Nayyer v I Need a Chef NSW Pty Ltd ATF I Need a Chef NSW Unit Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nayyer v I Need a Chef NSW Pty Ltd ATF I Need a Chef NSW Unit Trust [2025] NSWPIC 396
APPLICANT:	Hemant Nayyer
RESPONDENT:	I Need a Chef NSW Pty Ltd ATF I Need a Chef NSW Unit Trust
MEMBER:	Cameron Burge
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Consequential conditions; whether accepted left knee injury caused consequential conditions to right knee and lumbar spine; applicant suffered an accepted left knee injury; alleges as a result of that injury he has suffered consequential conditions to his right knee and lumbar spine; claims permanent impairment compensation in respect of all three body systems; Held – applicant did not have to establish the presence of pathological change in order to establish consequential conditions; Kumar v Royal Comfort Bedding Pty Ltd followed; the question of whether a consequential condition exists and must be determined by way of a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates applied; the evidence discloses a causal link between the accepted injury and the right knee and lumbar consequential conditions; the left knee, right knee, and lumbar spine will therefore all be the subject of referral for medical assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his left lower extremity (knee) in the course of his employment with the respondent on 2 July 2019. 2. As a result of his injury, the applicant suffered consequential conditions to his right lower extremity (knee) and lumbar spine. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 2 July 2019. Body systems referred: left lower extremity (knee), right lower extremity (knee); lumbar spine. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachment; (c) Reply and attachments, and (d) respondent’s Application to Lodge Additional Documents dated 30 July 2025 and attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 2 July 2019, the applicant, Hemant Nayyer suffered an accepted injury to his left knee whilst working as a chef with the respondent, I Need A Chef NSW Unit Trust.
The applicant alleges that as a result of his accepted injury, he has suffered consequential conditions to his right knee and lumbar spine. Liability for those alleged conditions is disputed by the respondent.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant suffered consequential conditions to his right knee and lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 7 August 2025. Mr Adhikary appeared for the applicant, instructed by Mr Malai. Mr Stiles appeared for the respondent, instructed by Mr Nielsen.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission):
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply, and
(c)    respondent’s Application to Lodge Additional Documents (ALAD) dated
30 July 2025.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered consequential conditions as alleged

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether an injured worker’s shoulder condition resulted from mobilising whilst recuperating from an accepted back injury. At [35] and following, Roche DP stated:
“35 By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”
The Deputy President then referred to the facts of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) and noted the question of the presence of a consequential condition is one of causation, which requires a commonsense evaluation of the causal chain and the totality of the evidence. Therefore, in this matter the relevant question will be whether there is an unbroken chain of causation from the applicant’s accepted left knee injury to the development of his right knee and lumbar spine conditions. If the answer to that question is in the affirmative, then there will be a finding of consequential condition.
As Mr Adhikary noted, an accepted injury need only make a material contribution to the development of a condition in another body system for the latter to be held to be a consequential condition. The meaning of the phrase “material contribution” was confirmed by the joint judgment of French CJ, Hayne and Keifel JJ in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd and Ors [2013] HCA 10 at [45], where their Honours stated:
“The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant’s wrongful conduct. It is enough for liability that a wrongdoer’s conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer place some part in contributing to the loss.”
It is therefore not necessary for an accepted injury to be either a substantial contributing factor or the main contributing factor to the development of a consequential condition. It is sufficient for the accepted injury to simply have been a cause of that condition.
There is no suggestion the applicant suffered from either lower back or right knee problems before the injury at issue.
The applicant sets out the circumstances of his injury in his statement as follows:
“15 On the day of the subject injury, I was walking up a set of stairs in the restaurant complex when my left knee gave way and twisted, causing me to fall over. I immediately felt an onset of intense sharp pain in my left knee. After slowly getting up off the floor, I realised that I could not stand, so I sat on the stairs and called out to security for help. I had some painkillers in my bag, so I took them to help relieve the pain. I then called my supervisor and reported the injury. My supervisor suggested that I take the rest of the day off work and that I consult with my GP.
16 However, I could not consult with the GP that day as the pain in my left knee prevented me from driving or walking to my local medical centre. Instead, I rested at home and took painkillers.”
The material before the Commission reveals the applicant consulted his general practitioner (GP), Dr Moussad the day after the injury. Subsequent radiological investigations revealed the presence of a meniscus tear in the applicant’s left knee. The applicant was then referred to orthopaedic surgeon, Dr Graham.
The applicant consulted with Dr Graham on 8 August 2019. Upon examination, Dr Graham immediately recommended left knee arthroscopic surgery, which was carried out on
20 September 2019. Following that surgery, the applicant was referred for physiotherapy which he commenced on 19 October 2019. The applicant states he found the sessions somewhat useful, but did not resolve his symptoms.
In the months following his initial surgery, the applicant’s left knee continued to remain very painful. He states that during the course of his physiotherapy treatment, he struggled to walk, stand or sit for extended periods of time without pain. According to the applicant:
“23. I always took painkillers, but I began to depend heavily on my right knee and lower back for strength and stability. For example, when walking or standing, I put all my weight into my right knee and lower back to take the pressure off my left knee. However, overcompensating for the ongoing pain and instability in my left knee only caused significant pain in my right knee and lower back.
24. On 5 June 2020, I returned to Dr Graham. I reported to Dr Graham that my left knee was extremely painful and that I was unable to walk with that pain. I also reported to Dr Graham that my right knee and lower back were painful, as a result of overuse.”
At this point, the applicant was referred for further MRI and cortisone injection to his left knee. Dr Graham also recommended an MRI of the applicant’s right knee, however, liability for that scan was declined by the respondent’s insurer.
The July 2020 MRI of the applicant’s left knee revealed residual tearing of his meniscus and the cortisone injection on 15 July 2020 provided him with some pain relief for approximately one week before his symptoms returned.
In approximately March 2021, the applicant attempted a six-week work trial but was unable to carry out the trial effectively. On 12 April 2022, the applicant returned to his GP and was referred for a further cortisone injection to his left knee which he had in approximately June 2022 without any improvement.
On 5 October 2022, the applicant again returned to his GP and reported severe pain in his left knee, right knee and lower back. A further MRI of the applicant’s left knee on
15 October 2022 revealed the presence of a tear in his meniscus, and in November 2022 treating surgeon, Dr Graham recommended further left knee surgery which the applicant underwent on 25 January 2023 in the nature of left knee arthroscopic surgery.
The applicant continued to experience some symptoms in his left knee following the surgery, and on 7 September 2023, he underwent a further MRI on his left knee which revealed the presence of mucoid degeneration of his anterior cruciate ligament.
The applicant eventually underwent an MRI of his right knee on 27 September 2023 and was advised he was suffering from retro patellar pain. The applicant indicates the symptoms in his right knee and lower back have persisted.
The applicant underwent a CT of his lumbosacral spine on 1 May 2025 which revealed disc bulges at L4/5 and L5/S1. A further CT of the applicant’s lumbar spine on 24 June 2025 confirmed these findings, together with broad-based disc protrusion at L1/2, minimal disc disease at L2/3 and a disc protrusion at L5/S1.
It is not necessary for the applicant to establish that his injury caused the pathology in the body systems for which he claims a consequential condition. That much is made clear by the decision in Kumar and is settled law in this jurisdiction.
In this matter, although the applicant did not have an MRI conducted on his right knee until September 2023, it is apparent he had complained of symptoms to that body system several years earlier. Dr Moussad has provided a report in which he supports the applicant as never having complained of right knee or lower back pain before his injury. He indicated that since the left knee injury in 2019, the applicant had developed poor posture and a favouring of his right knee to avoid further knee pain, which the GP states was the main contributing factor to the applicant’s right knee and lumbar spine pain.
The first mention of any right knee issues arose in when the applicant visited his GP on
29 May 2020. The injury on that day reads:
“Left knee pain improving
Right knee pain
Being favour it [sic].
Analgesia.
Specialist review next month.”
There is no issue that from this point forward, there were consistent references of right knee pain being suffered by the applicant. This includes visits on 13 June 2020 and 27 June 2020. It is also apparent the applicant’s left knee continued to be the major focus for treatment at and after this time.
On 4 June 2022, the applicant again consulted his GP at which time bilateral knee pain together with low back pain was recorded. This appears to be the first instance of lower back pain being recorded; however, the applicant says in his statement that he informed his GP of low back pain before this time.
It is settled law that caution must be taken when dealing with the histories contained within the clinical records of busy practitioners if they are sought to be relied upon to challenge the veracity of a history provided by an injured person: see Mason v Demasi & Anor [2009] NSWCA 227.
Mr Adhikary also noted there is no suggestion of any other precipitating event which might have caused the applicant’s back and right knee symptoms. I accept that submission, however, it is not determinative of the issue before the Commission.
Confirmation of the development of right knee symptoms is also found in the report of
Dr Graham, treating surgeon, dated 5 June 2020, where Dr Graham recommended a right knee MRI. In a further report dated 7 July 2020, Dr Graham noted the applicant was still experiencing ongoing pain in his left knee, which remained his main concern despite having issues with his right knee.
The applicant also relied on the opinion of Independent Medical Examiner (IME),
Dr Porteous. In his report dated 22 April 2024, Dr Porteous recorded a history of the applicant beginning to develop right knee pain in approximately April 2023 and lumbar spine pain “a few months ago.”
Mr Adhikary noted the onset of the right knee pain was plainly earlier than April 2023, and that Dr Porteous had inaccurately recorded this history.
At the time of his examination of the applicant, Dr Porteous recorded him as walking with a normal gait. Similarly, the respondent’s IME, Dr Rowe, also reported the applicant as walking with a normal gait at the time of his initial report of 8 December 2023.
When asked for a diagnosis of the applicant’s condition, Dr Porteous stated as follows:
“The diagnosis is an aggravation or exacerbation of pre-existing early degenerative change in the left knee with either aggravation of a prior meniscal tear or a new meniscal tear, as a result of the subject incident at work, 2 July 2019.
With favouring the left knee, he has had consequential right knee and lumbar back aggravation or exacerbation of pre-existing degenerative change in those areas and, in my opinion, those are as a consequence of his initial left knee injury.”
In a supplementary report dated 21 January 2025; after reviewing the findings of Dr Rowe, Dr Porteous maintained his view the applicant had suffered consequential conditions to both the right knee and the lumbar spine. He noted it was likely the applicant’s right knee had underlying degenerative change but that it was aggravated or exacerbated by prolonged walking with an abnormal gait and favouring of the right leg after the serious left knee injury.
Dr Rowe is the only practitioner who does not accept the presence of a consequential condition to the right knee and to the lumbar spine. In a report dated 9 October 2024,
Dr Rowe took the following history:
“Mr Nayyer outlined his current knee symptoms as follows. He said that he has similar symptoms in both knees although the left knee is a bit worse than the right knee.
The knees ache most of the time. The ache is worse with activity and in this regard he finds that after walking for more than about 10 minutes he likes to rest. He has difficulty on stairs. The knees give trouble when sitting and on arising from the sitting position. The knees ache more with any squatting or kneeling which he tries to avoid.
The knees may swell at random.
He said that his lower back began to ache around one to one and a half years ago although I note that he made no mention of it when he was previously seen by me on 6 December 2023. He said that it is noted mainly when doing exercises for his knees as shown by the physiotherapist. It is also noted when he is on stairs or with any extra walking.”
Dr Rowe indicated:
“There is no convincing evidence to relate his current back symptoms to the subject injury either directly or as a consequential injury. These lumbar spinal symptoms are of more recent origin. He is walking with a normal gait.”
In relation to the right knee, Dr Rowe recorded the applicant’s right knee began to ache between approximately April to June 2023, approximately four years after the subject injury.
As with Dr Porteous, that history is plainly incorrect given the clinical entries of the applicant’s GP.
Dr Rowe considered the applicant’s right knee condition was not consequential to the left knee injury. He opined the right knee may well be sore from osteoarthritis, but that condition is the result of underlying age and constitutionally determined factors.
On balance, I am of the view the applicant has suffered consequential conditions to both his right knee and to his lumbar spine.
Although both Dr Porteous and Dr Rowe recorded the applicant as walking with a normal gait from approximately 2024 onwards, it is noteworthy his GP and treating surgeon both refer to altered gait and to the onset of right knee symptoms far earlier than the time recorded by either IME. What is apparent is that by mid-2020, the applicant had developed right knee symptoms and was seen as walking with an altered gait which persisted for a long period of time.
The applicant’s left knee injury was plainly a serious one, requiring no less than two rounds of surgery, extensive physiotherapy and repeated cortisone injections with varying effect. As such, I have no difficulty accepting the applicant walked with an altered gait for an extended period of time, and that this has caused the onset of his right knee symptoms.
I have no difficulty accepting the applicant had pre-existing pathology in both his lumbar spine and his right knee. However, it is the experience of the applicant in relation to those body systems which is important, rather than the genesis of the pathology in them. There is no serious question the applicant’s right knee and lumbar spine were asymptomatic before the injury at issue, and that there is no potentially precipitating event between that injury and the present time which would account for the onset of the symptoms over and above age-related factors.
On balance, having regard to the clinical entries, the opinion of the applicant’s GP, his treating surgeon and that of the IMEs, I am satisfied on the balance of probabilities that the applicant’s symptoms in his right knee and lumbar spine are consequential conditions brought about by the accepted left knee injury, primarily through his altered gait and favouring of the right leg as a result of the accepted injury.
Although there is no recorded complaint of lumbar spine pain before approximately 2023, the applicant gives evidence that he had had lumbar symptoms for some time before then. I accept the applicant as a witness of truth, noting there is no challenge to his credit. I also note as a matter of common sense that walking for a protracted period with an altered gait and favouring one side of the body over the other could lead to the development of lumbar spine symptoms and have a deleterious effect on pre-existing but previously asymptomatic pathology in that body system.

In this matter, the evidence overwhelmingly favours a finding of consequential condition to both the right knee and the lumbar spine. As such, both of these systems will join the left knee in being referred to a Medical Assessor to determine the applicant’s permanent impairment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 396

12 August 2025