to do as a General Assistant. I was also suffering pain in the neck, both shoulders, both hands, both knees and both ankles.
63. On 27/04/2022. General Practitioner, Dr. S Polgolla, referred me for Xrays of both hips, knees, and hands and also an X-ray of both hips, pelvic, both knees and both hands”.
The applicant when describing his back pain in 2023 wrote:
“84. …I was also suffering pain in the neck, both hands, upper back, both knees, and both ankles. However, my lower back pain was my major concern at this point in time, as I was facing the prospect of having a fusion operation. All other complaints of pain and discomfort just took a second place.”
The applicant described an injury to his left knee on 22 July 2015 when he was on a ladder lifting printer cartridges on and off a shelf and he turned to the right and felt pain in the left knee. He stated that as the day went on the pain got worse and that by the end of 2015, he was unable to kneel or squat at work. He consulted his general practitioner (GP), Dr Peter Hamilton-Gibbs and was referred for an MRI scan on 5 November 2015. He said that he was eventually referred to Dr Vinny Mamo, orthopaedic surgeon, who performed an arthroscopy on the left knee on 17 May 2016. He stated that after the surgery he suffered less pain in the left knee but on return to work, the pain and discomfort in the left knee increased and affected his ability to stand and walk. He stated that he was then referred to Dr Bruce Caldwell, orthopaedic surgeon, who recommended that the appellant undergo a left knee unicompartment replacement. Dr Caldwell performed an Oxford unicompartment replacement on the left knee on 24 November 2016.
The applicant described an injury on 30 October 2017 to his right knee when he was crawling under the stage to get exam tables which were stacked there and suffered pain in the knee. He stated that he saw his GP, Dr Maung, on 14 November 2017 and he was referred for an X-ray of the right knee. He stated that he was then referred to Dr Caldwell for review.
The appellant described an injury to his back in 2018 when he was moving a big cupboard weighing up to 200kg and dragging it up the steps of a demountable. He said that he suffered back pain with numbness in the right leg. He stated that on 26 July 2018, he was referred for a CT-scan of his lumbar spine. He stated that between 2018 and 2022, his back pain with pain going down both legs got worse. He wrote: “Every couple of months, my back pain would reach a level of 8 out of 10. It would always get aggravated because of the heavy work I had to do as a General Assistant. The applicant stated that he was referred to Dr Huang, neurosurgeon, for treatment and underwent cortisone injections and a CT epidural block on 27 January 2023”. He stated that on 27 June 2023 he underwent a L4/5 total disc replacement and L4/5 fusion by Dr Huang and Dr A Lennox.
In a statement dated 7 November 2024 (ARD page 39), the applicant described the work he had performed as a concreter and labourer and then a builder’s labourer before he commenced employment with the respondent in 2008. He stated that his work as a concreter and labourer was hard physical work. He stated that his work as a builder’s labourer was heavy physical work and he was able to complete the work suffering only minor back discomfort. He stated that at this point in time he had no neck, shoulder, wrist, hips., knees, ankle pain and only minor pain in his back.
The applicant stated that the farm assistant role and General Assistant role with the respondent were both “hard, physical jobs on the body”. He wrote:
“6. …As a farm assistant, I built a chicken yard, a machinery shed and an aquaculture plot. I also was involved with planting fruit trees, putting in crops such as corn, wheat and oats, as well as the heavy, physical work of harvesting these crops.
7. There was sheep work, where I had to shear sheep, and teach students to shear sheep, crutch sheep and check for fly-blow and foot-rot. I then became a General Assistant at the Department of Education, working at the Young High School.
8. I mentioned in my statement dated 10/10/2023 which went from paragraph 15 to 20 all of the physical aspects of my job as a General Assistant with the Department of Education. This was a physical demanding job and put a lot of pressure on your neck, shoulders, elbows, wrists, back, hips, knees and ankles.
9. I was the only General Assistant for 600 students and 100 teachers and assistants, totalling 700. However, as regards to physical meaning of my jobs, all my roles have been extremely physical, labouring jobs which cause a slow deterioration in every part of my body.
10. However, with regards to levels of the physical sides of each job, the hardest job was shearing, then building work, then working at the high school.
11. However, I had never said that the work at the high school was 'light work'.
12. Dr Bosanquet, in his medical report dated 19/08/2024 on page 3 of the 'medical history' said as follows: ‘He then applied for a job at Young High School, which he claimed was 'lighter work'
13. However, this was incorrect. All I said to Dr. Bosanquet was that carpentry work was lighter work than shearing. I never said it was ‘Iight work’.”
The applicant stated that he did not apply for the job at Young High School because it was “lighter work” but because he left school at year 10 and obtained an income using his physical attributes. He said that he had difficulty reading and could not be classified as able to work in an office situation.
Evidence of Anna Barker
In a statement dated 3 October 2024 (R page 48), Anna Barker, principal at the school, stated that she commenced work at the school in 2000 and became principal at the end of 2020. She said that her first contact with the applicant was in about 2010 or 2011. In relation to the applicant’s duties, she stated that his specific duties included mowing, weeding, moving furniture within the limits, maintenance around the school, deliveries and moving broken furniture. She said that she was not sure what the heaviest items that the appellant moved were or what the weight limits were. She said that he moved items such as cupboards, fridges, desks, chairs and had a hand trolley that he could use. Ms Barker stated that the applicant had assistance if he had to move heavier items including students who volunteered, other staff and at times a second general assistant who would be employed if there was a lot of furniture to be moved. She said that the physical demands of his role included bending, twisting, reaching, walking and sitting and he was required to carry, lift, push and pull to perform his duties. She said that his workload fluctuated, he was busy at times and sometimes had deadlines to meet.
Ms Barker stated that she was aware that the applicant injured his left knee on 22 July 2015 and recalled that he had an injury to his right knee in 2017. She said that she was not aware that the appellant alleged that he injured his back in 2018 when lifting a 200kg cupboard. She stated that she was not aware of any cupboards weighing 200kg and assumed that all items would have been taken out before moving the cupboard.
Ms Barker stated that on 21 September 2022, all the furniture had to be moved down to the hall and she recalled that the applicant said that he had hurt his back moving a microphone stand. She recalled that he was in a lot of pain.
Return to Work Plan and Workplace Assessment Report
In the Return to Work Plan Number 1 for return to work on 20 October 2015 (R page 195), the nature of pre-injuries duties were described as ground maintenance, building maintenance, deliveries, driving, chemical register and emergency services and school maintenance contractors.
In the Initial Workplace Assessment Report dated 15 February 2016 (R page 198), Mr Carl Hynes of Rehab Management, noted that the work of a general assistant was “heavy monotonous work”. Mr Hynes reported that the applicant was required to work all over the school but performed the majority of his work at the following places:
“•Oval: Mr. McMillian reported that he spends up to five hours a day mowing the school
ovals on a ride on mover. The Ovals were observed to be flat with no major hazards on them. Mr. McMillian avoids the ovals at lunch time to avoid being bump (sic) by the children and doing further damage to his knee.
• Work shed: Mr. McMillian reported that he spends various hours throughout the week
fixing furniture and retrieving equipment from the tool shed. Mr. McMillian stated that the work shed is quite cluttered but he is able to move throughout it without risk of injury.
• Corridors: Mr. McMillian reported that he avoids the corridors between classes in order to avoid being bump by the children and doing further damage to his knee.
• Classrooms: Mr. McMillian reported that he spends a small amount of time throughout
the week in various classrooms around the school. The classroom were observed to be accessible without risk of further injury.
• Admin offices: Mr. McMillian reported that he spends a small amount of time throughout the week in various admin offices around the school. Like the classrooms these offices were observed to be accessible without risk of further injury.
• Banks of the oval: The banks of the oval where of a major concern for Mr. McMillian's
safety. These where hilled areas that had unstable surfaces and were steep.
Mr. McMillian is to avoid these areas at all cost to avoid further damage to his injury.”Mr Hynes recommended that the applicant avoid stairs and only use the lift to access the upper floors of the school.
Mr Hynes reported that the following pre-injury duties were performed by the appellant:
Task 1: Morning Duties Standing Frequent
(Raise Flag and open up Walking Frequent
administration Building) Carrying flag Frequent
Duration: 30 Minutes Pulling ropes Frequent
Occurrence: Daily Tying flag Frequent
Gripping Frequent
Fine motor skills Frequent
Pushing doors Frequent
Pulling doors Frequent
Twist key Frequent
Bend Frequent
Lifting Frequent
Task 2: Mowing school Standing on mover Frequent
Grounds Walking Frequent
Duration: 5 to 7 hours Pushing Frequent
Occurrence: Daily Pulling Frequent
Stepping onto mower Frequent
Driving mower Frequent
Braking Frequent
Gripping Frequent
Accelerating Frequent
(Note: The ride on mower has a rubber mounted plate so you cannot
feel the vibrations of the engine)
Task 3: Fixing various Standing Occasionally
Items Sitting Occasionally
Walking Occasionally
Duration: between 20 Pushing Occasionally
minutes and 2 hours Pulling Occasionally
Occurrence: Every few Lifting Occasionally
Days Carrying Occasionally
Bending Occasionally
Twisting Rarely
Gripping Occasionally
Fine motor skills Occasionally
Gross motor skills Occasionally
(Task Description: Mr. McMillian is required to fix various objects from
around the school when they are broken, such as chairs, tables, etc.
These objects are put on a trolley and brought back to the work shed where
they are fix. No item is more than 20kgs)
Task 4: Moving heavy Standing Occasionally
Furniture Walking Occasionally
Duration: 15 minutes to 2 Lifting more than 20kg Occasionally
Hours Carrying more than 20kg Occasionally
Occurrence: Fortnightly Pushing trolley Occasionally
Pulling trolley Occasionally
Bending Occasionally
Kneeling Occasionally
Squatting Occasionally
Gripping Occasionally
Gross motor skills Occasionally
(Task Description: Mr. McMillian is required to move tables, cupboards and other heavy furniture with a trolley around the school.)
Task 5: General gardening Standing Frequent
Duties Walking Frequent
Duration: 1 hours Watering plants Frequent
Occurrence: Daily Spraying weeds Frequent
Whipper snipper Occasionally
Shovel use Rarely
Digging Rarely
Pruning Occasionally
Bending Occasionally
Lifting Occasionally
Cleaning rubbish Frequently
Task 6: Putting up pictures Standing Occasionally
and banners Walking Occasionally
Duration: 1 hours Walking up ladders Occasionally
Occurrence: Fortnightly Bending Occasionally
Reaching Occasionally
Lifting Occasionally
Carrying hammering Occasionally
Gross motor skills Occasionally
Fine motor skills Occasionally
Task 7: Walking upstairs Stair walking Frequent
around the school
Duration: All day
Occurrence: Daily
Task 8: Delivery of Standing Frequent
mail/parcels and general Walking Frequent
lifting Lifting more than 10kgFrequent
Duration: range between 5 Lifting less than 10kg Frequent
minutes and 3 hours Bending Frequent
Occurrence: Daily Gripping Frequent
Task 9: Working on Standing Occasionally
unlevelled surfaces Walking Occasionally
(Cleaning banks of ovals) Bending Occasionally
Duration: 5 minutes to 1 Lifting Occasionally
Hours Cleaning rubbish Occasionally
Occurrence: Weekly Kneeling Occasionally
Twisting Occasionally
Carrying Occasionally
In a Workplace Assessment Report dated 31 October 2022 (R page 212), Ms Yvonne Brits, occupational therapist and rehabilitation consultant, noted that the equipment the applicant used in his work environment included a ride-on mower, shovel, general hand tools, ladder, broom, leaf blowers, weed spraying equipment, jerry cans, power tools such as grinders and drills, wheelbarrows and trolleys. She noted that constant tasks (greater than 67% of workday) as a general assistant included general maintenance of school fields, gardens, lawns by mowing, watering and weeding. She noted that frequent tasks (34-66% of the workday) included placing tradesmen for contracts when and if necessary, unlocking and locking all doors on the premises at the beginning and end of the day, general maintenance of equipment and buildings and distribution of stores goods delivered to the school.
In the “Recovery at Work Plan Number One” from Rehabilitation Services by Altius (R page 218) commencing 6 June 2022, Ms Yvonne Brits, occupational therapist, noted that pre-injury duties of a general assistant comprised of the preparation and maintenance of equipment, preparation of materials and construction of teaching aids, minor maintenance of building, plant and equipment, school reception and distribution of stores goods delivered to the school; maintaining school playing fields, gardens and lawns.
1990 back injury
In a NZI Report of Injury Form dated 13 March 1990 (R page 23) Young District Producers Co-op reported that the applicant sustained a strain to the lower back when lifting fruit trays on 9 March 1990. In a WorkCover Medical Certificate dated 10 March 1990 the applicant was certified as fit to resume normal duties on 13 March 1990. In a Medical Certificate dated 10 March 1990 (R page 25), Andrew MacFarlane, chiropractor, certified the applicant as unfit from 9 March 1990 to 16 March 1990.
In an email dated 30 September 2024 from the GIO to Rachel Ayliffe (R page 15), reference was made to a back injury on 25 June 1990. The email advised that no claims documents were found.
Medical reports
Medico-legal reports
In a report dated 24 April 2024 (ARD page 1), Dr Drew Dixon, consultant orthopaedic surgeon, noted that the applicant commenced employment with the respondent as a farm assistant and then as the general assistant position which involved doing the work for the 700 people in the school which was physically demanding. Dr Dixon wrote:
“He was doing most of the work as a farm assistant and was required to do extra work than what was required. He built a chicken yard and machinery shed and an aquaculture pot. He also planted fruit trees, put in crops such as corn, wheat and oats and did a lot of physical work on site. There was also sheep work and he had a small flock of sheep to teach students how to shear and crutch sheep and check for flyblown and foot rot. When he took the job as General Assistant, he worked both jobs for one year and then went full time in 2016.”
Dr Dixon noted that the heavy aspects of the job as a General Assistant with the respondent working at Young High School involved moving cupboards weighing up to 200kg around the school site, moving filing cabinets and desks around the school and lifting up blackboards and whiteboards by himself. He noted that the applicant was also responsible for setting up assemblies in all weather and was told that 600 students need chairs to sit on for the 30 minutes to one-hour meetings.
Dr Dixon wrote:
“The assemblies in the hall, where students would attend from Year 7 to Year 9 and then the next week, they would have Years 10 to 12 and two to three times a year they would have assemblies for Year 7 through to Year 12. This involved putting out 600 chairs.
The chairs were kept in the hall and he had to use a trolley which was capable of moving four stacks of chairs, 10 chairs high. The trolley was about two metres and he had to push these 40 chairs approximately 250 metres to the all-weather shed. He was able to move 40 chairs and if there were 300 people, it meant he had to make 7 to 8 trips. At the end of the assembly, he had to stack the chairs up and take them back to the hall, which involved a lot of lifting and carrying chairs in awkward positions, which required him to bend forward at the hips.
He also had to move out science lab tables, computer tables, fridges, mow lawns, do gardening, fixing and repair items such as doors, put up monitors, computers and display cabinets. II was hard and physical work for one person.
Over the years while working for the Department of Education, he started to develop pain and stiffness in his neck, both shoulders, both hands and back with pain in both legs and knees more marked in both ankles.”
Dr Dixon noted that the applicant sustained an injury to the left knee on 22 July 2015 when, lifting printer cartridges on and off a shelf while on a ladder. He noted that the applicant was referred for X-rays which showed medial joint changes and then he saw an orthopaedic surgeon who did arthroscopic debridement of the knee and partial meniscectomy on
17 May 2016. Dr Dixon reported that the applicant continued to have pain and stiffness in his left knee and was referred to an orthopaedic surgeon in Sydney and a left unicompartmental knee replacement was performed on 24 November 2016.Dr Dixon noted that the applicant had a second injury at work on 30 October 2017 to his right knee when he was crawling under the stage to grab examination tables which were too far back in the space, sustaining pain in the right knee. He noted that X-rays were arranged which showed similar changes with arthritic change in the medial compartment. He had an MRI which showed osteoarthritic change and he was referred for physiotherapy by his orthopaedic surgeon.
Dr Dixon noted that the applicant had a back injury in 2018 while he was moving a large cupboard which weighed up to 200kg. He noted that the applicant was dragging the cupboard up the steps of the demountable when he had back pain with sensory alteration in his right leg. Dr Dixon reported that his GP sent him for a CT scan which showed lower lumbar spondylosis with indentation of the left S1 nerve root.
Dr Dixon wrote:
“Between 2018 and 2023 his back pain with sciatica became more severe and he was having pain in his neck, shoulders, hands, knees and ankles and these were x-rayed. He had an MRI of the lumbar spine which showed moderately severe facet arthropathy and disc bulge at L4/5 and L5/S1 disc extrusion.”
Dr Dixon noted that the applicant was referred to a neurosurgeon and bone scan with SPECT/CT was arranged which confirmed the L4/5 facet arthropathy and bilateral L5 nerve root impingement. Dr Dixon reported that the applicant had two level L4/5 and L5/S1 ALIF (anterior lumbar interbody fusion) with bone spacers and grafting on 27 June 2023, because of sciatic pain with an L5/S1 microdiscectomy.
Dr Dixon noted that the applicant had done shearing from 1978 to 1998 and then concreting for three years followed by work as a labourer. Dr Dixon noted that the appellant started work with the respondent as a general assistant in 2010. He noted that the applicant had a history of a prior workers compensation injury to his back when he was a shearer which did not require surgery and settled with swimming. Dr Dixon noted that he reported no prior injuries to his neck, shoulders, wrists and hands, hips, knees or ankles.
Dr Dixon wrote:
“In summary this claimant, due to the nature and conditions of his employ at Young High School, developed pain and stiffness in his neck, shoulders, wrists and thumbs and lower back pain with radicular complaint with bilateral buttock sciatica and left sciatica and pain and stiffness in his knees and ankles.
His diagnoses are:
1. Neck strain Injury with post traumatic stiffness with aggravation of cervical
spondylosis which is ongoing with a C6/7 disc protrusion;
2. Bilateral shoulder brachialgia with post traumatic stiffness with deltoid pain with impingement on abduction bilaterally;
3. Post traumatic stiffness of both wrists with arthritic change and post traumatic stiffness of both thumbs with arthritic change;
4. Back strain injury with post traumatic stiffness with L4/5 and L5/S1 ALIF and
subsequent microdiscectomy with radicular complaint with left sciatica and bilateral buttock radiation without neurological deficit in either lower limb nor gross wasting;
5. Trochanteric bursitis of both hips with pain on walking;
6. Post traumatic arthritis of the medial compartment of both knees, the left one having been replaced with a unicompartmental replacement with retropatellar crepitus in the knees, more marked on the right with post traumatic stiffness;
7. Post traumatic stiffness of both ankles and subtalar joints;
8. Impaction of his injuries on his ADLs;
9. Reliance on analgesia and self-managed hydrotherapy (swimming).”
Dr Dixon expressed the opinion that the above conditions were causally related and due to the nature and conditions of his employ by the Department of Education at Young High School. He wrote:
“His injuries are occupational for labourers working at high schools and are characterised as a disease process which is notoriously heavy and physically demanding on the body, especially the back, as well as the neck, both hands, both hips, knees and ankles which are underlying, pre-morbid and pathological conditions as a result of his work as a labourer, which is notoriously heavy and physically demanding on these areas of the body, causing aggravation of a disease condition, from which the claimant suffers.
His repetitive work as a General Assistant at Young High School has led to the acceleration and aggravation of the pain in his neck, both hands, upper back, lower back, hips, knees and ankles. These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High School.
His condition/state of health before the date of the alleged injury was satisfactory apart from the low back pain when he was a shearer which did settle without surgical intervention.
He had not been complaining of any such symptoms similar to those complained of after the alleged work place injury apart from his back condition which had settled, as noted above.
He was incapacitated for work for that in the past but not before he was able to do concreting and building work and then working at Young High School.
The history and work caused aggravation of his pre-existing conditions is in the above report as well as the injuries and conditions diagnosed and the treatment provided and the results of the investigations.
He has been incapacitated for work to date because of the limitations noted above and his employment has been a substantial contributing factor due to the injuries sustained and diagnosed, because of the repetitive nature of the manual work with heavy lifting and carrying, repetitive bending and stooping, kneeling and squatting as described in the course of his school duties in the above report.”
Dr Dixon assessed 5% WPI of the cervical spine, 10% WPI of the left upper extremity (shoulder, left wrist and left thumb), 10% WPI of the right upper extremity (shoulder, right wrist and right thumb), 0% WPI of the thoracic spine, 26% WPI of the lumbar spine, 20% WPI of the left lower extremity (knee) 2% WPI of the right lower extremity knee, 4% WPI of the right ankle and subtalar joint and 4% WPI of the left ankle and subtalar joint. Dr Dixon combined those assessments to produce 59% WPI.
Dr John Bosanquet, consultant orthopaedic surgeon, in a report dated 29 July 2024 (ARD page 179) noted that the applicant’s work as a general assistant at the school involved setting up halls, moving furniture and stacking chairs and he had done this for seven years full time. Dr Bosanquet noted that the applicant had worked at the school initially as a farm assistant and at one point did both the farm assistant’s job and the general assistant’s job. He noted that as a farm assistant the applicant was building sheds and gardens, running sheep and poultry.
Dr Bosanquet wrote:
“Prior to this, he started work as a shearer after leaving school for 19 years. He had a back injury and took two days off and saw a doctor in the ACT. He also saw Dr Ian Farey, an orthopaedic spinal surgeon, who recommended swimming, which he maintained.
He then commenced work for two years as a concreter, which he maintained for
three or four years. He then commenced as a builder building houses.
He then applied for the job at Young High School, which he claims, was lighter work.”
Dr Bosanquet noted that the applicant sustained several injuries in his employment with the respondent, namely, an injury to his left knee in 2017, a back injury in 2018 and a further back injury when lifting a music stand. He wrote: “Due to his age and background of heavy work, he has developed, without injury, pain in his cervical spine, thoracic spine, both shoulders, both wrists and thumbs, right knee ankles and feet”.
Dr Bosanquet expressed the following opinion:
“Following injuries to his left knee and lumbar spine, he has not worked since
21 September 2022. During that time, he has required two operations on his left knee with a unicompartmental knee replacement and two operations on his lumbar spine with a fusion and microdiscectomy.He has other unrelated degenerative changes in his shoulders, wrists, thumbs cervical spine, thoracic spine, right knee, ankles and subtalar joints.”
Dr Bosanquet made the following diagnoses:
“1. Cervical spondylosis.
2. Thoracic spondylosis.
3. Lumbar spondylosis with disc lesions requiring a fusion from L4 to S1 plus a
microdiscectomy.
4. Injury left knee with aggravation of pre-existing degenerative changes medial
compartment and patellofemoral joint resulting in a) an arthroscopy and b) an Oxford unicompartmental knee replacement.
5. Age-related degenerative changes right knee involving medial compartment.
6. Age-related degenerative changes in both thumbs and wrists.
7. Age-related degenerative changes in ankles and subtalar joints.”
Dr Bosanquet expressed the view that there had only been a specific injury to the left knee and lumbar spine and there had been no injury to the cervical spine, both shoulders, thoracic spine, both wrists, both thumbs, right knee, both ankles and subtalar joints. He wrote: “The problems in these areas, in my opinion, are age-related plus related to his previous work as a shearer for 19 years, as a concreter and a builder.” Dr Bosanquet further stated:
“Those injuries outside of the left knee and lumbar spine and includes cervical spine, both shoulders, both wrists, both thumbs, right knee, both ankles and subtalar joints are age-related and largely a result of his employment prior to working in the Education Department. It is my opinion there has been no acceleration, exacerbation or deterioration of these areas through his employment at Young High School. In fact he applied for the position at Young High because it was a much lighter one than his previous heavy positions.”
Dr Bosanquet assessed 27% WPI of the left knee and lumbar spine.
In two reports, both dated 19 August 2024 (ARD page 191), Dr Bosanquet noted that he had been asked to reassess his findings of WPI in respect of the lumbar spine and left knee. He recalculated 24% WPI of the lumbar spine, deducted one thirds for a pre-existing condition which resulted in an assessment of 16% WPI for the lumbar spine. He then assessed 1% WPI for scarring. In respect of the left knee, he noted that he had used the incorrect table and 20% WPI and made a deduction of one half which resulted in 10% WPI in respect of the left knee.
In a report dated 30 October 2024 (ARD page 206), Dr Bosanquet confirmed that he had deducted one third for a pre-existing condition in the lumbar spine and expressed the view that a one third deduction was reasonable under the circumstances.
In a supplementary report dated 1 February 2025 (respondent ALAD page 19), Dr Bosanquet noted that there were injuries to the lumbar spine on 25 June 1990, 17 February 1998 and
9 March 1990 and then a further back injury at Young High School in 2018. Dr Bosanquet wrote:“Peter McMillan's duties with the Department of Education were wide-ranging and many of these were mentioned some of these in my initial report, ie, setting up halls, moving furniture, stacking chairs, mowing, weeding, maintenance around the school, deliveries and moving broken furniture.
With regard to my response to Peter McMillan's assertions about my reports:
I maintain that his work with the Department of Education was lighter work than say shearing, concreting and building sheds. It varied and he had a lifting limit. It is Peter McMillan who made the assertion that I implied that work was sedentary. He then looked up the meaning of sedentary implying that he was ‘someone inactive’.
At no time did I say the work was sedentary but I certainly maintain that it was lighter than the previous work and one of the reasons why he took on this role.”
Dr Bosanquet wrote:
“It is my opinion that his employment with the Department of Education is the main contributing factor to aggravating any left knee condition. His employment has not caused the underlying condition. The main contributing factor is the underlying degenerative changes present in his knee at the time of the arthroscopy by Dr Marmo on 19 May 2016. The injury that he sustained was relatively minor. However, there were pre-existing degenerative changes that he aggravated causing symptoms and requiring surgery.
Dr Caldwell's report of 21 October 2024 centers mainly on the degenerate tear in the medial meniscus. However, he also states on page 2 "He had a long-term preexisting degenerative change in the medial compartment and the patellofemoral joint with a trivial injury or incident that caused the failure of the meniscus and rapid deterioration of the arthritis".
Dr Dixon in his report dated 24/4/24 states ‘His work as a labourer ... causing
aggravation of a disease condition’ which is what I have stated.
However, he then states ‘These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High school.
With respect this is incorrect. The degenerative conditions are constitutional
exemplified by the fact that not all High school maintenance workers suffer from
degenerative changes.
Second. Peter McMillan was employed as a maintenance General Assistant, not as a labourer which implies more consistent hard work which was not part of his job description.
It is my opinion that Peter McMillan's nature and condition of his employment
activities with the DoE is the main contributing factor to aggravating any lumbar
condition. His employment has not caused the underlying condition. The CT scan performed on 26 July 2018 and the MRI on 24 October 2018 show well-established degenerative changes and these are the main contributing factor to his condition.
As stated above, I do not agree with Dr Dixon. It is my opinion that the degenerative changes were pre-existing and aggravated by, and not caused by, his work at Young High school. I certainly agree that his work at the Department of Education was not heavy or repetitive.
As stated, Dr Caldwell in his report concentrates mainly on the degenerate medial meniscus tear but agrees that there were pre-existing degenerative changes in the knee at the time of the injury.”
In a report dated 18 March 2025, Dr Alan Skapinker, occupational health physician, (respondent ALAD page 40) noted that the applicant had been referred to him for a review of current capacity and possible upgrade for a return to work. He noted that the applicant continued to complain of low back pain and of skeletal pain at multiple areas of his body including the cervical spine, both shoulders, thumbs, wrists and both knees, ankles and feet.
Reports of treating doctors
In a report dated 1 February 2016, Dr Vinny Mamo, treating orthopaedic surgeon, (R page 55) noted that on 22 July 2015 the applicant was going up and down ladders to get printer cartridges when he turned and twisted and felt pain over the medial aspect of his left knee. He noted that the applicant had no previous problems with his left knee and made a diagnosis of symptomatic patellofemoral and medial tibiofemoral arthritis with an intra-substance tear of the medial meniscus.
Dr Mamo noted:
“On MRI [performed on the 4th November 2015 there are some signs of chondral wear over the medial and lateral patellar facets and on the medial femoral condyle. These have resulted in some mild pain but the majority of this gentleman’s pain is due to the torn medial meniscus.”
In an Operation Report dated 19 May 2016 (ARD page 59), Dr Mamo noted that he had performed a left knee arthroscopy, partial medial meniscectomy and chondroplasty. He commented that the intra-operative findings were more severe that the MRI changes from 2015 and it was likely that the applicant “will succumb” to a knee replacement somewhat earlier than anticipated.
In a report dated 28 July 2016 (ARD page 61), Dr Mamo noted that the applicant’s medial knee pain had improved but he had significant central and medial parapatellar pain. He noted “prolonged walking around the workplace has caused him pain”.
In a report dated 9 September 2016 (ARD page 63), Dr Bruce Caldwell, treating orthopaedic surgeon, reported:
“On 17 May 2016 he underwent an arthroscopy on the left knee with a partial medial menisectomy and a chondroplasty.
At surgery he was noted to have diffuse Grade 11-111 changes across most of the patella including medial and lateral facets. There were mild changes in the trochlea. The medial femoral condyle had diffuse changes with wear to Grade Ill in flexon and a gentle chondroplasty was performed.
The medial tibial plateau had mild changes as well indicating he had pretty much medial compartment osteoarthritis.
He had a radial oblique tear in the posterior horn of his medial meniscus basically with a radial posterior horn detachment and he underwent a medial meniscectomy.
A posterior horn root repair was not performed. He underwent a meniscectomy, of course, which eventually essentially defunctioned the medial compartment in a joint that has already got arthritis.
The lateral compartment was reasonably preserved, as were the cruciates.
Not surprisingly he has continued to have symptoms on the medial aspect of his knee primarily due to the loss of medial meniscal function and medial compartment arthritis.
He also has some anterior knee discomfort, which is due to the defunction of his quadriceps with his various discomforts and the knee is not particularly doing well.
On examination today he stands in a fairly normal alignment. Examination of the ligaments revealed intact collateral ligaments, normal cruciate ligaments and a good range of motion. Palpation of the knee revealed tenderness on the medial joint line. The patellofemoral joint had mild fine crepitus, but it wasn't particularly tight or maltracking.
I sent him off for some x-rays today, which showed a normal patella with good preservation of the patellofemoral joint. There was probably 25% narrowing of the medial compartment, that is, moderate osteoarthritic change.
I have sent him off for a 3' weight-bearing film and repeat MRI scan because I think we are going to see that he has got progressive medial compartment degenerative change and the options are going to be either a realignment osteotomy or a unicompartment replacement.”
In a questionnaire concerning a proposed Oxford knee replacement (partial) sent by the insurer dated 21 October 2016 (ARD page 68), Dr Caldwell expressed the view that the work injury on 22 July 2015 caused “posterior horn tear medial meniscus which completely defunctions the meniscus, marked exacerbating medial wear”. He stated that other contributing factor to the requirement for surgery was preexisting Grade II (of IV) wear. In answer to the question “Is it likely Peter would have required surgery at or about this stage of his life had he not been at work or had not worked in this particular employment” Dr Caldwell wrote: “probably eventually but not predictable as to time.”
In the Operation Report dated 24 November 2016 (ARD page 71), Dr Caldwell noted that an Oxford unicompartment replacement had been performed in the left knee. He noted that the patellofemoral joint was in excellent condition with quite normal cartilage and the lateral compartment was equally well preserved.
In a report dated 13 January 2017 (ARD page 72), Dr Caldwell noted that the applicant was eight weeks post left Oxford partial knee replacement and he had been highly active. He noted that the only complaint was a 5 degree loss of extension with 120 degrees of flexion and a slight flexion deformity.
In a report dated 5 July 2017 (ARD page 73) Dr Caldwell noted that the applicant was delighted with the outcome following the Oxford unicompartment replacement left knee and he had a full range of motion, and a stable, pain free knee.
In a report dated 22 November 2017 (ARD page 74), Dr Caldwell noted that the applicant had anterolateral pain in the right knee, mainly in the patellofemoral area and a bit on the medial side. He considered that the applicant had some mild osteoarthritic changes in the knee and recommended physiotherapy and anti-inflammatories.
In a report dated 21 October 2024 to the applicant’s solicitors, McCabe Partners (ARD page 76), Dr Caldwell expressed the opinion that people who do heavy physically demanding jobs are at higher risk of tearing their menisci as they age. He wrote:
“In Mr McMillan's case he was on a ladder and he turned. This is not, of course, enough to tear a normal meniscus in a youthful person, but certainly maybe sufficient to tear a degenerate meniscus in an aged person.”
Dr Caldwell noted that in the longer term the complete loss of the function of the meniscus due to the transverse tear going across the fibres and defunctioning the meniscus can lead to marked aggravation and rapid deterioration of osteoarthritis in the knee. He stated that the medial tear in the applicant’s left knee is undoubtedly degenerate.
Dr Caldwell considered that all employment prior to his occupation and his time at the school had contributed over a long period to the wear and the subsequent tears in his knee. He noted that shearing for instance was a very physical job.
Dr Caldwell stated that:
“There really is no such thing as a degenerate tear. There is a tear in a degenerate meniscus, which we all shorten to say a degenerate tear. The tear itself is physical. It is an injury. The meniscus itself is degenerate.”
Dr Caldwell concluded that the applicant had a long-term pre-existing degenerative change in the medial compartment and the patellofemoral joint and a trivial injury or incident that caused a failure of the meniscus and rapid deterioration of the arthritis. He wrote: “This began with an arthroscopy and finished with an Oxford knee replacement. The injury to his left knee was an aggravation of slowly developing pre-existing degenerative change”. He agreed with the statements presented by Dr Dixon and Dr Bosanquet that the applicant had arthritic change in the patellofemoral joint and medial compartment with a degenerative tear in the medial meniscus requiring resection on 19 May 2016 by Dr Mamo.
In a report of the MRI left knee dated 5 November 2015 (ARD page 111), Dr A Scott, radiologist, noted the clinical history of “Working on a ladder three months ago, rotational injury on the ladder (no fall). Persisting pain and discomfort.” Dr Scott’s findings included:
“Degenerative osteophytic spurring is present about the margins of the patella and t h e chondral surfaces of the patella show Grade II chondromalacia in the medial and lateral faces. with less than 50% chondral thinning of the patellar articular surfaces. The chondral cover of the femoral trochlear articular surfaces is generally intact. Diffuse peri-articular osteophytic spurring is present about the medial tibiofemoral compartment especially anteriorly…”
Dr Scott concluded:
“Low grade chondromalacia patellae. Non-specific pre-ligamentous oedema. This may be due to injury or habitual positioning of the knee (for example, kneeling). Mild chondromalacia of the medial femorotibial compartment with fissuring and fibrillation of the weight bearing chondral surface. Strain of the deep layer of the medial collateral ligament.
Diffuse Grade II signal in the medial meniscus. No convincing meniscal tear was seen.”
In a report of the X-ray left knee dated 9 September 2016 (R ALAD page 35), Dr Haewon Kim noted a clinical history of “medial menisectomy and OA, PF pain”. He found joint space narrowing with osteophyte formation in keeping with OA which was most marked in the medical compartment followed by the patellofemoral compartment. In a second report of weight bearing X-rays dated 9 September 2016, Dr Kim noted that there was OA of both knees with medial compartment joint space loss bilaterally with the left worse that the right.
In a report of the MRI left knee dated 9 September 2016 (R page 63), Dr Rony Kapoor, radiologist, noted the clinical history of “? Medial meniscal tear”. Dr Kapoor wrote:
“1. Large complete radial tear of the posterior horn of the medial meniscus adjacent to the root attachment with secondary meniscal body extrusion.
2. Focal Grade III/IV chondral wear over the central weight bearing aspect of the medial femoral condyle. This is on a background of chondral thinning of at least 50%.
3. Intermediate signal within the mid body fibres of the PCL. This can be seen as a result of a previous sprain / low grade injury.
4. Pre patellar bursitis.
5. MCL / pes bursitis.”
In a report of X-ray right knee dated 17 November 2017 (ARD page 113), Dr J Rusli, radiologist, noted a clinical history of a right knee injury. He wrote:
“There is minimal to moderate osteoarthritic change of the medial compartment with similar change at the patellofemoral compartment. No significant joint effusion. No fracture or dislocation. An accessory ossicle noted adjacent to the lateral aspect of the patella.”
In a report of the MRI right knee dated 21 November 2017 (ARD page 116), Dr Niranjan Ganeshan, radiologist, noted the clinical history of right knee injury. He noted that there were changes of the medial tibial plateau with similar Grade II changes involving the lateral tibiofemoral compartment. He noted Grade 11-111 chondromalacia patellae. There is an intact extensor mechanism. He wrote:
“Conclusion:
1. Small meniscal contusion of the posterior root attachment of the medial meniscus.
2. Tibiofemoral chondrosis with further patellofemoraI changes.
3. Probable chronic prepatellar bursa! inflammation (? haemorrhagic).
4. Joint effusion with mild synovitis.”
In a report of X-ray bilateral hips, knees, hands, both hips, pelvis, both knees and both hands dated 12 May 2022 (ARD page 120), Dr Allan, radiologist, noted “clinical history: ? OA”.
Dr Allan made the following findings:“Findings:
X-RAY BOTH HIPS AND PELVIS
Some minor osteophytic lipping noted in the lateral acetabular margin. Joint spaces maintained in both hip joints.
No other abnormality identified in either hip joint or in the remainder of bony pelvis.
SI Joints appear normal.
X-RAY RIGHT KNEE
Degenerative changes present. Early osteophytic lipping noted.
Moderate narrowing of the medial joint space. No other abnormality identified.
X-RAY LEFT KNEE
Joint prosthesis present in the medial compartment of the left knee joint…
X-RAY BOTH HANDS
Mild degenerative changes present in several of the interphalangeal joints.
Slight joint space narrowing in the right and left first MCP joint.
Minor degenerative changes noted in the left first carpometacarpal joint and osteophytic lipping noted and slight joint space narrowing.
Degenerative changes noted in right MCP joint with osteophyte formation present and marked joint space narrowing.
Joint space narrowing between the distal radius and scaphoid in the right wrist.
No other abnormality identified.
No bone erosions or features of erosive arthropathy evident.”
In a report of the MRI cervical spine dated 3 April 2024 (ARD page 126), Dr Ko, radiologist, noted a clinical history of “OA”. He concluded:
“There is canal narrowing noted especially at C6/7 level due to broad-based disc protrusion. This appears to mildly compressed right side cord but no myelopathy changes evident. Elsewhere, note made of spondylotic change and associated multilevel bilateral foraminal narrowing and potential impingement on exiting nerve root.”
In a report of an ultrasound left foot dated 19 February 2025 A ALAD page 1), Dr Paul Lowenstein, radiologist, noted that the findings were consistent with degenerative inflammatory changes. He recommended an X-ray of the foot.
The clinical notes of Boorowa Street Practice (Reply page 85 -194) included the following entries:
(a) On 24 October 2000, Dr Ian Sullivan made a diagnosis of back pain and prescribed Celebrex and Panadeine Forte.
(b) On 20 October 2015, Dr Peter Hamilton-Gibbs wrote:
“On 22/7/15 working on a ladder getting and putting printing cartridges on a shelf. Twisted L knee while still on ladder and felt a minor tearing sensation. Ongoing discomfort and uncomfortable on walking and sensation “clunking”. Now 3 months and symptoms persist…”
(c) On 3 December 2015, Dr Peter Hamilton-Gibbs noted: “pain worse with increased loading (Lift at work has been out of action).”
(d) On 21 July 2016, Dr Peter Hamilton-Gibbs noted: “walking has aggravated knee. Problems anterior knee and around patella region. Walks around the area as part of his duties…”
(e) On 18 August 2016, Dr Peter Hamilton-Gibbs noted: “Frustrated with ongoing symptoms. Pain mainly sharp and relating to Patellofemoral region. Worse after walking any distance and job requires considerable walking.”
(f) On 15 December 2016, Dr Peter Hamilton-Gibbs noted: “So far good result from hemiarthroplasty knee.”
(g) On 17 February 2017, Dr Peter Hamilton-Gibbs noted: “Painful swollen knee Left. Has been setting up school for exams and dome 100 tables…Diagnosis: Synovitis left knee.”
(h) On 14 November 2017, Dr Thet Maung, noted: “knee twisted when he lift (sic) exam tables at school…right knee pain…encourage using crutches”.
(i) On 28 November 2017, Dr Maung noted: “pain recurred 2 days ago; cannot straighten leg. Reason for visit: Right knee pain.”
(j) On 21 December 2017, Dr Maung noted “knee better”. Certified fit for pre-injury duties in relation to right knee injury.
(k) On 25 July 2018, Dr Natasha Lalani noted: “hurt his back whilst moving cupboard – yesterday afternoon.”
(l) On 8 March 2019, Dr Lalani noted: “Peter reports doing well at trial of normal duties in school for 1 month no episodes of pain in the school.”
(m) On 27 April 2022 Dr Sajeeva Polgolla noted: “1. b/l knee pains. L knee partial knee was replaced. Walking is not - ? normal wears off lateral side of the shoe…2. b/l hand pains 2nd and 3rd MCP joint pains and swelling know Gout patient no haemachromatosis…”
(n) On 12 July 2022, Dr Polgolla noted: discussed …xray hands /knees/hips reports …xrays -wear and tear patient will self present to physio…”
(o) On 9 March 2023, Dr Godawatta noted: “Peter’s pains not settling down he is still in severe pains especially after physiotherapy…”
(p) On 18 May 2023, Dr Godawatta noted: “He has started working at school having suitable duties as recommended no worsening of symptoms.”
(q) On 23 September 2023, Dr Krishmali Godawatta noted: “Presenting for back pain …having lower back pains back injury happened at work while he was moving musical instruments at school. Started to have back pains and shooting pains in the L leg.”
(r) On 11 October 2023, Dr Godawatta noted that the applicant presented with his lawyer and rehabilitation consultant. He noted that the applicant complained of bilateral knee pains, left sided sciatic pains and also “crawling sensation in bilateral feet”. He noted that the applicant also complained about “hand and feet arthritis”.
(s) On 27 March 2024, Dr Asitha Wickramaratne first issued an imaging request for “CT - C - spine -OA”. Dr Wickramaratne then noted: workers comp review – post surgery.”
(t) On 3 December 2024, Dr Wickramaratne noted that the applicant attended for Workcover and unrelated conditions. Under “unrelated conditions”,
Dr Wickramaratne noted “med review scripts done for gord and pain meds.”(u) On 4 February 2025, Dr Wickramaratne noted: Reason for visit:
“WORK COVER+ NORMAL CONSULT
Actions:
Letter printed….
Imaging request printed: uss scan - I/foot lump- uss scan.
workers comp consult
review- capacity- wating on settlement few issues
advised to do physio lose Weight
Physical activity
Mobility etc
paper work completed.
-- unrelated long consult
1. review- cardiologist letter- non cardiac - advised to have sleep study
discussed same and referral to AMCAL
2. review- I/foot and ankle pain- ? oa- sent for uss scan follow up with reports”
Bilateral shoulder
As noted above, the applicant in his statement dated 10 October 2024 when describing the pain in his back between 2018 and 2022, also wrote:
“62 …. I was also suffering pain in the neck, both shoulders, both hands, both knees and both ankles.”
In his statement dated 7 November 2024, the applicant stated that his job with the respondent was a “physical demanding job and put a lot of pressure on your neck, shoulders, elbows, wrists, back, hips, knees and ankles”. The applicant stated that all his jobs had been “extremely physical, labouring jobs which cause a slow deterioration in every part of my body”.
Dr Shiplanker, in a report dated 18 March 2025, noted that the applicant complained of skeletal pain at multiple areas of his body including both shoulders.
Dr Bosanquet made findings on examination in respect of the shoulders as follows: “Both shoulders exhibited a restricted range of movement with forward flexion 80°, extension 50 °, abduction 80 °, adduction 80 °. Internal and external rotation were full.”
Dr Dixon, in his report of 24 April 2024, on examination, noted:
“He had stiffness on elevation of his shoulders with forward flexion 110 degrees bilaterally, active abduction 90 degrees on the left and 70 degrees on the right. Extension was 40 degrees bilaterally as was adduction. External rotation was 80 degrees bilaterally and internal rotation 60 degrees on the right and 50 degrees on the left. His shoulder girdle power was grade 4 out of 5 bilaterally and there was tenderness of the deltoid muscle as far as its insertion.”
Dr Dixon expressed the view that the applicant due to the nature and conditions of his work at Young High School, developed pain and stiffness in his shoulders. Dr Dixon made a diagnosis of bilateral shoulder brachialgia with post-traumatic stiffness with deltoid pain with impingement on abduction bilaterally.
Dr Dixon expressed the opinion that the above conditions were causally related and due to the nature and conditions of his employ by the Department of Education at Young High School.
Dr Dixon then wrote:
“His injuries are occupational for labourers working at high schools and are characterised as a disease process which is notoriously heavy and physically demanding on the body, especially the back, as well as the neck, both hands, both hips, knees and ankles which are underlying, pre-morbid and pathological conditions as a result of his work as a labourer, which is notoriously heavy and physically demanding on these areas of the body, causing aggravation of a disease condition, from which the claimant suffers.
His repetitive work as a General Assistant at Young High School has led to the acceleration and aggravation of the pain in his neck, both hands, upper back, lower back, hips, knees and ankles. These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High School.”
Dr Dixon made no reference in the paragraphs above to the shoulders when expressing that opinion as to causation.
There appears to be no radiological investigations of the shoulders. Although the applicant stated when describing the pain in his back between 2018 and 2022, that he was also suffering pain in both shoulders, there appears to be no reference to complaints of pain or any other symptoms in relation to the shoulders in the GP’s notes. The applicant does not appear to have received any treatment in relation to his shoulders. The first reference in any clinical notes or medical reports to any problems with the shoulders is made in Dr Dixon’s report of 24 April 2024.
I do accept that it is not necessary that complaints of symptoms in the shoulders had to be made to any doctor before a disease injury can be established. The absence of any contemporaneous complaints is not determinative (AAI Ltd v McGriffin [2016] NSW CA 229 at [64] – [68] and Normington v QBE Insurance (Australia) Ltd [2021] NSW SC 548) .
The onus of proof is on the applicant to prove on the balance of probabilities that under s 4(b)(i) of the 1987 Act he has a disease contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease. Dr Dixon’s diagnosis is bilateral shoulder brachialgia with post-traumatic stiffness with deltoid pain with impingement on abduction bilaterally. Dr Bosanquet does not make a diagnosis in respect of the shoulders but expressed the view that any problems in the shoulders were age-related plus related to his previous work as a shearer for 19 years, as a concreter and a builder.
Dr Dixon does not, in my view, make any diagnosis of a disease in the shoulders. Brachialgia is not a disease itself, but rather a symptom of an underlying condition that causes pain in the shoulder. Dr Dixon does not identify the trauma that caused any post-traumatic stiffness. Further, Dr Dixon does not identify specific activities or aspects of the applicant’s work with the respondent, apart from lifting and carrying that could cause any condition in the shoulders. Nor does Dr Dixon consider any other causative factors. In the absence of a diagnosis of a disease by Dr Dixon, I am not satisfied on the balance of probabilities that in relation to the shoulders the applicant has a disease contracted in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied that the employment was the main contributing factor to contracting any disease in the shoulders. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor.
In terms of the allegation under s 4(b)(ii) of the 1987 Act of an aggravation and acceleration the applicant must prove on the balance of probabilities that he has suffered an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease to his bilateral shoulders, and that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. As noted above,
Dr Dixon makes no diagnosis of a disease in the shoulders. Dr Bosanquet makes no diagnosis of any disease in the shoulders. In the absence of any disease in the shoulders, I am not satisfied after considering the evidence that that the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease in the bilateral shoulders in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease in the bilateral shoulders. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor. In making these findings I have preferred the opinion of Dr Bosanquet over that of Dr Dixon in relation to causation of a disease condition or aggravation and acceleration of a disease in the bilateral shoulders.
Bilateral wrists and thumbs
In his statement dated 10 October 2024, the applicant stated that over the years of working for the respondent he started suffering pain and discomfort in his hands. When describing the pain in his back between 2018 and 2022, the applicant stated that he was also suffering pain in both hands.
In his statement dated 7 November 2024, the applicant stated that his job with the respondent was a “physical demanding job and put a lot of pressure on your neck, shoulders, elbows, wrists, back, hips, knees and ankles”. The applicant stated that “all my jobs had been extremely physical, labouring jobs which cause a slow deterioration in every part of my body”.
In an entry dated 12 July 2022, Dr Pogolla noted he discussed X-ray hands/knees/hips reports and wrote: “xrays – wear and tear patient will self present to the physio”.
In a report of “XR Bilat hips knees and hands” dated 12 May 2022, Dr S Allen, radiologist, (ARD 120) noted:
“X-RAY BOTH HANDS
Mild degenerative changes present in several of the interphalangeal joints.
Slight joint space narrowing in the right and left first MCP joint.
Minor degenerative changes noted in the left first carpometacarpal joint and osteophytic lipping noted and slight joint space narrowing.
Degenerative changes noted in right MCP joint with osteophyte formation present and marked joint space narrowing.
Joint space narrowing between the distal radius and scaphoid in the right wrist.
No other abnormality identified.
No bone erosions or features of erosive arthropathy evident.”
Dr Bosanquet, in his report dated 29 July 2024, made examination findings in relation to the hands and thumbs as follows:
“The left elbow ROM was 0° to 120 °. He had tenderness at the base of both thumbs with restriction of movement, particularly opposition on the right side where he lacked 3 cm and 1 cm on the left. He lacked full flexion in all the fingers into the palm due to generalised stiffness.”
Dr Bosanquet made a diagnosis of age-related degenerative changes in both thumbs and wrists.
Dr Bosanquet, in his report of 19 August 2024, expressed the opinion that there has been no specific injury to both wrists and both thumbs. He was of the view that the problems in those areas were age-related plus related to his previous work as a shearer for 19 years, as a concreter and a builder. He expressed the opinion that there had been no acceleration, exacerbation or deterioration of the wrist and thumbs through his employment at Young High School.
Dr Dixon, in his report of 24 April 2024, noted on examination:
“There was stiffness of both wrists with dorsi flexion 40 degrees, palmar flexion 50 degrees, radial deviation 20 degrees and ulnar deviation 30 degrees. His grip strength was grade 4 out of 5 bilaterally, his thenar power and intrinsic power were grade 5 out of 5. There was stiffness of each thumb with active abduction 40 degrees, with MCP flexion 40 degrees, IP flexion 60 degrees
and opposition and adduction 2cm from the palm. There was tenderness at the base of the thumb and the carpo metacarpal joint region.”
Dr Dixon expressed the view that the applicant due to the nature and conditions of his work at Young High School, developed pain and stiffness in his wrists and thumbs. He made a diagnosis of post-traumatic stiffness of both wrists with arthritic change and post-traumatic stiffness of both thumbs with arthritic change.
Dr Dixon expressed the opinion that the above conditions were causally related and due to the nature and conditions of his employment by the respondent at Young High School. He expressed the view that the applicant’s repetitive work as a General Assistant at Young High School had led to the acceleration and aggravation of the pain in both hands. He stated that:
“These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High School”. Dr Dixon concluded that his employment had been a substantial contributing factor due to the injuries sustained and diagnosed, because of the repetitive nature of the manual work with heavy lifting and carrying, repetitive bending and stooping, kneeling and squatting…”
Dr Shiplanker, in a report dated 18 March 2025, noted that the applicant complained of skeletal pain at multiple areas of his body including both thumbs and wrists.
Dr Allen in his report of the X-rays dated 12 May 2022 refers only to conditions that are described various degenerative changes in the hands, some of which he described as mild or minor. The changes in the right MCP joint with osteophyte formation present and marked joint space narrowing are more significant.
Dr Dixon makes a diagnosis of post-traumatic stiffness of both wrists with arthritic change and post-traumatic stiffness of both thumbs with arthritic change. Dr Bosanquet made a diagnosis of age-related degenerative changes in both thumbs and wrists.
Although the applicant stated when describing the pain in his back between 2018 and 2022, that he was also suffering pain in both hands, there appears to be no reference to complaints of pain or any other symptoms in relation to his hands in the GP’s notes before 12 July 2022. The applicant does not appear to have received any treatment in relation to his hands.
The onus of proof is on the applicant under s 4(b)(i) of the 1987 Act to prove on the balance of probabilities that he has a disease contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease. Dr Dixon’s diagnosis is arthritis in both hands and the thumbs. Dr Bosanquet made a diagnosis of age-related degenerative changes in both thumbs and wrists but expressed the view that any problems in the hands and thumbs were age-related plus related to his previous work as a shearer for 19 years, as a concreter and a builder.
I am satisfied that the applicant has arthritis in his wrist and thumbs.
Dr Dixon does not identify specific activities or aspects of employment, apart from lifting and carrying, that could cause any condition in the wrists and thumbs. Nor does Dr Dixon consider any other causative factors such as age related degenerative change or work in his cherry orchard. On balance, I am not satisfied that that the applicant has a disease of his wrists and thumbs contracted in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied that the employment was the main contributing factor to contracting any disease in the bilateral wrists and thumbs.
Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor. I am satisfied that taking into the account the applicant’s age that age related degeneration would be a not insignificant contributing factor to the arthritis in the wrists and hands.In terms of the allegation of an aggravation and acceleration the applicant under s 4(b)(ii) of the 1987 Act must prove on the balance of probabilities that he has suffered an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease to his bilateral wrists and thumbs, and that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the arthritis.
I am not satisfied after considering the evidence that the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease in the wrists and thumbs in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied under s 4(b)(ii) of the 1987 Act that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease in the bilateral wrists and thumbs. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor. In making these findings I have preferred the opinion of
Dr Bosanquet over that of Dr Dixon in relation to causation of a disease condition or aggravation and acceleration of a disease in the bilateral wrists and hands. I am satisfied that taking into the account the applicant’s age that age related degeneration would be a not insignificant contributing factor to the arthritis in the wrists and hands.
Bilateral hips
The applicant in his statement dated 10 October 2024 stated that over the years of working for the respondent, he started suffering pain and discomfort in the neck, both shoulders, both hands, the upper back, the lower back, both legs, both knees, more so the right knee and both ankles. When describing the pain in his back between 2018 and 2022, the applicant stated that he was also suffering pain in the neck, both shoulders, both hands, both knees and both ankles. There was no reference to the hips in these parts of the applicant’s statement.
In his statement dated 7 November 2024, the applicant stated that this job with the respondent was a “physical demanding job and put a lot of pressure on your neck, shoulders, elbows, wrists, back, hips, knees and ankles”. The applicant stated that all my jobs had been “extremely physical, labouring jobs which cause a slow deterioration in every part of my body”.
In an entry dated 12 July 2022, Dr Pogolla noted he discussed X-ray hands/knees/hips reports and wrote: “xrays – wear and tear patient will self present to the physio”.
In a report of “XR Bilat hips knees and hands” dated 12 May 2022, Dr S Allen, radiologist, noted:
“X-RAY BOTH HIPS AND PELVIS
Some minor osteophytic lipping noted in the lateral acetabular margin. Joint spaces maintained in both hip joints.
No other abnormality identified in either hip joint or in the remainder of bony pelvis.
SI Joints appear normal.”
Dr Bosanquet made no diagnosis in respect of the hips. However, in his report dated
29 July 2024, he noted on examination that there was no tenderness over the greater trochanter of each hip where the applicant had a good range of movement.Dr Dixon, in his report of 24 April 2024, noted on examination:
“There was symmetrical range of motion of both hips without groin pain but there was tenderness of the trochanteric bursal region of both hips which are painful on weight bearing”.
Dr Dixon wrote:
“In summary this claimant, due to the nature and conditions of his employ at Young High School, developed pain and stiffness in his neck, shoulders, wrists and thumbs and lower back pain with radicular complaint with bilateral buttock sciatica and left sciatica and pain and stiffness in his knees and ankles.”
Dr Dixon, despite not referring to any development of pain or stiffness in the hips, proceeded to make a diagnosis of trochanteric bursitis of both hips with pain on walking. Dr Dixon expressed the opinion that the above conditions were causally related and due to the nature and conditions of his employment by the Department of Education at Young High School.
Dr Dixon then wrote:
“His injuries are occupational for labourers working at high schools and are characterised as a disease process which is notoriously heavy and physically demanding on the body, especially the back, as well as the neck, both hands, both hips, knees and ankles which are underlying, pre-morbid and pathological conditions as a result of his work as a labourer, which is notoriously heavy and physically demanding on these areas of the body, causing aggravation of a disease condition, from which the claimant suffers.
His repetitive work as a General Assistant at Young High School has led to the acceleration and aggravation of the pain in his neck, both hands, upper back, lower back, hips, knees and ankles. These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High School.”
Dr Shiplanker, in his report dated 18 March 2025, noted that the applicant complained to him of skeletal pain at multiple areas of the body including the cervical spine, both shoulders, thumbs, wrist and wrists and both knees, ankles and feet. No reference was made to the hips.
The applicant’s investigations include X-rays of both hips, pelvis, on 12 May 2022 which showed some minor osteophytic lipping of the lateral acetabular margins. The joint spaces were maintained in both hips and there was no other abnormality in either hip joint or in the pelvis. The SI joints appeared normal.
There appears to be no evidence that the applicant was treated for trochanteric bursitis.
The onus of proof is on the applicant under s 4(b)(i) of the 1987 Act to prove on the balance of probabilities that he has a disease contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease. Dr Dixon’s diagnosis is trochanteric bursitis in both hips. Dr Bosanquet made no diagnosis in respect of the hips and found on examination that there was no tenderness over the greater trochanter of each hip, where the applicant had a good range of movement. I am satisfied that when
Dr Bosanquet examined the applicant, some months after Dr Dixon’s examination, that the tenderness of the trochanteric bursal region of both hips had resolved. Further, I note that
Dr Shiplanker, who examined the applicant on 13 March 2025, did not report any complaints in respect of the hips.
On balance, I am not satisfied under s 4(b)(i) of the 1987 Act that that the applicant has a disease in the hips contracted in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied under s 4(b)(i) of the 1987 Act that the employment was the main contributing factor to contracting any disease in the bilateral hips. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor.
In terms of the allegation of an aggravation and acceleration the applicant under s 4(b)(ii) of the 1987 Act must prove on the balance of probabilities that he has suffered an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease to his bilateral hips, and that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the arthritis.
I am not satisfied after considering the evidence that under s 4(b)(ii) of the 1987 Act the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease in the hips in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied under s 4(b)(ii) of the 1987 Act that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease in the bilateral hips. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor. In making these findings I have preferred the opinion of Dr Bosanquet over that of Dr Dixon in relation to causation of a disease condition or aggravation and acceleration of a disease in the bilateral hips.
Bilateral ankles and subtalar joints
In a statement dated 7 November 2024, the applicant stated that when he commenced employment with the respondent in 2008, he had no ankle pain. In his statement dated
10 October 2024 the applicant described the pain in his back between 2018 and 2022 and then stated that he was also suffering pain in both ankles. The applicant described his job as a physical demanding job and stated that it “put a lot of pressure on your neck, shoulders, elbows, wrists, back, hips, knees and ankles”. The applicant stated that all my jobs had been “extremely physical, labouring jobs which cause a slow deterioration in every part of my body”.Dr Wickramaratne, in a consultation on 4 February 2025, noted the applicant had attended for a Workcover and normal consultation. Dr Wickramaratne noted:
“Imaging request printed: uss scan - I/foot lump- uss scan.
workers comp consult
review- capacity- wating on settlemt few issues
advised to do physio lose Weight
Physical activity
Mobility etc
paper work completed.
-- unrelated long conuslt
1. review- cardiologist letter- non cardiac- advised to have sleep study
discussed same and referral to AMCAL
2. review- I/foot and ankle pain- ? oa- sent for uss scan follow up with reports.”
In a report of an ultrasound of left foot dated 19 February 2025, Dr Paul Lowenstein, radiologist, noted a clinical history of a lump and painful anterior medial ankle. He made the following findings:
“The palpable lump corresponds to cortical irregularity and synovial
hypertrophy and fluid in the anterornedial ankle joint.
In addition there is cortical irregularity and synovial hypertrophy and fluid in
the Lisfranc joints. Similar changes are observed in the Chopart's joint.
Comment: The findings above are consistent with degenerative inflammatory
changes. An x-ray of the foot is recommended.”
Dr Shiplanker, in a report dated 18 March 2025, noted that the applicant complained of skeletal pain at multiple areas of his body including both ankles and feet.
Dr Bosanquet in his report of 29 July 2024 noted that due to his age and background of heavy work, the applicant developed, without injury, pain in his ankles and feet.
Dr Bosanquet made findings on examination of some stiffness of flexion and extension and subtalar joint movement in both ankles, consistent with age degenerative changes. He made a diagnosis of age-related degenerative changes in the ankles and subtalar joints.
In his report of 19 August 2024, Dr Bosanquet expressed the view that the problems in the ankles and sub talar joints were age-related and largely a result of his employment prior to working for the respondent. He expressed the opinion that opinion there had been no acceleration, exacerbation or deterioration of these areas through his employment at Young High School.
Dr Dixon, in his report dated 24 April 2024, noted on examination:
“The range of motion of his both ankles was dorsi flexion 10 degrees, plantar flexion 25 degrees and range of motion of the subtalar joints show aversion 10 degrees and inversion degrees. There was tenderness of both anterolateral ankle joint mortices. He had satisfactory range of motion of the toes.”
Dr Dixon expressed the view that he applicant due to the nature and conditions of his work at Young High School, developed pain and stiffness in his ankles. Dr Dixon made a diagnosis of post traumatic stiffness of both ankles and subtalar joints.
Dr Dixon expressed the opinion that the conditions in the ankles and sub talar joints were causally related and due to the nature and conditions of employment at Young High School. He wrote:
“His injuries are occupational for labourers working at high schools and are characterised as a disease process which is notoriously heavy and physically demanding on the body, especially the back, as well as the neck, both hands, both hips, knees and ankles which are underlying, pre-morbid and pathological conditions as a result of his work as a labourer, which is notoriously heavy and physically demanding on these areas of the body, causing aggravation of a disease condition, from which the claimant suffers.”
Dr Dixon expressed the opinion that the above conditions were causally related and due to the nature and conditions of his employment by the respondent at Young High School. He expressed the view that the applicant’s repetitive work as a general assistant at Young High School had led to the acceleration and aggravation of the pain in both ankles. He stated that “These degenerative conditions are occupational disease for workers such as the claimant working as a labourer at Young High School”. Dr Dixon concluded that his employment has been a substantial contributing factor due to the injuries sustained and diagnosed, because of the repetitive nature of the manual work with heavy lifting and carrying, repetitive bending and stooping, kneeling and squatting…”.
The onus of proof is on the applicant under s 4(b)(i) of the 1987 Act to prove on the balance of probabilities that he has a disease contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease. Dr Dixon’s diagnosis is post-traumatic stiffness of both ankles and subtalar joints. However, Dr Dixon does not identify the trauma that he considers caused the stiffness in the ankles and sub talar joints. Dr Bosanquet made made a diagnosis of age-related degenerative changes in the ankles and subtalar joints.
The applicant, in his statement dated 10 October 2024, when describing the pain in his back between 2018 and 2022, stated that he was also suffering pain in both ankles. It appears, however, that there is no reference in the medical reports and clinical notes to any pain, complaints or problems with the ankles and feet until the applicant saw Dr Dixon in April 2024. I accept that an ultrasound scan of the left foot was carried out on 19 February 2025 and appeared to be related to a lump in the left foot. No investigations of the right ankle or foot have been undertaken.
There is no reference to any pain, complaints or problems with the ankles and feet in the
GPs notes until 4 February 2025, some years after the applicant ceased work for the respondent, and that reference is limited to the left ankle. Further, the GP,
Dr Wickramaratne noted that there was a lump in the left foot and regarded the part of the consultation in relation to the left foot and ankle pain as being a consultation unrelated to the worker compensation consultation during that visit.Dr Dixon does not adequately identify specific activities or aspects of work that could cause post-traumatic stiffness in both ankles and subtalar joints in ankles and sub talar joints. Nor does Dr Dixon consider any other causative factors such as age related degenerative change. On balance, I am not satisfied that that the applicant has a disease in the ankles and sub talar joints contracted in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied that the employment was the main contributing factor to contracting any disease in the ankles and sub talar joints. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor.
In terms of the allegation of an aggravation and acceleration the applicant must prove under s 4(b)(ii) of the 1987 Act on the balance of probabilities that he has suffered an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease to his ankles and sub talar joints, and that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the post traumatic stiffness of both ankles and subtalar joints or the age-related degenerative changes in the ankles and subtalar joints. Dr Dixon was of the view that employment was a substantial contributing factor, Dr Dixon did not express the view that employment was the main contributing factor.
I am not satisfied after considering the evidence that that the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease in the ankles and sub talar joints in the course of employment with the respondent. Further, even if I was wrong in relation to that matter, I am not satisfied that under s 4(b)(ii) of the 1987 Act the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease in the ankles and sub talar joints. In making these findings, I have preferred the opinion of Dr Bosanquet over that of Dr Dixon in relation to causation of a disease condition or aggravation and acceleration of a disease in the ankles and subtalar joints. I am satisfied that taking into the account the applicant’s age that age related degeneration would be a not insignificant contributing factor to the any disease in the ankles and sub talar joints.
CONCLUSION
In conclusion in respect of the claim that the applicant sustained disease injury ss 4(b) (i) and/or 4(b)(ii) of the 1987 Act to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints with a deemed date of injury of 21 September 2022, I find that on the facts there is insufficient evidence to persuade me that the applicant has discharged the onus of proof.
SUMMARY
Award for the respondent in respect of the claims in relation to injury to the bilateral hip, cervical spine, bilateral shoulders, thoracic spine, bilateral wrists, bilateral thumbs, bilateral ankles and subtalar joints with a deemed date of injury of 21 September 2022.
The matter is remitted to the President to refer to a Medical Assessor for assessment of WPI of:
(a) left lower extremity (knee) on 22 July 2018;
(b) right lower extremity (knee) on 30 October 2017;
(c) lumbar spine on 24 July 2018;
(d) lumbar spine deemed to have occurred on 21 September 2022;
(e) left lower extremity (knee) deemed to have occurred on 21 September 2022, and
(f) right lower extremity (knee) deemed to have occurred on 21 September 2022.
All documents attached to the ARD, the Reply and the Applications to Lodge Additional Documents dated 10 March 2025 and 2 April 2025 are to be sent to the Medical Assessor.
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