Peel v Ferry Fencing Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Peel v Ferry Fencing Group Pty Ltd [2025] NSWPIC 393
APPLICANT:	Ben Peel
RESPONDENT:	Ferry Fencing Group Pty Ltd
MEMBER:	Adam Halstead
DATE OF DECISION:	11 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and expenses for medical treatment; sections 33 and 60; applicant worker’s left knee injured in 2012; records for medical treatment to September 2013; worker claims incapacity due to the injury from July 2024 and further medical treatment; respondent employer contends some undisclosed intervening event caused current incapacity and related need for medical treatment; Held – effects and symptoms of 2012 injury persisted throughout entire period; self-management of symptoms by the worker; ultimately incapacitated for work from July 2024 due to the 2012 injury; respondent to pay weekly compensation and treatment expenses.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. It is undisputed the applicant received an injury to his left knee on 13 April 2012 in the course of employment with the respondent 2. The applicant has been incapacitated for work due to the 13 April 2012 left knee injury since 1 July 2024. 3. The respondent is to pay the applicant weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 (the 1987 Act) from 1 July 2024. 4. A general order is made pursuant to s 60 of the 1987 Act for the respondent to pay the applicant’s reasonably incurred medical and related treatment expenses for his left knee injury. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

While at work on 13 April 2012, the applicant, Ben Peel, received an injury to his left knee, following the accidental discharge of a nail gun. The respondent, Ferry Fencing Group Pty Ltd, accepted liability for the injury at that time for workers compensation purposes and the applicant received treatment. The applicant claims the injury has prevented him from working since 1 July 2024 and requires further medical treatment. He seeks payment of weekly compensation and expenses for treatment. The claim is disputed by the respondent.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 2 April 2025 to initiate these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Following a preliminary conference on 14 May 2025, when procedural directions were made, the matter came before the Commission for arbitration hearing on 26 June 2025. Mr Loukas of counsel, instructed by Mr Afghan of Sher Legal, appeared for the applicant, who was also present. The respondent was represented by Mr Hanrahan of counsel, instructed by Mr Glavinceski of Hicksons Lawyers, and a delegate of its insurer was present.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

It is undisputed the applicant received a left knee injury on 13 April 2012. The issues for determination by the Commission are whether:
(a)    any liability for incapacity to work from 1 July 2024 results from the 13 April 2012 injury;
(b)    the applicant has incapacity to work as a result of the 13 April 2012 injury, and
(c)    the medical or other treatment sought by the applicant is a result of the 13 April 2012 injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply lodged by the respondent and attachments (Reply);
(c)    Application to Lodge Additional Documents (ALAD) made by the respondent on 16 May 2025 with two-page annexure (ALAD-1), and
(d)    ALAD made by the respondent on 16 June 2025 with 51-page annexure (ALAD-2).
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

It is uncontroversial that the applicant’s left knee was injured on 13 April 2012 (the 2012 injury), an incident he described as:[1]
“… while fixing the fence at work … a nail gun accidentally discharged, embedding a 65mm nail in the medial aspect of my left knee.”
[1] ARD p 1 at [6].
The dispute between the parties has arisen because the applicant claims he has been unable to work since 1 July 2024 due to the 2012 injury and requires medical treatment in addition to that which he received in the months following the incident. The respondent rejects the applicant’s claim, highlights the length of the intervening period, and is of the view that there must have been some other event in the years since the injury that is the cause of the applicant’s recent incapacity for work, if any incapacity exists.
Section 33 of the Workers Compensation Act 1987 (the 1987 Act) provides that weekly compensation is payable to an injured worker if total or partial incapacity for work results from an injury for which the employer is liable. The respondent contends that if the applicant is incapacitated for work, then it is for reasons other than the 2012 injury and so an essential requirement of s 33 is not satisfied.
It is well established that there needs to be a commonsense evaluation of the causal chain when considering whether incapacity is a result of the injury: Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452 (Kooragang). The facts of the case need be examined to determine that causal chain:[2]
“… the question whether the incapacity or death “results from” the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
[2] Kooragang at p 464 per Kirby P.
An intervening event, as has been submitted by the respondent, can nonetheless be relevant to break the causal chain:[3]
“… a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection.”
[3] Kooragang at 464.
In BlueScope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 (Sekulovski), Wood DP referred to the relevant test as set out in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 that in order to satisfy the test of causation implied by the expression “results of”, it is not necessary to establish the work injury was the only, or even a substantial, contributing factor. It is sufficient to establish only that the injury “materially contributed” to that need and “a condition can have multiple causes”.
The applicant’s evidence is that after the 2012 injury, he was admitted to hospital and underwent surgery to remove the embedded nail and for treatment of the wounded area.[4] He was discharged some days later and attended a follow-up consultation with the treating orthopaedic surgeon Dr Fred Nouh on 26 April 2012 when knee effusion and tenderness along the medial femoral condyle were present.[5] He commenced a course of physiotherapy and received medication for the treatment of pain.[6]
[4] ARD p 1 at [7].
[5] ARD p 1 at [10], which is evidence consistent with the reports of Dr Nouh of 14 April 2012 (Reply p 6) and 26 April 2012 (Reply p 8).
[6] ARD p 2 at [11].
The applicant continued to experience pain in his knee.[7] An MRI scan of the applicant’s left knee was obtained on 14 September 2012,[8] and according to the radiologist, Dr Fiona Leung, “artefacts” were noted to be “suspicious for small retained foreign bodies” and she thought that the posterior horn of the medial meniscus “may have been injured due to involvement along the trajectory course during foreign body implantation”, that is, the nail that had been shot into the applicant’s knee.
[7] ARD p 2 at [16].
[8] Reply p 11.
There was a further consultation with Dr Nouh on 21 September 2012 about that report and the ongoing pain.[9] A referral was made by Dr Nouh for the applicant to undergo a CT scan. At their subsequent consultation on 19 October 2012, Dr Nouh discussed the CT scan result, and those of a bone scan, then made arrangements for the administration of local anaesthetic and a cortisone injection into the applicant’s knee. It was noted then that repeat arthroscopic surgery may be required in the future if planned treatment was not successful.[10]
[9] Reply p 13.
[10] Reply p 16.
By the time of their 14 December 2012 consultation, Dr Nouh reported the applicant’s knee condition had “responded well to resting” but the pain recurred when he returned to work. The applicant had by then consulted another specialist for a second opinion, Dr Arash Nabavi, orthopaedic surgeon, on 18 November 2012, who thought there may have been damage to the saphenous nerve that would “take twelve months to settle down” and for him to “continue expectant treatment”.[11] According to the related 14 December 2012 report of Dr David Rail, neurologist, “nerve conduction studies though sural peroneal and tibial nerves were normal” but that specialist did not have any experience of measuring the saphenous nerve since it was his view the nerve is “not one that is conventionally studied”.[12]
[11] Reply p 18.
[12] Reply p 19.
Dr Nouh reported on 13 December 2012 that the applicant was “quite troubled by his medial sided knee pain” and although he was “reluctant to do a repeat arthroscopy” as it may be of no benefit, he nonetheless offered to conduct a diagnostic arthroscopy on the knee. Dr Nouh “cautioned” the applicant that the surgery “may not relieve all his symptoms” and recommended modification of work activities by reduction of daily hours.[13]
[13] Reply p 20.
According to the operation report, further surgery by way of a left knee arthroscopy, medial meniscectomy, open debridement of a medial femoral condyle wound and biopsy bone medial femoral condyle was performed by Dr Nouh on 14 February 2013.[14] A tear involving the posterior horn of the medial meniscus was identified along with mild synovitis involving the medial compartment of the knee.
[14] Reply p 21.
On 28 February 2013 Dr Nouh reported the applicant was “progressing well” after the second arthroscopy but still had “some pain in the region which is to be expected at two weeks after surgery”. Physiotherapy was prescribed and weightbearing on the leg was permitted to commence.[15] By the time of their 17 April 2013 consultation, Dr Nouh reported the applicant experiencing persisting knee pain and that:[16]
“The pain is not in the joint line this time and it is more localised to the old scar which was the entry point of the nail. It is also tender to touch the scar. This pain could be related to nerve entrapment or a neuroma and I have explained to him that it is unlikely to be due to an interarticular problem in the knee joint itself.
I expect this pain to settle down on its own, in the meantime he should continue with physiotherapy on his knee.”
[15] Reply p 22.
[16] Reply p 23.
The applicant returned to see Dr Nouh on 5 September 2013 with “increasing symptoms in his knee since going back to his routine work”. Dr Nouh reported that:[17]
“Clinically, there was no effusion. He still has very non-specific pain around the medial side of his knee joint, however he maintains a full range of movement and there was no instability.”
[17] Reply p 24.
According to the applicant’s statement evidence for the period thereafter, his knee pain “continued to worsen over time” and he “had to manage this pain” since he “had no other choice to earn money for [his] family”.[18] The applicant recalled that he “somehow manage[d] to work and rest throughout the number of years” and that:[19]
“The rehabilitation told me at the time not to tell anyone that I have an injury because no one will hire me as a worker anymore due to [the] workers compensation claim.”
[18] ARD p 3 at [26] and [27].
[19] ARD p 3 at [28] and [29].
The applicant had no specific treating general practitioner (GP), apparently for several years, and attended “medical centre walk-ins and the local GP of the suburb” who would prescribe pain relief medication.[20] In the four years to making his statement of 10 December 2024, the applicant described his “pain and swelling” as having “gotten worse”. Prior to having children, the applicant “used to work and take long rests to get some [relief] from the pain” but since becoming a parent he has found it difficult to rest after finishing work and “stopped working from July of 2024”.[21]
[20] ARD p 3 at [31].
[21] ARD p 4 at [32] to [36].
During a 2 July 2024 consultation with Dr Raymond Ao, the applicant reported “ongoing pain in the medial side of the knee” for which that GP noted relevant background as the applicant’s injury “around the age of 19 when he had a nail gun fire into the left knee”.[22] The results of a CT scan of the left knee performed the day before were also discussed.
[22] Reply p 93.
In the 1 July 2024 CT scan report, Dr David Doss, radiologist, commented that “appearances are in keeping with a medial meniscal body tear” and that the “ACL is also hyperdense suggestive [of] underlying injury” and an MRI was recommended, having identified that:[23]
“There is a 7 mm corticated bone fragment located at the anterior aspect of the lateral tibial condyle which however appears well corticated. This may be related to a fracture of indeterminate age ? Old.”
[23] Reply p 75.
Dr Frank Malara, radiologist, reported on 8 July 2024 about an MRI scan performed on the applicant’s left knee.[24] Amongst other findings, mild effusion, a “full thickness radial tear body medial meniscus” and moderate patellar chondromalacia were his conclusions.
[24] Reply p 25.
The applicant returned to see Dr Nouh on 26 July 2024, apparently for the first time since
5 September 2013. It was reported by Dr Nouh on that date the applicant continued “to experience episodes of swelling and discomfort in the knee, especially with increasing activities over the years” and that the pain had “become more frequent and more severe”.[25] Reference was made to the MRI which he stated:
“… showed an intrasubstance cyst at the footprint of the ACL, as well as a partial tear of the remaining posterior horn of the medial meniscus, and mild chondral fraying of the medial patellar facet.
[The applicant’s] symptoms may be due to overuse, with some contribution from early degeneration and, possibly, an ACL ganglion. He may need a repeat arthroscopy on the knee but at this stage we will manage him supportively with a cortisone injection, some physiotherapy and regular anti-inflammatories…”
[25] Reply p 26.
A bone scan was later arranged by Dr Nouh, which was conducted by Dr Quyen Nguyen, physician in nuclear medicine, on 28 September 2024 and who concluded (in relevant part):[26]
“In the clinical setting, the scan appearances are most in keeping with a fracture in posterior aspect of the left medial supracondylar region (at the site of penetrating injury) with associated mild diffuse synovitis”
[26] Reply p 28.
The applicant qualified Dr Farhan Shahzad, consultant occupational physician, as an independent medical examiner, and in his 22 October 2024 report, Dr Shahzad opined:[27]
“The connection between [the applicant’s] employment and his injury is directly related, as he sustained a left knee injury from a nail gun accident while on the job. Despite under-going surgeries and extensive physiotherapy, he continues to experience substantial symptoms, including persistent pain and swelling, particularly with increased activity. The physical demands of his subsequent roles, such as door-to-door sales and commercial carpentry, have worsened his condition, demonstrating that his work directly contributes to his ongoing issues. Medical professionals, including Dr Nouh, have linked his symptoms to overuse and early degeneration stemming from the original injury, reinforcing the fact that his pathology remains unresolved.”
[27] ARD p 29.
The respondent submits there is a “gap in the evidence” related to the applicant’s knee injury and highlighted the lack of medical records related to that issue between late 2013 and July 2024. It was contended there may have been another, separate injury that has not been satisfactorily explained, but that is the cause of the applicant’s recent incapacity. Something else must have occurred because the applicant’s condition now is not adequately supported by the history of the 2012 injury according to the respondent.
The respondent outlined evidence about the applicant’s work history with various subsequent employers and contended the Commission could not be satisfied there has not been another intervening incident causing further injury given the nature of that work, that is, a novus actus interveniens as cited by Kirby P in Kooragang that would break the chain of causation.
The difficulty with accepting the respondent’s submission is that there is no evidence to support it. There is evidence the applicant was involved in another work accident on
13 February 2019, but that was a laceration to his right shin that required sutures. It was entirely unrelated to his left knee and the respondent made no submission that it was. The applicant’s work history since 2013 was identified by the respondent as including labouring type work, but that of itself is insufficient to establish an intervening event capable of being a further left knee injury.
Reference was made by the respondent to the 8 July 2024 report of Dr Malara that cites “full thickness radial tear body medial meniscus”[28] as possible evidence of more recent injury. However, during the 14 February 2013 arthroscopic surgery, Dr Nouh identified a tear involving the posterior horn of the medial meniscus. These would appear to be the same or related damage. The respondent has not provided any expert evidence to support a contention that those tears differ. If they are distinct and separate tears then it is not a matter that can be reconciled by the Commission in these proceedings on the available evidence. On balance, I do not consider the report of Dr Malara is, of itself, evidence of subsequent frank injury.
[28] Reply p 25, but where the respondent referred to an extract of that report that appears at ARD p 92.
The respondent submits the Certificate of Capacity issued by Dr Sabiha Shahnaz, GP, on
[29] ARD p 107.
11 December 2024 suggests an “aggravation” of the applicant’s knee injury.[29] The certificate does cite “[a]ggravation of knee pain”, but it also refers to the 2012 injury; “Nail gun shot to left knee – causing injury to the meniscus, cyst and tear”.
I consider the aggravation has been adequately explained by the applicant’s evidence. Until the time he had children, the applicant was able to rest extensively each day after work to relieve the symptoms of the 2012 knee injury. The period available for daily rest was reduced once the time he devoted to it previously was redirected to the care of his children. His evidence is unambiguous, the knee pain never abated from the time of the injury, but he was able to manage it to various extents. Indeed, at the time of his last consultation (before returning to see him again almost 11 years later) with Dr Nouh on 5 September 2013 the applicant’s knee pain from the 13 April 2012 injury was getting worse, that is, there were at the time “increasing symptoms”.[30] The evidence does not support there having been an aggravating event, but rather a reduction in available rest time that had previously been available to alleviate the persistently present pain. The respondent’s submission as to an intervening event is based upon unsupported speculation and is not accepted.
[30] Reply p 24.

According to the respondent, the evidence from the independent medical examiner, Dr Shahzad, is superficial and does not provide sufficient explanation about how any recent incapacity for work the applicant may have, is a result of the 2012 injury. The respondent is also of the view that is it not satisfactory for Dr Nouh to merely refer to the nail gun incident as the basis of injury, there must also be a proper explanation about causation for the mechanism of injury.
Dealing first with the submission about Dr Nouh, his surgery reports of 14 April 2012 and
[31] Reply p 23.
[32] Reply p 49.
14 February 2013 were in evidence in the proceedings. The report of the second arthroscopic surgery identified a tear involving the posterior horn of the medial meniscus as well as mild synovitis involving the medial compartment of the knee. Dr Nouh later considered on 17 April 2013 that “nerve entrapment or a neuroma” might be responsible for the applicant’s pain.[31] These were reports of treatment following, and directly related to, the nail gun injury. His report of 26 July 2024 refers to the original nail gun injury and makes a connection to “increasing activities over the years” in the context of “more frequent and more severe” pain.[32] I consider that Dr Nouh has provided reasonable basis to connect the 2012 injury to the applicant’s on-going knee condition.
The findings of Dr Shahzad in his 22 October 2024 report were cogent and based upon the available evidence. He considered the various investigations reports and those of the treating specialists, most notably Dr Nouh. In circumstances where the applicant experienced persistent knee pain since the nail gun incident in 2012, and where there was no evidence of a later injury or some other relevant event, the conclusion reached by Dr Shahzad that the original injury was unresolved was entirely reasonable in linking the original injury to more recent pain and incapacity. It was unchallenged by contra expert evidence and is accepted.
The respondent contends there is no satisfactory evidence about how the original injury made a contribution to the applicant’s condition in recent times and referred to the decision of the High Court in Brawn v The King [2025] HCA 20. The court referred to the issue of material contribution and that it must be considered whether the contribution as alleged could have a realistic effect. In this case it certainly could have. There is little else to explain the applicant’s condition in circumstances where his evidence is that his pain has been persistent and “never went away” to paraphrase the submissions of his counsel. That there may be a lack of medical records evidence for several years cannot properly be used as the basis to accept some other event occurred that has not been acknowledged, which is in effect what the respondent seeks to do. The applicant’s evidence indicates that he was reluctant to disclose the nature of his injury for fear of losing work and that he otherwise adopted a course of self-managing his persisting pain with daily rest and recovery. It is reasonable to expect records would not exist in those circumstances.
It is sufficient for the applicant to establish only that the injury “materially contributed” to his current circumstances according to Sekulovski and it is not necessary to demonstrate the work injury was the only, or even a substantial, contributing factor. I am satisfied on the evidence that the injury received by the applicant on 13 April 2012 has materially contributed to his current incapacity to work as it the most probable cause applying a commonsense evaluation of the known facts.

Incapacity

The applicant’s evidence is of having been unable to work since 1 July 2024 due to the 2012 injury. The medical opinion of his treating GP Dr Shahnaz in the Certificates of Capacity dated 6 August 2024,[33] 20 August 2024[34] and 11 December 2024[35] is that the applicant had no capacity for work for the periods specified in those.
[33] ARD p 94.
[34] ARD p 98.
[35] ARD p 108.
The expert opinion of Dr Shazad on 22 October 2024 is also evidence of substantial weight on the applicant’s incapacity to work, that is, the applicant was considered to be “currently unfit to return to work in a capacity that requires physical exertion or weight-bearing activities” in circumstances where “previous attempts to return to work on reduced hours were unsuccessful”.[36] There is no evidence the applicant’s capacity for work has changed since the time of that medical opinion. I am therefore reasonably satisfied the applicant is incapacitated for work and has been since 1 July 2024 when he stopped working. Again, the is no substantive contradictory evidence.
[36] ARD p 31 at [8].
The requirements of s 33 of the 1987 Act are established, which means the respondent is required to pay the applicant weekly compensation. It is noted the parties agree the applicant’s pre-injury average weekly earnings were $1,231.10. The applicant’s claim for payment of weekly compensation pursuant to s 38 of the 1987 Act was not the subject of dispute in the event the respondent was found liable under s 33.

Medical treatment expenses

It was accepted by the respondent that the medical treatment sought by the applicant would be reasonably necessary for the purposes of s 60 of the 1987 Act if that treatment is as a result of the 13 April 2012. For the above reasons, I consider that it is.

SUMMARY

The applicant’s incapacity for work since 1 July 2024 is a result of the left knee injury he received on 13 April 2012 following a nail gun accident. He requires medical treatment for his persisting injury. The respondent is liable to compensate the applicant for both that incapacity to work and the required medical treatment.

[2025] NSWPIC 393

11 August 2025