McNulty v Australian Turf Club Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McNulty v Australian Turf Club Ltd [2024] NSWPIC 704
APPLICANT:	Joseph McNulty
RESPONDENT:	Australian Turf Club Limited
MEMBER:	Karen Garner
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; claim for medical and related expenses of bilateral total knee replacement surgery pursuant to section 60; claim for lump sum compensation for permanent impairment pursuant to section 66; accepted that bilateral total knee replacement surgery was reasonably necessary and that applicant was totally incapacitated for work as a result of that surgery; whether the applicant sustained injury to his bilateral knees pursuant to section 4(b)(ii); whether the bilateral total knee replacements were reasonably necessary as a result of the injury; whether the applicant was and remained totally incapacitated for work as a result of the injury; Held – applicant sustained injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation of a disease process, to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(ii); the bilateral knee replacements performed by Dr Bateman on 23 October 2023 was reasonably necessary as a result of the injury; the applicant was and remained totally incapacitated for work as a result of injury from 23 October 2023 to 29 January 2024; the matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment; the respondent to pay the applicant’s medical and related expenses, including bilateral knee replacements, pursuant to section 60, upon production of accounts, receipts or Medicare Notice of Charge; respondent to pay the applicant weekly compensation in the amount of $1,551.10 per week for the period from 23 October 2023 to 29 January 2024, pursuant to section 36.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation of a disease process, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act ) (the injury). 2. The bilateral knee replacements performed by Dr Bateman on 23 October 2023, was reasonably necessary as a result of the injury. 3. The applicant was and remained totally incapacitated for work as a result of injury from 23 October 2023 to 29 January 2024. The Commission orders: 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 23 October 2023 Body parts: left lower extremity (knee); right lower extremity (knee), and TEMSKI/scarring. Method: Whole person impairment. 5. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. 6. The respondent is to pay the applicant’s medical and related expenses, including bilateral knee replacements, pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge. 7. The respondent to pay the applicant weekly compensation in the amount of $1,551.10 per week for the period from 23 October 2023 to 29 January 2024, pursuant to s 36 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Joseph McNulty (the applicant), currently aged 60 years, has been employed as a gardener at Randwick Racecourse by Australian Turf Club Limited (the respondent) for approximately 35 years since 1989.
By an undated report, the applicant reported a work injury to his left knee sustained on 6 July 1993 when he flexed his left leg in a reflex action when a tail gate caught as he was lifting it off a trailer.
By a report dated 7 July 1993, the applicant reported a work injury to his left knee on 7 July 1993 as he moved out of the was of a reversing tractor.
By report dated 18 July 2006, the applicant reported injury to his right knee when it collapsed as he alighted from a bus and fell as he was travelling to work on 11 July 2006 and the applicant claimed a half-day off work as a result of the injury.
On 1 February 2007, the applicant underwent right knee surgery being high tibial osteotomy.
By letter dated 22 August 2007, the applicant claimed permanent impairment compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 5% whole person impairment (WPI) of his back with a date of injury of 15 May 1999, 15% WPI of his neck with a date of injury of 16 May 2001, 5% WPI of his back with a date of injury of 20 March 2003 and 11% WPI of his right knee with a date of injury of 11 July 2006, and also compensation for pain and suffering.
By Certificate of Determination (COD) dated 25 September 2008 in proceedings WCC 4705/2008, the Workers Compensation Commission determined that the respondent pay the applicant weekly compensation pursuant to s 37 of the 1987 Act and medical expenses pursuant to s 60 of the 1987 Act in respect of injury to his right knee on 11 July 2006.
By Compliance Agreement dated 24 October 2008, the respondent agreed to pay the applicant permanent impairment compensation of $25,000, calculated on the basis of 5% WPI of the back, 10% WPI of the neck, 5% WPI of the back and 9% WPI of the right knee, and an amount for pain and suffering.
By letter dated 11 October 2023, the applicant claimed treatment in the form of whole knee replacement for the right knee, being an artificial aid pursuant to s 59A(6) of the 1987 Act, in accordance with a quote of Dr Ed Bateman dated 11 September 2023.
By letter dated 25 March 2024, the applicant claimed:
(a) weekly compensation for the period from 23 October 2023 to 29 January 2024, pursuant to s 36 of the 1987 Act, calculated on the basis of pre-average weekly earnings (PIAWE) of $1,605;
(b) past medical expenses in the amount of $10,416.85, pursuant to s 60 of the 1987 Act, and
(c) permanent impairment compensation, pursuant to s 66 of the 1987 Act, in the amount of $83,130, calculated on the basis of 29% WPI as assessed by Dr Walder on 14 February 2024.
By email dated 17 April 2024 (Reply 40), the applicant provided further and better particulars of the applicant’s injury. The applicant solicitor stated that, on “11 July 2006, [the applicant], on his way to work stepping off the bus his right knee gave way and fell. This was exacerbated by the ordinary daily grind of his daily job resulting in him requiring bilateral knee replacements in October 2023”.
By email dated 24 April 2024, the applicant amended the claim. The applicant’s solicitor stated that the applicant suffered deterioration of a disease process as a result of the employment duties from 12 July 2006 up until 23 October 2023 causing him to ultimately require bilateral total knee replacements.
By notice dated 4 July 2024, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998, (the 1998 Act), the respondent disputed liability for injury to the applicant’s bilateral knees with a date of injury of 12 July 2006 (which appears should refer to 11 July 2006) on the grounds that it disputed ss 4(a), 9A(1), 4(b)(i), 4(b)(ii), 60 and 66 of the 1987 Act were satisfied.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 2 December 2024, Mr John Gaitanis, counsel, appeared for the applicant, instructed by Masselos & Co Lawyers. Mr Bruce McManamey, counsel, appeared for the respondent, instructed by Moray & Agnew Lawyers.
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.

ISSUES FOR DETERMINATION

At the conciliation/arbitration hearing, counsel agreed, on behalf of their respective clients that:
(a)    the Application to Resolve a Dispute (ARD) is amended (and I so direct):
(i)in relation to injury, with effect that the applicant now claims injury being:
·injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, being an aggravation, acceleration, exacerbation or deterioration of a disease process, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act, and
·in the alternative, a frank injury to his right knee on 11 July 2006 pursuant to s 4(a) of the 1987 Act;
(ii)in relation to the claim pursuant to s 60 of the 1987 Act, with effect that the applicant now seeks a general order for medical expenses including the bilateral knee replacements performed by Dr Bateman on 23 October 2023;
(b)    the applicant sustained a frank injury to his right knee on 11 July 2006 (as noted in the Compliance Agreement dated 24 October 2008) and the matter can be referred to a Medical Assessor for assessment of WPI in respect of that injury;
(c)    the bilateral knee replacements performed by Dr Bateman on 23 October 2023, were reasonably necessary;
(d)    the applicant was and remained totally incapacitated for work as a result of the bilateral knee replacements from 23 October 2023 to 29 January 2024, and
(e)    PIAWE for the claimed period is $1,632.74 and 95% of PIAWE is $1,551.10.
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(b) whether the bilateral knee replacements performed by Dr Bateman on 23 October 2023, was reasonably necessary as a result of the injury, and
(c) whether the applicant was and remained totally incapacitated for work as a result of injury from 23 October 2023 to 29 January 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 30 September 2024.
The applicant stated that he is currently aged 60 years and has been employed by the respondent as a gardener at Randwick Racecourse by Australian Turf Club Limited for approximately 35 years since 1989.
The applicant detailed a history of various injuries and medical treatment to his knees during the course of his employment.
The applicant stated that:
“10.   During my employment as a gardener, he performed many tasks which placed strain on his knees, which included:
Spading turf (digging and lifting out square slabs of turf to be replanted elsewhere. This could be up to 50 times a day and multiple consecutive days.
Plugging (cutting out turf with a tool, awkwardly moving 4kg repetitiously back and forth up to 100 times a day, consecutive days)
Moving rail (doing 3 or 4 laps of a 2400m bending over every 12m to pick up rail and then lifting a 25kg hydraulic gun around to jack legs in spots)
Getting in and out of trucks, tractors and up ladders daily
Whipper snipping consecutive days for 8 hours (rotating the knees and hips in a side-to-side motion)
Bending and lifting fertiliser bags (25kgs) from a pallet onto a hopper several times a year
Dragging run-out rails for race days (30kgs)
Pushing mowers and edgers for a whole shift
Daily step count between 10000 and 25000 steps a day
Planting flowers (bending over to replant annuals on ground level for four carnivals a year and over 10,000 plants.
Dragging heavy, water-filled hoses to water hot spots in summer
Bending underneath multiple rails a day that are under 1 m high, often with blowers, hedgers and other machinery in hand or strapped to your back.
11.    Following my initial high tibial osteotomy surgery on my right knee in 2007, my knees performed well, only playing up with pain and irritation occasionally depending on the task at work. As the years progressed, it began getting painful after a tiring day mainly after completing one of the tasks above, typically towards the end of the workday.
12.    The pain progressed and came on an hour earlier until it was a daily occurrence. In the beginning I would go home and ice it, take Panadol, Nurofen and it would be OK, Over time the onset of pain would occur earlier in the day the need to take medication would get more frequent, until the aching continued at night and would keep me awake and I was not getting continuous sleep.
13.    In the end it was also affecting me on weekends as the pain would stop me from going to events where I knew I would be standing, I couldn't walk my dogs, or do my gardens, mow the lawns, climb ladders, or do any maintenance on my house.
14.    Weekends were spent recovering so I could go back to work and do it all again the following week, eventually it started to affect my mental health and my relationships. The only option if was to have any sort of pain free life was to go see a surgeon, and the only recommendation was to have another operation being the knee replacement.”

Treating medical evidence

The following medical history is not in dispute and is evidenced by the various treating medical evidence which includes reports of numerous treating practitioners and investigations.
On 13 July 1993, Dr Caig Waller, orthopaedic surgeon, reported that the applicant sustained a hyperextension injury to his left knee at work on 6 July 1993 when he hyperextended his knee to avoid a tail gate and was then struck just below the knee and the applicant developed persisting knee pain. Dr Waller diagnosed possible tear of the left knee lateral meniscus. Dr Waller also stated that the applicant also reported an unstable right knee. On examination, Dr Waller noted gross signs of anterior cruciate ligament deficiency and some tenderness along the medial meniscus which he considered may need to be addressed at a later stage.
On 9 August 1993, Dr Caig Waller, orthopaedic surgeon reported that the applicant underwent left knee arthroscopy, partial medial meniscectomy and chondroplasty. Dr Waller noted that the applicant had signs of fairly advanced wear of the medial surfaces of the left knee and his prognosis must therefore be guarded.
On 28 September 1993, Dr Caig Waller, orthopaedic surgeon reported that the applicant was virtually asymptomatic following arthroscopic surgery to his left knee and was back at work on full duties.
On 15 March 2004 and 20 June 2005, Dr John Schulze, general practitioner, referred the applicant for orthopaedic assessment and management. Dr Schulze stated that the applicant had “terrible” osteoarthritis in both knees, for his age. Dr Schulze recorded a history that the applicant had: left knee cruciate ligament reconstruction, left knee medial ligament repair and left knee partial meniscectomy in 1984; left knee arthroscopy removal of loose bodies in 1994 and 2000; and left knee osteoarthritis in 2000.
On 22 June 2005, right knee x-ray was reported to show gross diminution of the right knee joint space mainly in its medial aspect, spur formation at the medial and lateral condyle of the lower end of femur and upper end of tibia. Left knee x-ray was reported to show diminishing of joint space medially and laterally, spur formation and gross osteoarthritic type changes as well as in the patella medial aspect of the spur formation at the lateral aspect of the left knee.
On 25 July 2005, Central Coast Orthopaedics reported that the applicant underwent left knee arthroplasty, chondroplasty medial femoral lateral meniscectomy.
By letter dated 19 October 2005, Dr John Schulze, general practitioner, referred the applicant to Dr Pincewski, sports medicine specialist. Dr Schulze stated that the applicant had a considerable history of left knee sporting injury with ongoing degenerative problems. Dr Schulze stated that, more recently, the applicant had experienced considerable stiffness, swelling, and pain, getting progressively worse. Dr Schulze stated that, furthermore, in the effort to spare his left knee, the applicant had injured the right side, with suspected lateral meniscal injury now, although rapidly settling.
On 4 November 2005, Dr Leo Pinczewski, sports medicine specialist, reported that both the applicant’s knees had progressive genu varum deformity and medial compartment chondo-osteoarthritis, with the left knee slightly worse. Dr Pinczewski recommended a left sided high tibial osteotomy.
On 18 November 2005, an MRI Left Knee was reported to show marked medial compartment osteoarthritis, posterior cruciate ligament attenuated but intact, generally intact lateral meniscus, marked medial compartment osteoarthritis and relatively good cartilage preservation in the lateral and patella-femoral compartments.
On 18 November 2005, Dr Leo Pinczewski, sports medicine specialist, reported that the recent left knee MRI scan confirmed Grade IV bone on bone articulation on the medial tibiofemoral compartment, an intact healthy lateral meniscus, full thickness articular cartilage in the lateral tibiofemoral joint with just some very early signal change evidence, a large osteophyte on the lateral tibiofemoral joint and early chondromalacia of the patellofemoral joint. Dr Pinczewski recommended left sided high tibial osteotomy.
On 19 January 2006, imaging showed marked narrowing of the medial compartment joint space of both knees, with medial joint line osteophyte formation.
On 1 February 2006, the applicant underwent left sided high tibial osteotomy, performed by Dr Leo Pinczewski, sports medicine specialist.
On 21 April 2006, 19 May 2006 and 1 December 2006 Dr Leo Pinczewski, sports medicine specialist, reported on the applicant’s progress following the left sided high tibial osteotomy.
On 1 August 2006, A/Prof Justin Roe, sports medicine specialist, reported on the applicant’s progress following the left sided high tibial osteotomy. A/Prof Roe stated that he felt that the applicant had sustained a recent right knee injury when stepping from a bus which had some underlying medial compartment osteoarthritis. A/Prof Roe stated that, due to medial compartment osteoarthritis, he feel that at some point in time, the applicant would also come to an osteotomy of the right knee.
On 26 September 2006, A/Prof Justin Roe, sports medicine specialist, reported that the applicant’s left knee was doing well some eight months following the high tibial ostectomy., with intermittent symptoms but that the applicant continued to be on restricted duties and restricted hours at work. A/Prof Roe encouraged the applicant to return to full work duties.
On 1 December 2006, Dr Leo Pinczewski, reported that the applicant was progressing well following the osteomomy surgery, however he injured his right knee in a work accident in July.
On 15 January 2007, imaging showed 5 degrees varus angulation of the right leg and 10 degrees valgus alignment on the left leg.

On 1 February 2007, the applicant underwent right sided closing wedge high tibial osteotomy, performed by A/Prof Justin Roe, orthopaedic surgeon.
On 24 April 2007, imaging of the right knee showed narrowing of the right knee joint in its medial aspect with spur formation seen at the lower end of the femur and upper end of the tibia in the medial aspect, fixation of the high tibial osteotomy and secondary osteoarthritic changes.
On 24 April 2007, A/Prof Justin Roe, orthopaedic surgeon, reported that the applicant was progressing well following the right closing wedge high tibial osteotomy, with an excellent range of motion, no gross effusion and stable knee.
On 2 August 2023, an X-ray of the applicant’s bilateral knees was reported to show:
“Right:
Previous osteotomy of the proximal tibia with internal fixation is noted, unchanged in alignment and no hardware complication is seen.
There are tricompartment osteoarthritic changes, marked in degree involving the medial compartment with complete joint space loss, subchondral sclerosis and marginal bone spurring, appearing mildly increased in degree. There is chondrocalcinosis. There is a small to moderate joint effusion. There are possible posterior calcified intra-articular bodies.
Left:
Previous osteotomy and internal fixation of the distal femur and proximal tibia are noted. Alignment is unchanged and no hardware complication is seen.
There are moderate-marked tricompartmental osteoarthritic changes especially involving the medial compartment, overall mildly increased in degree. There is a moderate joint effusion and posterior intra-articular bodies.”
On 10 August 2023, Dr Ryan Metcalfe, general practitioner, referred the applicant to Dr Edward Bateman, orthopaedic surgeon, for assessment and management regarding bilateral knee osteoarthritis, noting that the applicant’s right knee was currently worse than the left. Dr Metcalfe stated that the applicant “is a Greenkeeper and is starting to have impaired quality of life with restricted walking etc”. Dr Metcalfe recorded a history which included: left knee medial ligament repair in 1984; left knee partial meniscectomy in 1984; left knee cruciate ligament reconstruction in 1984; left knee arthroscopy and removal of loose bodies in 1994; left knee arthroscopy and removal of loose body in 2000; and left knee osteoarthritis in 2000.
On 11 September 2023, Dr Edward Bateman, orthopaedic surgeon, referred the applicant to Dr Jason Hockings, orthopaedic fellow, in relation to bilateral knees.
On 11 September 2023, Dr Jason Hockings, orthopaedic fellow, Dr Hockings stated that the applicant presented with pain in both knees which was quite significantly affecting him, limiting his walking, work and daily activities. Based on his examination of the applicant and consideration of the applicant’s medical history and imaging, Dr Hockings reported a diagnosis of bilateral knee end stage osteo and rheumatoid arthritis. Dr Hockings recommended bilateral total knee replacement.
On 23 October 2023, the applicant underwent robotic assisted bilateral total knee replacements, under the hands of Dr Edward Bateman, orthopaedic surgeon, at the applicant’s expense. Dr Bateman certified that the applicant would be unfit for duties from 23 October 2023 to 20 December 2023 (inclusive) and from 1 January 2024 to 26 January 2024 (inclusive).

Independent medical evidence

Dr David Bornstein, orthopaedic surgeon, qualified by the respondent

On 30 October 2006, Dr Bornstein reported that the applicant said that he was currently working six hours per day and that his work involved looking after, cutting and maintaining the grass at Randwick Racecourse. Dr Bornstein diagnosed severe osteoarthritis of the right knee, which he considered would have become symptomatic at about that point in time in any event. Dr Bornstein noted that the applicant related a history of stepping off a bus on the way to work. Dr Bornstein stated that he thought that the applicant “simply stepped down heavily and the knee suddenly became painful”. Dr Bornstein considered that the applicant had suffered an exacerbation of a previous or underlying condition, which had been rendered symptomatic. Dr Bornstein expressed the opinion that the applicant’s employment was not a substantial contributing factor to the applicant’s condition. Dr Bornstein expressed the opinion that the applicant was genuine in his complaint, had a real medical disease and had a real problem with his knee joint but that it was not substantially work-related. Dr Bornstein expressed the opinion that alighting from the bus was not a substantial contributing factor to the applicant’s need for surgery, and was simply incidental. Dr Bornstein stated that he had little doubt that the applicant would have required the right-sided high tibial osteotomy at around the same time but for the bus incident.

Dr Endrey-Walder, general and trauma surgeon, qualified by the applicant

On 27 June 2007, Dr Endrey-Walder reported on the applicant’s various injuries, including knee injuries. Dr Endrey-Walder noted that the applicant’s work duties included looking after lawns, cutting grass, maintaining lawns, watering, fertilising etc. Dr Endrey-Walder recorded a detailed medical history including right knee injury on 11 July 2006 on the way to work and right-sided high tibial osteotomy procedure on 1 February 2007. Dr Endrey-Walder did not assess the left knee condition. Dr Endrey-Walder stated:
“It is one's impression that Mr McNulty had significant chronic pathology at the medial compartment of the right knee by the time the acute injury occurred, but I have no reason to doubt his testimony that the underlying and preexisting knee condition had not impacted on his functional capacity in, what one would have to consider as, a fairly labour intensive physical work situation over the past 18 years.
One would have to consider the acute injury to the right knee as having precipitated the need for surgical intervention. Mr McNulty tells me. that he resumed full duty work about 13 weeks after the knee operation, and I have no reason to doubt his testimony, although I have grave doubts regarding his capacity to perform excessive walking on uneven ground, repeatedly climb in and out of tractors and trucks, to lift weights regularly beyond 15 kg at the most I do believe that his working life in a physical job situation would be significantly prolonged if some sensible restrictions were placed on his physical responsibilities, with particular reference to the back and right knee condition.
...
I would consider it all but inevitable that Mr McNulty will one day need a total knee replacement at the right knee... ".
On 27 June 2007, Dr Endrey-Walder also assessed 3% WPI in respect of right knee mild laxity of the anterior cruciate ligament and 8% WPI in respect of 2mm cartilage interval in the medial compartment.
On 27 June 2007, Dr Endrey-Walder also responded to an opinion of Dr Bornstein in relation to the applicant’s right knee. Dr Endrey-Walder accepted that the applicant is likely to become significantly debilitated at the right knee at some time in the future due to pre-existing condition, with or without the work injury on 11 July 2006. However, Dr Endrey-Walder maintained that right knee injury on 11 July 2006 on the applicant’s way to work would have precipitated symptoms which led to the high tibial osteotomy operation, performed probably some years prior to such an operation having become necessary in any case.
On 12 July 2007, Dr Endrey-Walder confirmed that the applicant has an 11% WPI on account of injuries suffered to his right knee.
I note that a letter of instruction from the applicant’s solicitors to Dr Endrey-Walder dated 7 February 2024 stated that the nature and conditions of the applicant’s work required him to be on his feet for most of the course of his workday and to do a lot of bending, squatting and lifting of heavy fertiliser bags.
On 14 February 2024, Dr Endrey-Walder, general and trauma surgeon, reported on his assessment of impairment residual from injuries sustained during the applicant’s 34 years employment with the respondent. Dr Endrey-Walder recorded a history that the applicant’s work for the respondent since 1989 as a gardener and subsequently as a racetrack curator, involved driving tractors, using whippersnippers, a lot of shovelling, walking on uneven ground, squatting and kneeling. Dr Endrey-Walder recorded a history which included that: at the age of 20, the applicant suffered an anterior cruciate ligament (ACL) tear at his left knee for which he had surgical reconstruction of the knee; on 1 February 2006, the applicant underwent left knee high tibial ostectomy operation (HTO) to address significant medial compartment osteoarthritic changes; on 11 July 2006, the applicant had a fall on his way to work when his right knee gave way; on 1 August 2006, A/Prof Roe, orthopaedic surgeon, acknowledged the direct impact injury and falling heavily, varus alignment at the knee and a degree of underlying primarily medial compartment osteoarthritis; on 1 February 2007, the applicant underwent a right high tibial ostectomy procedure; the applicant was subsequently able to return to his pre-injury duties; in 1994 and 2000, the applicant had arthrocopies on the knee for removal of loose bodies; and, in following such operations, the applicant “remained fully functional in his physically demanding job”. Dr Endrey-Walder considered the X-ray of the right knee on 20 August 2023. On examination, Dr Endrey-Walder noted that the applicant walked with a unilateral limp, seemed stiff at the knee joints and had restricted movement at both knee joints.
Dr Endrey-Walder expressed the opinion that:
“As a consequence of the nature and conditions of his many years of work for the Australian Jockey Club, Mr. McNulty suffered aggravations resulting in acceleration of degenerative changes at his previously damaged left knee.
He eventually had ortbopaedic opinion, the main structural derangement at the left knee relating to significant medial compartment arthritic changes, resulting in marked varus alignment.
In early 2006 he had a successful left HTO operation.
On 11 July 2006 he suffered injury to his right knee on his way to work, the knee gave· out and he fell heavily onto it, as described by Dr. Roe. There was evidence of significant medial compartment osteoarthritis, which had not in any way been symptomatic prior to the subject accident on the bus.
I do believe that he suffered significant aggravation of the pre-existing medial compartment arthritic changes, these clearly consequential upon the nature and conditions of his work in his job of some 17 years by the time of the right knee injury.
He had a successful HTO operation on the right side and it was your client's testimony to me last time, and certainly today, that he has been able to cope with fulltime and full duty work as a Curator of the Racetrack at Randwick Racecourse up until the middle of last year, when the associated bilateral knee pain was so savage that he wanted to have surgery as soon as possible, was unable to look to a protracted workers compensation process for relief.
He is back in his pre-operative job, and one must admire his excellent attitude and work ethic to have returned to such a strenuous daily work activity just over three months after bilateral TKR's.
The following are my thoughts regarding some of your particular questions.
I believe the diagnosis as it relates to your client's left knee is significant aggravation and acceleration· of osteoarthritic changes in the knee, this as a consequence of the previous ACL injury (prior to his job), aggravation and acceleration of the consequential arthritic changes.
At the right knee the diagnosis is significant aggravation of some previously completely silent and asymptomatic medial compartment arthritic changes, this as a consequence of falling heavily onto his right knee (his weight over 100kgs!)...”
On 14 February 2024, Dr Endrey-Walder assessed 29% total WPI, calculated on the basis of 15% WPI of the right knee, 15% WPI of the left knee and 2% WPI for left knee scarring/ Table for the Evaluation of Minor Skin Impairment (TEMSKI).
On 22 February 2024, Dr Endrey-Walder confirmed his opinion that the applicant’s daily work over the years had significantly aggravated and accelerated his left knee arthritic condition. Dr Endrey-Walder stated that the right knee diagnosis is a significant aggravation of some previously completely silent and asymptomatic medial compartment arthritic changes, a consequence of falling on his right knee. Dr Endrey-Walder recorded a history that, following a successful HTO operation on his right knee on 1 February 2007, the applicant was able to return to his normal and usual job as curator of the race track, satisfying the job requirements until about the middle of 2023, when the aggravation and exacerbation of his injured knee joints caused him so much pain that he could no longer cope. Dr Endrey-Walder stated that, in his opinion, the applicant’s incapacity for work between mid-2023 and his recovery from bilateral knee replacement operations performed on 23 October 2023, is directly related to work injuries. Dr Endrey-Walder supported the bilateral total knee replacement procedure performed by Dr Bateman on the basis that there was no alternative.

Dr David Millions, orthopaedic surgeon, qualified by the respondent

In a report dated 9 May 2024, Dr Millions recorded a history that the applicant’s work for the respondent entailed caring for the racing tracks and driving trucks, tractors and mowers. Dr Millions recorded that the applicant’s work also involved laying out artificial furth across various areas of the racetrack and the work was moderately heavy. Dr Millions recorded that the applicant’s normal duties involved mainly driving rather than much in the way of hands-on work.
Dr Millions recorded a detailed medical history of the applicant’s left knee and right knee separately. In relation to the left knee, Dr Millions recorded that: in 1984, the applicant had a football injury and underwent a cruciate ligament reconstruction and a medial collateral ligament repair under the hands of Dr Casey, and subsequently that year a medial meniscectomy; on 6 July 1993, the applicant injured his left knee at work when he twisted it as he was trying to avoid being struck by a tailgate; on 13 July 1993, Dr Waller, orthopaedic surgeon noted that the applicant appears to have sustained a torn lateral meniscus; on 9 August 1993, Dr Waller recorded grade 3 areas of articular cartilage wear in the femoral intercondylar groove and on the medial femoral condyle with grade 2 and 3 areas on the medial tibial condyle, indicative of osteoarthritic change, even at that stage; there was evidence of a previous partial medial meniscectomy with a flap tear in the anterior horn and a partial medial meniscectomy was done, resecting the flat tears, and a chondroplasty was performed on the medial femoral condyle; the applicant was off work for a few weeks and then resumed his normal duties, the applicant put up with his ongoing knee issues and continued working; subsequently the applicant underwent a couple of other arthroscopies to remove loose bodies; although there was discussion about having a high tibial wedge osteotomy to transfer the weight bearing line from the more worn to the lesser worn part of the knee that seems to have been put on hold and the applicant tried to continue working; on 25 July 2005, the applicant underwent an arthroscopy of the left knee which found grade 1-2 changes on the patella, grade 4 changes on the trochlea, widespread grade 4 changes on the medial femoral condyle and a medial meniscectomy, unstable flaps on the meniscus, an absent anterior cruciate ligament and the lateral femoral condyle had an area of grade 1 change, a chondroplasty was performed and the lateral meniscus was debrided; the applicant’s left knee symptoms continued; on 4 November 2005, Dr Pinczewski noted that there was bilateral anterior cruciate ligament deficiency with progressive genu varum deformity and medial compartment chondro-osteoarthritis with the left knee being slightly worse than the right.
In relation to the right knee, Dr Millions recorded that: at the age of 12 or 13, the applicant had a right knee football injury; although the applicant claimed to have made a full recovery, Dr Pinczewski recorded an anterior cruciate deficient right knee which had probably been so for more than 20 years and bilateral degenerate change affecting the medial compartments; on 1 February 2006, the applicant underwent a left sided high tibial osteotomy to transfer the weight bearing from the more worn to the lesser worn part of the knee; the applicant was off work from some four or five months while undergoing that procedure then performing mostly his normal duties in the face of some ongoing issues; on 11 July 2006, the applicant injured his right knee when it gave way and he fell getting off a bus on the way to work; the applicant went on selected duties with reduced hours, although the applicant was not clear on that; on 1 February 2007, the applicant underwent a high tibial osteotomy; he was off work for perhaps some three months before returning to his normal duties; initially, the applicant had a reasonable result from both high tibial osteotomies; the applicant continued at work doing mainly driving activities and avoiding any heavier tasks.
In relation to the bilateral knees, Dr Millions recorded that: two or three years ago, the applicant started to get ongoing problems with his knees; by 11 September 2023, when reviewed by Dr Hockings, the applicant’s bilateral knees had deteriorated and the applicant was experiencing significant bilateral knee pain, loss of mobility and agility; on 23 October 2023, the applicant underwent bilateral total knee replacements performed with patellar resurfacing at the hands of Dr Bateman; the applicant worked on somewhat selected duties up until the time he went into hospital, and following the surgery the applicant returned to work on light duties around the six week mark and has subsequently been back working full-time.
On examination, Dr Millions noted that the applicant walked with a slightly measured gait, the applicant’s knees seem stable, the patellae seem normal with no effusion into either knee joint, there is some restricted range of motion.
Dr Millions referred various medical reports and imaging which he reviewed.
Dr Millions expressed the opinion that:
“Mr McNulty clearly has a long and chequered history of issues with both knees.
There was clearly a significant injury to the left knee in 1984 when he came to an anterior cruciate ligament reconstruction and a lateral collateral ligament repair. That would have set the stage for the development or acceleration of degenerate change in the knee. That appears to have been the case as the years have progressed. He had a couple of arthroscopies to remove loose bodies.
There was a further significant incident on 6th July 1993 when he twisted the knee trying to get out of the way of a tailgate that had slipped from his grasp. He was found to have some issues in the knee which Dr Waller addressed. Dr Waller did notice the degenerate changes within the knee.
The degenerate change would have continued as he went about his normal activities of daily living including his work. He had a couple of arthroscopies along the way including one by Dr Limbers in July 2005.
He came to a high tibial osteotomy on 1st February 2006, that to transfer the weight bearing line from the more worn to a less worn part of the knee and that seems to have given him several years of relief of symptoms, but the degenerative process continued inexorably on to the point where he has come to a total knee replacement on 23rd October 2023, with, in the short term, seven months later, a good outcome.
There is a history of a football injury to the right knee when he was 12 or 13 which was treated conservatively.
He was getting issues with the right knee along the way leading into the incident in July 2006.
It appears that there were degenerate changes occurring in the knee, almost certainly constitutionally based, but being aggravated by the normal activities of daily living and his work.
Mr McNulty came to a high tibial osteotomy on 1st February 2007 and again had a reasonably good result from that, buying time before the inevitable knee replacement, which took place on 23rd October 2023, again with a good outcome.
He has been left with some minor symptoms in the knees but generally his mobility is a lot better than it was.
It is to his credit that he was back at work within some two to three months of his operation and he is now working on his normal duties, which are not that demanding on the knees.
There has been some loss of mobility and agility and difficulty kneeling, squatting, walking far, negotiating stairs and slopes, and all of that is quite consistent, but generally the results of his knee replacements have been good.
In summary, there had been many reports of issues with both left and right knees over the years, which really serve to indicate that his problems can be considered to be a disease of gradual onset, not occasioned by his work but perhaps aggravated by the incidents that have been described as having occurred along the way. The football injury to the left knee in 1984 certainly set in place the potential for the development of accelerated osteoarthritic change, as appears to have been the case with him. His work does not appear to be the main cause of the arthritic change.
The fall from the bus on 11th July 2006 appears to have been an aggravation of some degenerate changes in the right knee, the knee having been symptomatic prior to that time.
I doubt whether that incident was a significant aggravation of the degenerate change and the ongoing issues with the right knee would just be a reflection of the progression of degenerate change aggravated by the normal activities of daily living and perhaps to some degree the nature and conditions of his work, although I doubt whether his work was the main cause of the arthritic change.”

Specifically in relation to the right knee, Dr Millions stated:
“Mr McNulty appears to have constitutionally based degenerate changes in the right knee. There appears to have been an aggravation of those changes in the fall as he was alighting from a bus on 11th July 2006. I suspect the knee had been noted to be problematic prior to that time by his treating Orthopaedic Surgeon. It seems that that incident caused some aggravation of some pre-existing degenerate change but I would not have thought it significant in the overall picture which is that of a gradual deterioration in the condition of the knee as a result of the natural progression of the osteoarthritic change.
The normal activities of daily living and his work would have played some role in the perpetuation of symptoms on a day to day basis. The osteotomy that he had performed and then the total knee replacement that was performed several years after that were performed because of the underlying constitutionally based degenerate changes rather more than relating to anything that has emanated from his work.”
Specifically in relation to the left knee, Dr Millions stated:
“Mr McNulty had some reconstructive surgery performed in 1984 which would have certainly set in place the stage for the development of accelerated degenerate change in the knee, as appears to have been the case with him over the years.
There was an aggravation of those degenerate changes in the incident at work on 6^th July 1993. Investigations and arthroscopy at the time revealed degenerate change within the knee which was clearly of longstanding and probably reflected the degenerate change.
That incident on 6th July 1993 does not of itself appear to have been the cause of the need for him to come to a high tibial osteotomy and then a total knee replacement, surgery being performed because of the deteriorating constitutionally based degenerate changes in the knees.”
Dr Millions expressed the opinion that the right total knee replacement was reasonably necessary because of underlying constitutionally based attritional change but was not work-related. Dr Millions expressed the opinion that, whilst the normal activities of daily living including the applicant’s work may have caused some day to day knee symptoms and discomfort on a day to day basis, he did not believe that was of any significance in the overall picture. Dr Millions stated that he believed the applicant would have come to the bilateral knee replacements regardless of temporary aggravations of some underlying degenerate change caused by the incident on 6 July 1993 in relation to the left knee and the incident on 11 July 2006 in relation to the right knee and regardless of the aggravating effect of the activities of daily living including the nature and conditions of the applicant’s work.
On the basis that he considered that the applicant’s knee conditions and multiple surgical procedures were due to underlying constitutionally based degenerate changes and not significantly work related, Dr Millions assessed total 0% WPI.

Submissions

Counsel’s submissions were recorded and have been considered in full.

Applicant’s submissions

Mr Gaitanis’ submissions on behalf of the applicant may be summarised as follows:
(a)    Mr Gaitanis stated that the Commission is required to determine whether the nature and conditions of the applicant’s employment is the main contributing factor to the aggravation of the applicant’s underlying bilateral knee issues;
(b)    Mr Gaitanis referred to various evidence and submitted that the Commission should accept the applicant’s credibility and evidence in relation to the nature and condition of his work. Mr Gaitanis submitted that the Commission should accept that the applicant’s duties included physically demanding tasks such as spreading turf, cutting turf, hedging, pushing a mower and moving the rail fences around the golf course;
(c)    Mr Gaitanis referred to various evidence and submitted that the Commission should accept that the applicant’s tasks, performed over many years despite his various injuries, would have placed strain on the applicant’s knees such that they were the main contributing factor to the aggravation of the applicant’s underlying degenerative bilateral knee condition, and
(d) Mr Gaitanis submitted that the Commission should not accept Dr Million’s opinion. Mr Gaitanis submitted that Dr Millions did not address the test in s 4(b)(ii) of the 1987 Act and did not properly consider the high degree of contribution of the physically onerous tasks that the applicant was required to perform to aggravation to the applicant’s pre-existing degenerative condition.

Respondent’s submissions

Mr McManamey’s submissions on behalf of the applicant may be summarised as follows:
(a)    Mr McManamey stated that it is common ground that the applicant suffers progressive degenerative condition of his bilateral knees and also sustained various knee injuries;
(b)    Mr McManamey stated that the issue is whether the nature and conditions of the applicant’s employment is the main contributing factor to the aggravation of the applicant’s underlying degenerative condition of his bilateral knees;
(c)    Mr McManamey referred to various evidence and submitted that the Commission should accept that the applicant’s degenerative bilateral knee condition progressed in its own right, and that the nature and conditions of the applicant’s employment was not the main contributing factor to aggravation or progression of that degenerative condition. Mr McManamey relied on the decision of Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor [2008] NSWCA 151, at [38] to [50];
(d)    Mr McManamey submitted that the evidence in this case, and particularly the evidence of Dr Endrey-Walder, does not address whether the applicant’s work is the main contributing factor to aggravation etc of the progressive degenerative condition of the applicant’s right and left knees, and particularly when balanced against the natural progression of the progressive degenerative condition of the knees;
(e)    Mr McManamey submitted that the evidence in this case falls short of explaining that the need for the bilateral knee replacement surgery is a result of the nature and conditions of the applicant’s employment with the respondent.

Applicant’s submissions in reply

Mr Gaitanis’ submissions in reply on behalf of the applicant may be summarised as follows:
(a) Mr Gaitanis referred to various medical evidence in support of his submission that the nature and conditions of the applicant’s employment was the main contributing factor to the aggravation and exacerbation of the degenerative condition of the applicant’s knees, and
(b) Mr Gaitanis submitted that there is no evidence of any other main contributing factor to the applicant’s bilateral knee condition apart from the natural progression of the underlying degenerative condition.

FINDINGS AND REASONS

Did the applicant sustain injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act?

The law

The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
As noted by Deputy President Wood in State of New South Wales (Sydney Local Health District) v Edwards,[1] referring to Rail Services Australia v Dimovski (Dimovski):[2]
“... Dimovski is long standing authority for the principle that a personal injury pursuant to s 4(a) of the 1987 Act is distinct from a disease injury pursuant to s 4(b) of the 1987 Act. Dimovski is relevant to this case on that basis, but it does not assist in regard to a determination of whether the employment was the main contributing factor to the disease injury. Dimovski was determined well prior to the amendment to s 4(b) requiring the employment to be the main contributing factor to the injury, so there was no discussion as to the effect that a separate personal injury might have on a consideration of the main contributing factor to a disease injury...”
[1] [2024] NSWPICPD 83 at [138]
[2] [2004] NSWC 267.
In AV v AW,[3] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[3] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[4] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[5]
[4] [1964] HCA 34; 110 CLR 626.
[5] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[6]
[6] Semlitch, at [635].
In Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor,[7] the New South Wales Court of Appeal set out a useful analysis of the application of s 4(b)(ii) of the 1987 Act (albeit prior to more recent amendments to the 1987 Act) generally and also specifically in the context of the natural progression of an underlying degenerative condition.
[7] [2008] NSWCA 151 at [38] to [54].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8] (Kooragang).
[8] (1994) 35 NSWLR 452; 10 NSWCCR 796.
Although the High Court in Comcare v Martin[9] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[9] [2016] HCA 43, at [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[10] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.

84.The Court of Appeal in Nguyen v Cosmopolitan Homes[11] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[10] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
[11] [2008] NSWC 246.

Pre-existing degenerative disease condition of the applicant’s bilateral knees

It is not in dispute that the applicant sustained a frank injury to his right knee on 11 July 2006. It is also apparent from the uncontested treating medical evidence that I have detailed above that the applicant has a significant history of injury to both knees.
It also appears to be common ground on the basis of the treating medical evidence and the evidence of the independent medical experts, Dr Endrey-Walder and Dr Million, and I accept, that the applicant has a longstanding history of degenerative condition of the bilateral knees including an osteoarthritic condition.
The issue that I am required to determine is whether the nature and conditions of the applicant’s employment between July 2006 and 23 October 2023 was the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of the degenerative condition of the applicant’s bilateral knees.

Credibility of the applicant’s evidence

The applicant’s credibility has not been challenged and no application was made for leave to cross-examine.
There is no witness evidence which directly addresses and challenges the applicant’s evidence in relation to his work duties and generally.
In 2006, Dr Bornstein expressed the opinion that the applicant was genuine in his complaint (although Dr Bornstein did not consider it to be a work-related condition). In 2007, Dr Endrey-Walder stated that he had no reason to doubt the applicant’s testimony. In 2024, Dr Endrey-Walder expressed admiration for the applicant’s excellent attitude and work ethic.
I note that there are some differences in the nature of the applicant’s work duties recorded by the independent medical experts, Dr Endrey-Walder and Dr Millions, which I will deal with in more detail later. Dr Millions recorded that the applicant’s duties involved caring for the racing tracks and driving trucks, tractors and mowers and laying out artificial furth across various areas of the racetrack and the work was moderately heavy. Dr Millions recorded that the applicant’s normal duties involved mainly driving rather than much in the way of hands-on work. However, Dr Endrey-Walder recorded the applicant’s work duties as being labour intensive.
The reason for those differences is not entirely clear, although perhaps it can be explained by the differences in instructions to the respective medical experts: I note that the letter of instruction to Dr Endrey-Walder dated 7 February 2024 stated that the nature and conditions of the applicant’s work required him to be on his feet for most of the course of his workday and to do a lot of bending, squatting and lifting of heavy fertiliser bags.
The applicant’s work duties recorded by Dr Endrey-Walder are substantially consistent with the letter of instructions and the work duties described in the applicant’s evidence. In the circumstances, I do not consider that the differences in the nature of the applicant’s duties recorded by the medical experts provides a significant basis not to accept the credibility of the applicant’s evidence.
In any event, having regard to the evidence as a whole and for the reasons set out above, I do not consider that there is any compelling reason for me to not accept the credibility of the applicant’s evidence.
On that basis, I feel a sense of persuasion and I accept the applicant’s evidence as a truthful and honest account of the relevant factual events, particularly in relation to the nature of the applicant’s work duties and his subjective experience of his physical condition.

The applicant’s work duties

For the reasons set out above, I accept the applicant’s detailed evidence as to the duties that he performed during the course of his employment with the respondent.
In particular, I accept that during the course of the applicant’s employment with the respondent, and particularly during the period between July 2006 and 23 October 2023, the applicant’s work was labour intensive and the applicant was engaged in significant repetitious physical labour which included walking between 10,000 and 25,000 steps each day, digging, bending, lifting and dragging various objects and weights (including a 25kg hydraulic gun and 30kg run-out rails and heavy water-filled hoses, blowers, hedgers and other machinery), awkwardly moving, rotating hips and knees, getting in and out of trucks, tractors and up and down ladders and pushing mowers and edgers for a whole shift.
The treating medical evidence and the evidence of the independent medical experts is largely consistent to the effect that, subject to certain time off work or restricted duties to recover from various injuries and medical treatments, the applicant reasonably promptly returned to full-time work duties. As I noted, in 2024, Dr Endrey-Walder expressed admiration for the applicant’s excellent attitude and work ethic.
As I noted above, there are some differences in the nature of the applicant’s work duties recorded by the independent medical experts, Dr Endrey-Walder and Dr Millions, which I will deal with in more detail later. Dr Millions recorded that the applicant’s work was moderately heavy and involved mainly driving rather than much in the way of hands-on work. However, Dr Endrey-Walder recorded the applicant’s work duties as being labour intensive. On the basis of my findings as to the applicant’s duties above, to the extent that it is necessary to reconcile the history of the applicant’s work duties described by the respective independent medical experts, I prefer and accept the history recorded by Dr Endrey-Walder, because I consider to be more consistent with the applicant’s evidence in relation to his work duties, which I accept.

Strain on the applicant’s bilateral knees

The applicant’s evidence is that those work duties placed strain on his knees.
For the reasons set out above, I accept the applicant’s evidence as to his subjective experience in that regard.
Dr Millions recorded that the applicant’s normal duties involved mainly driving rather than much in the way of hands-on work. Dr Millions stated that the applicant’s normal duties “are not that demanding on the knees”.
Dr Endrey-Walder recorded a history that the applicant’s work for the respondent since 1989 was of a physical nature and involved driving tractors, using whippersnippers, a lot of shovelling, walking on uneven ground, repeatedly climb in and out of tractors and trucks, squatting and kneeling and regularly lifting weights in excess of 15kg. Dr Endrey-Walder expressed the opinion that the nature and conditions of the applicant’s employment aggravated and accelerated the underlying degenerative osteoarthritic condition. Dr Endrey-Walder did not specifically explain the process in that regard, but I consider that it is implicit from reading Dr Endrey-Walder’s evidence as a whole that he accepted that the applicant’s physical duties placed strain on the applicant’s bilateral knees.
As I noted above, to the extent that it is necessary to reconcile the history of the applicant’s work duties described by the respective independent medical experts, I prefer and accept the history recorded by Dr Endrey-Walder, which I consider to be more consistent with the applicant’s evidence in relation to his work duties which I accept.
In any event, as a matter of common sense, I consider that it is conceivable, indeed likely, and I accept, that the strenuous physical labour of the type described by the applicant involved significant repeated physical movements of the applicant’s bilateral knees, including twisting and weight bearing motions, that placed strain or an abnormal load on the applicant’s bilateral knees.

Aggravation or exacerbation of the degenerative condition of the bilateral knees

The applicant’s evidence is that, initially following his initial high tibial osteotomy surgery on his knee in 2007, his knees performed well, and he only experienced occasional pain and irritation of his knees depending on the work task. The applicant’s evidence is that, as the years subsequently progressed, he experienced knee pain after completing physical tasks, typically towards the end of the workday. The applicant’s evidence is that the knee pain then progressed to the extent that the pain was a daily occurrence and he experienced it sooner each day, and then also on weekends. The applicant stated that the knee pain progressed to the point that it impaired him from engaging in various activities of daily living and affected his sleep, mental health and relationships and he decided to proceed with recommended bilateral knee replacement surgery.
For the reasons that I have set out above, I accept the applicant’s evidence of his subjective experience in that regard.
The applicant’s evidence appears to be consistent with the treating medical evidence. There is no evidence in the treating reports that the applicant reported any significant knee problems in the period from July 2007 until August 2023. There is contemporaneous medical evidence that in August 2023, the applicant reported pain in his bilateral knees which was quite significantly affecting him, limiting his walking, work and daily activities. It was at that stage that the applicant underwent imaging and assessment of his bilateral knees, which led to the applicant undergoing bilateral knee replacement in October 2023.
I turn now to the independent medical evidence.
The independent medical experts appear to accept the pre-existing degenerative disease process of the applicant’s bilateral knees.
In 2006, Dr Bornstein diagnosed severe osteoarthritis of the right knee. Dr Bornstein did not accept that the incident when the applicant stepped off the bus on the say to work was a substantial contributing factor to that condition, which he considered would have become symptomatic at about that point in time in any event.
I find Dr Endrey-Walder’s report dated 14 February 2024 somewhat ambiguous and unclear. His supplementary report dated 22 February 2024 provided more clarity.
Dr Endrey-Walder was of the opinion that pre-existing disease process of the applicant’s bilateral knees was aggravated and accelerated by the nature and conditions of the applicant’s employment during the period from July 2006 and 23 October 2023.
In relation to the applicant’s left knee, Dr Endrey-Walder diagnosed “significant aggravation and acceleration of osteoarthritic changes in the knee, this as a consequence of the previous ACL injury (prior to his job), aggravation and acceleration of the consequential arthritic changes” (report dated 14 February 2024) and confirmed that “the applicant’s daily work over the years had significantly aggravated and accelerated his left knee arthritic condition” (report dated 22 February 2024).
In relation to the applicant’s right knee, Dr Endrey-Walder diagnosed significant aggravation of some previously completely silent and asymptomatic medial compartment arthritic changes, a consequence of falling heavily onto his right knee on 11 July 2006 on his way to work (reports dated report dated 14 February 2024 and 22 February 2024).
In relation to the applicant’s bilateral knees, Dr Endrey-Walder recorded a history that following the operation on his right knee in 2007, the applicant returned to his usual duties until about the middle of 2023, “when the aggravation and exacerbation of his injured knee joints caused him so much pain that he could no longer cope”. It appears that Dr Endrey-Walder based his opinion on a work history of the applicant engaging in “strenuous physical activity” including “driving tractors, using whippersnippers, a lot of shovelling, walking on uneven ground, squatting and kneeling”.
Dr Endrey-Walder did not express an opinion, nor explain, whether the applicant’s work was the “main” contributing factor to aggravation and acceleration of the progressive degenerative condition of the applicant’s knees, particularly when balanced against the natural progression of the underlying osteoarthritic condition. However Dr Endrey-Walder did express the opinion that the aggravation as a result of the nature and conditions of the applicant’s employment was “significant”.
In relation to the applicant’s right knee, Dr Millions diagnosed constitutionally based degenerate changes in the right knee which involved a gradual deterioration of the knee as a result of the natural progression of the osteoarthritic change. Dr Millions accepted that the nature and conditions of the applicant’s work would have played some role in perpetuation of symptoms on a day to day basis and possibly some degree of aggravation of that constitutional degenerative condition, but he did not accept that it was the main cause of the arthritic change.
In relation to the applicant’s left knee, Dr Millions also diagnosed constitutionally based degenerate changes in the right knee which involved a gradual deterioration of the knee as a result of the natural progression of the osteoarthritic change. Dr Millions accepted that the nature and conditions of the applicant’s work would have played some role in perpetuation of symptoms on a day to day basis and possibly some degree of aggravation of that constitutional degenerative condition, but he did not accept that it was the main cause of the arthritic change.
Dr Millions expressed the opinion that the applicant would have come to the bilateral knee replacements as a result of the constitutionally based degenerative change irrespective of any work-related aggravation.
As I noted above, that there are some differences in the nature of the applicant’s work duties recorded by the independent medical experts, Dr Endrey-Walder and Dr Millions. Dr Millions recorded that the applicant’s duties involved caring for the racing tracks and driving trucks, tractors and mowers and laying out artificial furth across various areas of the racetrack and the work was moderately heavy. Dr Millions recorded that the applicant’s normal duties involved mainly driving rather than much in the way of hands-on work. However, Dr Endrey-Walder recorded the applicant’s work duties as being labour intensive.
For the reasons I have given above, I accept the applicant’s evidence as a truthful and honest account of the relevant factual events, particularly in relation to the nature of his work duties and his subjective experience of his physical condition. I note that the applicant described experiencing pain after undertaking certain work and at the end of the work day which I consider is consistent with a mechanism of injury caused by the nature and conditions of the applicant’s employment.
I consider that the history relied upon by Dr Endrey-Walder is more consistent with the applicant’s evidence as to the nature and conditions of his work. On that basis, I prefer and accept the history of injury relied upon by Dr Endrey-Walder.
In contrast, whilst Dr Millions accepted that the applicant undertook some strenuous work, it does not appear that he had before him and considered such detailed information about the physical aspects of the applicant’s employment.
In the circumstances, I consider that Dr Millions did not give due regard to the full history of the nature and conditions of the applicant’s employment. Further, I do not consider that Dr Million’s opinion provided a sound basis and significant and reasoned explanation for his opinion regarding aggravation or exacerbation of the degenerative disease process of the bilateral knees caused by the nature and conditions of the applicant’s employment.
Considering the evidence as a whole, I consider that the opinion of Dr Endrey-Walder does provide a sound, logical and likely explanation for the applicant’s condition. Dr Endrey-Walder’s explanation is consistent with my findings above in relation to factual matters which are consistent with the applicant reporting bilateral knee pain in August 2023 and a mechanism of injury being strain or an abnormal load placed on the applicant’s knees in the performance of his work duties.
I note that there is no evidence of any particular injurious incident affecting the applicant’s bilateral knees between July 2006 and 23 October 2023.
There is no evidence of any alternative mechanism of injury apart from the natural progression of the degenerative disease process. Dr Endrey-Walder diagnosed a “significant” aggravation of the underlying degenerative disease process in the applicant’s bilateral knees caused by the nature and conditions of his employment. I consider it is implicit in Dr Endrey-Walder’s evidence in that regard that such “significant” aggravation is an aggravation of the natural progression of the degenerative disease process of the applicant’s degenerative condition of his bilateral knees.
This is not a case where the evidence is clear cut. The medical evidence is somewhat problematic.
However, having carefully considered the evidence as a whole and for the reasons given above, I prefer and accept the opinion of Dr Endrey-Walder. Further, I do feel a sense of persuasion and I am satisfied on the balance of probabilities, that the applicant sustained injury to his bilateral knees in the nature of an aggravation of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.

Is the proposed medical or related treatment reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act?

Sub-section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”
The respondent conceded that the bilateral total knee replacements performed by Dr Bateman on 23 October 2023, were reasonably necessary. The only issue in dispute in relation to the claim pursuant to s 60(1) of the 1987 Act is whether that surgery was reasonably necessary as a result of an injury.
Dr Endrey-Walder expressed the opinion that the applicant’s incapacity for work between mid-2023 and his recovery from the bilateral knee operations on 23 October 2023 is directly related to the applicant’s work injuries. Dr Endrey-Walder stated that, considering the clinical picture and radiology, he believed there was no alternative but to offer the bilateral total knee replacement procedure.
Dr Millions expressed the opinion that the applicant would have come to bilateral total knee replacement surgery regardless of temporary aggravations of underlying degenerate change caused by work injuries and the nature and conditions of the applicant’s employment.

Having regard to my reasons and findings in relation to the injury above, I am satisfied that there is a clear causal connection between the injury and the need for the surgery, such that the injury being aggravation of the underlying degenerative disease process of the bilateral knees materially contributed to the need for the bilateral knee replacements performed by Dr Bateman on 23 October 2023. Accordingly, I find that the need for the surgery arises as a result of a work injury.

Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?

Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The respondent concedes that the applicant was and remained totally incapacitated for work as a result of the bilateral knee replacements performed by Dr Bateman on 23 October 2023, from 23 October 2023 to 29 January 2024.
Further, the parties are in agreement that PIAWE for the claimed period is $1,632.74 and that 95% of PIAWE is $1,551.10.
On the basis of my finding in relation to causation above, it is appropriate to make an award for weekly compensation pursuant to s 36(1) of the 1987 Act.
Accordingly, an award is made in favour of the applicant for payment of weekly compensation pursuant to s 36(1) of the 1987 Act in the sum of $1,551.10 per week from 23 October 2023 to 29 January 2024.

Is the applicant entitled to permanent impairment compensation, pursuant to s 66 of the 1987 Act?

Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Having regard to my findings above in relation to injury, it is appropriate that the matter is remitted to the President to be referred to a Medical Assessor for determination of WPI pursuant to s 66(1) of the 1987 Act.

SUMMARY

On that basis, I determine that:
(a) the applicant sustained injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation of a disease process, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act (the injury);
(b) the bilateral knee replacements performed by Dr Bateman on 23 October 2023, was reasonably necessary as a result of the injury, and
(c) the applicant was and remained totally incapacitated for work as a result of injury from 23 October 2023 to 29 January 2024.
Accordingly, the Commission orders:
(a)    the matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:           23 October 2023.
Body parts:               left lower extremity (knee);
right lower extremity (knee), and
TEMSKI/scarring.
Method:  whole person impairment.
(b)    The materials to be referred to the Medical Assessor are to include:
(i)ARD and attached documents, and
(ii)Reply and attached documents.
(c)    The respondent is to pay the applicant’s medical and related expenses, including bilateral knee replacements, pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge.
(d)    The respondent to pay the applicant weekly compensation in the amount of $1,551.10 per week for the period from 23 October 2023 to 29 January 2024, pursuant to s 36 of the 1987 Act.

[2024] NSWPIC 704

17 December 2024