Pockran v Toll Holdings Ltd t/as Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pockran v Toll Holdings Ltd t/as Toll Transport Pty Ltd [2024] NSWPIC 166
APPLICANT:	Bryan Pockran
RESPONDENT:	Toll Pty Ltd
MEMBER:	Anne Gracie
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 past and future medical expenses for injury to right lower extremity (right knee); respondent disputes right knee injury, notice of injury, notice of claim, substantial contributing factor and reasonable necessity of the claimed section 60 expenses; consideration of applicant’s statements, respondent’s statements, medical reports and other treatment records, claim correspondence and documents; considered Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Hancock v East Coast Timber Products Pty Ltd, Krstevska v Fast Fluid Management Australia Pty Ltd, and Mason v Demasi; Held – the applicant injured his right knee on 9 June 2021 during the course of his employment with the respondent; the applicant’s employment with the respondent was a substantial contributing factor to his right knee injury; the applicant has established special circumstances pursuant to section 254(3)(a) and section 254(3)(b) of Workplace Injury Management and Workers Compensation Act 1998 in relation to notice of injury and reasonable cause pursuant to section 261(4) of the 1998 Act in relation to making a claim for compensation.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury to his right knee in the course of his employment with the respondent on 9 June 2021. 2. That the applicant’s employment was a substantial contributing factor to the injury sustained on 9 June 2021. 3. That the applicant has established that special circumstances exist pursuant to s 254 (3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) excusing the applicant from the obligation to give notice of injury as soon as possible after the injury. 4. That the applicant has established that reasonable cause exists as to why he failed to make a claim within the period required under s 261 (1) of the 1998 Act. The Commission orders: 5. Award in favour of the applicant against the respondent pursuant to s 60 of the WorkersCompensation Act1987 (the 1987 Act) in respect of past medical treatment expenses in the sum of $3,640.07. 6. Award in favour of the applicant against the respondent pursuant to s 60 of the 1987 Act in respect of future medical expenses in respect of the right total knee replacement surgery and associated expenses recommended by Dr Stening in his report dated 26 May 2023 as a result of injury sustained by the applicant on 9 June 2021 during the course of his employment with the respondent.

STATEMENT OF REASONS

BACKGROUND

Bryan Pockran (the applicant) is 75 years old and commenced employment with Toll Pty Ltd (the respondent) in 1997 as a driver. The applicant ceased working for the respondent on
30 July 2021. The applicant alleges that on 9 June 2021, during the course of his employment with the respondent, he sustained an injury to his right knee when he fell from the steps of the truck he had been driving as he was exiting the truck. The applicant did not report the injury to his right knee to his employer until early August 2021.The applicant did not seek medical treatment for his right knee until 29 June 2021. The applicant underwent a partial right knee replacement on 1 November 2022 under the care of Dr Stening. The respondent paid for this surgery on a without admission of liability basis following earlier proceedings in the Personal Injury Commission (Commission) on 15 July 2022.The applicant has been advised that he now requires a total right knee replacement by Dr Stening as the cement used to bond the prosthesis to the bone has failed. The applicant has also incurred
s 60 medical expenses since the surgery on 1 November 2022 including physiotherapy, medication and travel to his treatment providers. The respondent has denied liability for the injury to the right knee and for past s 60 medical expenses claimed for physiotherapy, medication and travel to medical providers that the applicant has incurred since the first surgery on 1 November 2022. The respondent has also declined liability for the total right knee replacement recommended by Dr Stening.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the respondent disputes that the applicant has sustained an injury to his right knee as defined by s 4 of the WorkersCompensation Act1987 (the 1987 Act);
(b) pursuant to s 9A of the 1987 Act, the respondent disputes that the applicant’s employment was a substantial contributing factor to the alleged injury;
(c) the respondent disputes that the applicant gave notice of the alleged injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(d) The respondent disputes that the applicant made a claim for compensation in accordance with s 261 (1) of the 1998 Act, and
(e) pursuant to s 60 of the 1987 Act, the respondent disputes that any medical or hospital treatment is reasonably necessary as a result of the alleged injury.

Matters previously notified as disputed

The respondent withdrew the dispute in respect of issue estoppel and the dispute in respect of s 4(b)(i) and s 4(b)(ii) in response to the applicant’s amendment to the Application to Resolve a Dispute (ARD) to only rely on a frank personal injury on 9 June 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing in person at 1 Oxford Street, Darlinghurst before me on 27 March 2024.
Mr William Carney, counsel instructed by Ms A Tavianatos solicitor, appeared for the applicant, Mr Bryan Pockran who was present with his wife Mrs Pockran. Mr Fraser Doak, counsel appeared for the respondent instructed by Ms Chantelle Bauer solicitor.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents filed 5 February 2024. At the conciliation /arbitration on 27 March 2024, the applicant amended the date of injury pleaded in the ARD to 9 June 2021 and confirmed this date of injury was pleaded as a frank injury. The respondent did not object to this amendment. Furthermore, pursuant to cl 44 of the Workers Compensation Regulations 2016, the applicant withdrew the opinion provided by Dr J Bodel in his report dated 9 November 2021 which forms one of the attachments to the ARD at page 200. However both the applicant and the respondent made reference to the history recorded by Dr Bodel in his report during the hearing of this matter;
(b)    Reply and attached documents filed 26 February 2024, and
(c)    Application to Admit Late Documents (AALD) filed by the applicant on
9 February 2024 admitted without objection at the conciliation/arbitration on
27 March 2024.

Oral evidence

There was no oral evidence called. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties

FINDINGS AND REASONS

Injury

The applicant alleges that he sustained an injury to his right knee while stepping down from a truck on 9 June 2021.
Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury
(a) means personal injury arising out of the course of employment.”
The applicant bears the onus of proving injury on the balance of probabilities.
Issues of causation must be determined on the facts of each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Injury simpliciter, or what is commonly referred to as a frank injury, requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state; Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWCCPD 47 (Kear). “Suddenness” is not a necessary requirement: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May).
The medical evidence supports that the applicant does suffer from a right knee condition.
The respondent deny that the right knee condition arose out of or in the course of the applicant’s employment with the respondent and further that the applicant’s employment with the respondent was not a substantial contributing factor to the right knee condition.
The respondent relies on inconsistencies in the applicant’s statements which are before me. The respondent also relies on inconsistencies in the histories taken by the doctors the applicant has seen for treatment and for medico legal purposes and whose reports and clinical notes are before me. The respondent submits the histories provided by the applicant to numerous doctors and in his statements are unreliable. After identifying these inconsistencies in the evidence, the respondent submits that there needs to be a confluence between the asserted facts and the assumptions or opinions that the doctors have relied on.
The respondent relies on the opinion of Associate Professor Miniter who advises that the applicant’s right knee condition is simply age related and perhaps weight related. Associate Professor Miniter does not accept that the injury occurred as described to him by the applicant and opines that there is more than sufficient evidence to suggest the applicant did not injure his knee during the course of his employment as alleged.
In this regard, counsel for the respondent took me to the applicant’s first statement dated
18 August 2021 and in particular paragraph 55 (see page of the 15 ARD), where the applicant states he “fell backwards onto the concrete surface landing on my right and onto my lower back. I fell about a half to one metre”, and paragraph 56 “I felt pain in my tailbone. It was sore. I cannot recall having any other pain. I did not tear my trousers and I had no swelling in my right knee… I cannot recall if I had any problems with my right knee as there was nothing of significance”. Paragraph 58 “I drove back to the depot and continued working my shift. I did not report to anyone that I had a fall and hurt my tailbone and right knee”.
The respondent submits that the applicant did not report the right knee injury as he had not injured the right knee.
The respondent submits that in the clinical notes provided by the applicant’s treating doctor, Dr Brdarevic (see page 69 of the ARD) that at the applicant’s attendance on 29 June 2021
Dr Brdarevic records “presenting 1/52 History of pain over the Rt popliteal region causing him to limp O/E Tender swelling over the area. Full ROM. Bakers cyst”.
The respondent notes that at this consultation there was no history taken of the alleged injury on 9 June 2021. Dr Brdarevic did however refer the applicant for an X-ray, ultrasound and later, on 14 July 2021, referred the applicant for an MRI scan and referred the applicant to see Dr Stening, orthopaedic surgeon.
On 2 August 2021, Dr Brdarevic recorded that the applicant had seen Dr Stening and surgery was booked for 24 August 2024.
On 6 August 2021, Dr Brdarevic recorded that a New South Wales Workcover certificate of capacity was issued. The respondent submits that it was only at this consultation that
Dr Brdarevic was advised of the history of the alleged injury on 9 June 2021.
The respondent submits that the applicant was able to continue to work after the alleged injury on 9 June 2021 which the respondent says is inconsistent with the severity of the right knee condition. The statement from Mr Jonathon Neasey, the Operations Manager for the respondent, states that the applicant worked and completed 29 shifts between the alleged date of injury and when he ceased work on 30 July 2021, (see paragraph 60 of the statement of Mr Neasey dated 30 August 2021) (see page 18 of the Reply).
The respondent submits that the applicant would not have been able to work and complete his shifts if he had injured himself as described on 9 June 2021. The respondent has provided a clear description of the applicant’s duties as a driver in the statement of
Mr Neasey at paragraphs 42-44 (see page 16 of the Reply), and the statement of Mr Dean Southern, the respondent’s Senior Manager and Site Manager, dated 19 August 2021, at paragraphs 39-41 (see page 5 of the Reply). The description of duties is confirmed by the applicant in his statement dated 13 August 2021 at paragraphs 34 to 38 (see page 13 of the ARD). The description of duties confirms the applicant had to climb into and out of the truck cabin via three steps and using handrails with a fourth step into the cabin.
The respondent further submits that before the commencement of each shift, the applicant was required to sign a Driver’s Daily Declaration that confirmed that he was fit and well to undertake the trip. The respondent relies on a number of Driver’s Daily Declarations signed by the applicant after the alleged date of injury on 14 July 2021, 15 July 2021 and
30 July 2021 (see pages 99 to 101 of the Reply). The respondent submits that the applicant was fit and well to carry out his duties as a driver which involved repeated climbing up and down the stairs of the truck. The respondent submits that this supports the denial of liability for any injury to the applicant’s right knee on 9 June 2021.
The respondent concedes that the MRI scan taken on 13 July 2021, (see page 97 of the ARD), demonstrated a medial meniscus tear with extrusion however the respondent questions how the applicant could have continued working after sustaining the alleged injury between 9 June 2021 and 30 July 2021 without seeking medical advice until 29 June 2021, over two weeks after the alleged injury.
The respondent then took me to the report from the treating orthopaedic surgeon Dr Stening dated 2 August 2021 (see page 146 of the ARD) prepared by Dr Stening following the initial consultation with the applicant on the same day. In that report, Dr Stening records the following history from the applicant:
“He presents a month after injuring his right knee when he fell stepping out of the truck at work. Interestingly at the time he lost his footing on a step while climbing down out of the truck and landed heavily on the left lower limb. Soon afterwards he developed pain in the right knee. Prior to this his knee was fine.”
The respondent points out the following inconsistencies in the history recorded by Dr Stening in his report. Firstly, Dr Stening was advised by the applicant that the fall from the truck step was a month ago. The respondent submits that would put the date of the accident in early July 2021 rather than 9 June 2021. Secondly, the respondent placed great reliance on the reference to the applicant landing on the left lower limb. Thirdly, Dr Stening takes no history from the applicant that he fell on his tailbone. Fourthly, Dr Stening takes no history of the applicant twisting his right knee which is recorded in later reports prepared by the independent medical assessors, Dr Bodel dated 9 November 2021 (see page 200 of the ARD), and Dr Endrey-Walder dated 17 July 2023 (see page 48 of the ARD) and Associate Professor Miniter in his report dated 14 September 2021 following consultation on
25 August 2021 (see page 142 of the Reply).
The respondent then took me to the independent medical report provided by Dr Endrey-Walder dated 17 July 2023. (See page 48 of the ARD). In that report the following history was recorded by Dr Endrey-Walder from the applicant,
“Getting out of the cab my foot slipped on the second last step and I landed heavily on my right leg, twisted my knee as my foot hit the ground I fell on my backside. At first it was only my lower back that hurt, the knee wasn't much of a bother at the time.”
The respondent then took me to the history taken from the applicant in the independent medical report provided by Dr Bodel dated 9 November 2021 (see page 200 of the ARD). In that report the following history was recorded by Dr Bodel:
“This gentleman suffered an injury to his right knee at work on 09 June 2021 at 6:45 PM. He was at the time driving a 16-pallet truck and he twisted his right knee as he was stepping down out of the cab of the truck. His right leg slipped off the step and he still had his left hand on the truck. His right leg gave way and he fell, twisting his lower back.
He was not rendered unconscious, however within half an hour the knee began to swell and became worse over the next few days.”
The respondent submits that at no time prior to the report from Dr Bodel dated
9 November 2021 was there any mention of the applicant twisting his right knee. The respondent also submits that prior to the report of Dr Bodel dated 9 November 2021, the medical evidence and the applicant’s statement made no mention of the right knee beginning to swell within half an hour of the alleged fall nor a history that the right knee became worse “over the next few days” after the alleged accident.
The respondent submits that the applicant has not provided a “causal pathway” to establish the necessary link between the alleged date of injury on 9 June 2021 and the subsequent problems the applicant developed in his right knee.
The respondent further submits that there is an assumption by Dr Stening that the onset of symptoms in the applicant’s right knee was close to the time of the fall. The respondent relies on the following sentences from the report of Dr Stening dated 2 August 2021 to support this (see page 123 of the ARD):
“He presents a month after injuring his right knee… Soon afterwards he developed pain in the right knee.”
The respondent also points out in Dr Stening’s handwritten notes at the first consultation with the applicant on 2 August 2021, Dr Stening records “DOI 4/52” (see page 121 of the ARD).
The respondent submits that the assumption by Dr Stening that the applicant developed pain “Soon afterwards” is not supported by the evidence or the date of the injury now pleaded as 9 June 2021. The respondent further submits that the alleged injury to the right knee did not occur four weeks before the consultation with Dr Stening on 2 August 2021.
The respondent submits that the applicant has embellished his story to Dr Endrey-Walder by stating that “the knee wasn't much of a bother at that time” (see page 49 of the ARD). The respondent submits that this is clearly inconsistent with the applicant’s statement dated
18 August 2021 where he categorically states that he wasn’t injured and didn't have any symptoms in his right knee.
The respondent submits that the applicant’s statement of 7 April 2022 is also inconsistent with his first statement dated 18 August 2021. In paragraph 7 of his statement of 7 April 2022 (see page 5 of the ARD), the applicant states: “I kept working and the pain in my knee continued to worsen to the point where it began to swell”. The respondent submits there was no injury to the right knee so therefore it is implausible that the right knee would continue to worsen and begin to swell.
The respondent referred to the Driver's Daily Runsheet for 9 June 2021 that is annexed to the statement from the applicant dated 7 April 2022, (see page 9 of the ARD). The respondent submits that the applicant has advised that the injury occurred at 6.30pm however the Driver's Daily Runsheet for 9 June 2021 records the applicant’s break at Eastern Creek, which is where the applicant alleges the accident occurred, was between 6.45pm to 7.15pm. The respondent also comments that the handwriting on the Driver’s Daily Runsheet for 9 June 2021 noting the applicant’s break at Eastern Creek appears to be either a different pen or done at a different time.

The respondent also referred to the applicant’s failure to identify the correct date of injury. The respondent pointed out that in the applicant’s first statement dated 18 August 2021 he stated the accident occurred on 10 June 2021. In his second statement of 7 April 2022 the applicant advises that the injury occurred on 9 June 2021. In the Incident Notification form completed by Mr Neasey, Mr Neasey records the date of accident on 1 July 2021 (see page 116 of the Reply). In the applicant’s claim form, which is undated and only comprises six out of eight pages, the applicant records the date of injury as 10 June 2021 (see page 120 of the ARD). The respondent submits that the applicant’s failure to recall the correct date of the accident provides further evidence that the accident and injury did not occur during the course of the applicant’s employment.
The respondent also submits that the applicant has provided several different times of when the accident occurred. In his statement of 18 August 2021, the applicant records the accident occurring at 6:30pm. Dr Bodel takes a history that the accident occurred at 6.45pm. In his claim form, the applicant has recorded the accident occurred at 6.30pm (see page 122 of the Reply). Mr Neasey recorded the time of the accident on the incident notification form as 7.30pm (see page 115 of the Reply). The Driver’s Daily run sheet provided by the applicant for 9 June 2021 notes the applicant took his break at the Caltex service station at Eastern Creek on the M4 between 6.45pm and 7.15pm. The respondent submits that the inconsistencies between the reported times of the accident on 9 June 2021 lend further support to the respondent’s submission that the applicant did not injure his right knee on
9 June 2021.
The respondent also submits that the failure by the applicant to report the accident to his employer “as soon as possible after the injury happened”, lends further support to the respondent’s denial of liability for the injury. (see s 254 of the 1998 Act). The respondent has provided statements by Mr Neasey and Mr Southern outlining the procedures the respondent had in place to report an incident or injury. The applicant himself confirms that he is aware of these procedures in his first statement dated 18 August 2021 (see page 12 of the ARD). The respondent submits that the applicant’s failure to follow the procedures casts further doubt on the validity of his claim.
The respondent then referred to the decision of Hancock v East Coast Timber Products PtyLtd [2011] NSWCA 11(Hancock) and the decision of Krstevska v Fast & Fluid ManagementAustralia Pty Ltd [2012] NSWWCCPD 69 in relation to the medical reports relied upon by the applicant in these proceedings. The respondent submits that as a result of the inconsistent, unreliable histories provided to the applicant’s treating doctors and to the independent medical examiners by the applicant, a “fair climate” did not exist for the acceptance of the opinions expressed in the reports.
The applicant submits that he did injure his right knee on 9 June 2021 in the manner described in his statement of 18 August 2021. The applicant concedes that the respondent was initially informed that the accident occurred on 10 June 2021 however I note in this respect the following evidence. Firstly, in his statement taken by a private investigator on behalf of the respondent on 13 August 2021 and signed by the applicant on 18 August 2021 in paragraph 45, the applicant advised that he had “worked it out that” his “injury occurred on 10 June 2021”. In paragraph 59, the applicant further advises that if he is asked questions about the shift later, he would have to refer to his paperwork. It must be remembered that the applicant’s statement was taken 10 weeks after the alleged injury.
The applicant has a clear recollection of the location of the accident and also the manner in which the accident occurred.
In submissions, the applicant acknowledged that he had provided slightly differing versions of the events that occurred on 9 June 2021 to his operations manager, Mr Neasey, to the private investigator engaged by the respondent and to the numerous medical specialists the applicant had seen since the alleged injury. However, despite these minor inconsistencies, the applicant has always maintained that he fell from the steps of his truck when he was exiting the truck for his break at the Caltex M4 Eastern Creek at sometime after 6.30pm on
9 June 2021. The applicant has also maintained that he fell on his tailbone (or bum) and it was this pain that caused him his immediate concern. He did not develop pain in his right knee until some time after. In this respect, in the claim form the applicant noted he started feeling pain in his right knee on 17 June 2021. According to the applicant’s statement of
18 August 2021, the applicant continued working after 9 June 2021. He had two rostered days off on 12 June 2021 and 13 June 2021 and then worked between 14 June 2021 to
17 June 2021. The applicant in his statement of 18 August 2021 confirmed he started to feel discomfort in his right knee towards the last week in June 2021. I note the respondent have annexed copies of the applicant’s leave records however, unhelpfully the records only go up to 22 November 2020 (see page 105 of the Reply).
The respondent has not provided medical evidence to suggest that a medial meniscus tear would have resulted in immediate pain in the knee and would have made it impossible for the applicant to continue working.
In the Incident Notification Form completed by the applicant’s Operations Manager,
Mr Neasey, Mr Neasey records the following information (see page 116 of the Reply). The incident date is recorded by Mr Neasey as 1 July 2021 and the date that the applicant reported the incident is recorded as 1 August 2021. This would appear to be inconsistent with the information contained in the Detailed Description section of the form where
Mr Neasey has recorded that the applicant reported the right knee injury on 3 August 2021. Mr Neasey has also recorded the following “He said sometime over a month ago at the M4 Caltex- approx 7:30 PM- (he has no recollection or note of exact day or date) he has slipped whilst getting out of the prime mover and that is where the injury occurred. He stated at the time he only had a sore bum so didn't worry about reporting it but after a few weeks he started feeling sore in the knee so he decided to see his doctor/specialist and found out there's a tear in the meniscus”.
It should be noted that I do not have a copy of the certificate of capacity issued by the applicant’s nominated treating doctor referred to in the doctor’s clinical notes for an attendance by the applicant on 6 August 2021 (see page 70 of the ARD).
In his statement of 18 August 2021, the applicant confirms that he did not seek medical attention for an injury to his right knee and he did not take any sick days due to the injury to his right knee until 29 June 2021. The applicant advises that he worked between
11 June 2021 to 29 June 2020. The applicant advises that he started to feel discomfort in his right knee towards the last week in June 2021 and he consulted his family doctor on
29 June 2021.
In the Claim Form completed by the applicant (see page 120 of the Reply), the date of injury recorded by the applicant is 10 June 2021. The Claim form does not bear the date the applicant signed this form as the last two pages of the form are not reproduced in the Reply. Despite this, the incident details recorded by the applicant (see page 121 of the Reply) are consistent with the mechanism of injury provided by the applicant in his statement dated
18 August 2021 in that the applicant was climbing out of the cab of the truck when he slipped off the top step and fell on to the ground. The applicant notes the injury/condition as the right knee. The applicant confirms the accident occurred at the Caltex Service Station, west bound on the M4 at Eastern Creek where he had stopped for a work break. The applicant provides further relevant information in response to the section of the form detailing the date of injury, the date when the applicant first noticed the injury/condition and his reason for the delay in reporting the incident (see page 122 of the Reply). The applicant, at that time, recorded the date of accident as 10 June 2021 at 6.30pm. The applicant recorded that he first noticed symptoms in his right knee on 17 June 2021. The applicant confirms he stopped work on
30 July 2021 and reported the incident on 4 August 2021. The applicant has completed the section of the form which asks the following question, “If you did not report the injury/condition, or there was a delay, please explain why”. The applicant provided the following response to that question “There was a delay in the injury becoming painful and my ability to claim”. Until the applicant received the results of the MRI scan and discussed the results with Dr Brdarevic, the applicant had no knowledge of the seriousness of the injury to his right knee.
The respondent submits that the different times of the accident that have been recorded in various documents in respect of the applicant's accident on 9 June 2021, including the applicant’s statement, the claim form and the injury notification form should be considered unreliable and further proof that the injury to the right knee did not occur at work on
9 June 2021. In relation to this, the applicant’s counsel made the following submission from the bar table on instructions from the applicant. The applicant advised that the break periods on the Drivers Daily runsheets are recorded in 15 minute intervals. Although this doesn't entirely explain the three differing times of 6:30pm, 6:45pm or 7:30pm, I am of the view that this is not of any great significance and does not support the respondent’s submission that this aspect of the evidence is unreliable and supports a finding that the applicant did not sustain an injury to his right knee on 9 June 2021.
In his statement of 30 August 2021, Mr Neasey confirms that the applicant was not sure of the date of his injury and could not recall the day or date of the incident. The applicant did however provide Mr Neasey with a consistent description of how the injury occurred. At paragraph 64 of Mr Neasey’s statement he records that the applicant advised him that he tripped when coming out of a truck. Mr Neasey records the applicant advised him that he didn’t report the right knee injury immediately as he only had a sore bum and the applicant only went to see his doctor when the right knee became sore (see page 19 of the Reply).
The applicant had worked for the respondent since 8 December 1997. During his 24 years’ service he had never been counselled for work performance issues or breaches in company policy or procedures. This is supported by the statement of Mr Neasey dated
30 August 2021 (see page 15 of the Reply) and the statement of Mr Southern dated
19 August 2021 (see page 4 of the Reply).
The applicant had undergone a medical examination before commencing with the respondent. There is no suggestion in the medical evidence before me that prior to
9 June 2021, the applicant was experiencing symptoms in his right knee.
The applicant submits that the MRI scan of the right knee taken on 13 July 2021 is significant evidence to support injury (see page 97 of the ARD). The clinical note provided to the radiographer states “History of pain and swelling. Rule out meniscal injury”. The radiographer’s comments on the MRI scan are equally relevant. The comments read “Recent-appearing high-grade radial tear posterior horn medial meniscus extending to involve the posterior third of the meniscal root, without complete meniscal root avulsion” and “Baker's cyst and features of recent cyst leakage”. Further of note in the MRI scan findings, the radiographer has recorded the following “The tear appears recent”.
In response to Associate Professor Miniter’s opinion that the applicant’s right knee condition is age and/or weight related, the findings of the MRI scan of 13 July 2021 are significant.
Dr Endrey-Walder comments that arthritic changes in the applicant’s right knee are not well established (see page 53 of the ARD). Dr Stening also opines that the applicant’s symptoms are “not degenerative” in his report dated 30 August 2021 where he comments on the opinion expressed by Associate Professor Miniter (see page 156 of the ARD).
In relation to the suggestion that the applicant’s weight has caused his right knee symptoms, I note in the Lakeview Private Hospital admission form completed by Dr Stening on
2 August 2021, the applicant weighed 68kg (see page 153 of the ARD). According to the report from Associate Professor Miniter dated 14 September 2021, the applicant weighed 68km and was 5 foot 1 (see page 145 of the reply) Associate Professor Miniter described the applicant as only “slightly overweight”. There is no suggestion in the clinical notes from the applicant’s treating doctor, Dr Brdarevic that the applicant suffers from obesity or weight issues (see pages 57 - 96 of the ARD).
When considering the admission form completed by Dr Stening on 2 August 2021 it is convenient to address the submissions put forward by the respondent in relation to the first report prepared on the same day as the admission form by Dr Stening dated
2 August 2021 (see page 146 of the ARD). The respondent pointed out that Dr Stening had recorded that the applicant “landed heavily on the left lower limb” when he lost his footing as he was exiting the truck. I am of the opinion that this was a mistake made by Dr Stening and the history should have recorded that the applicant landed heavily on the right lower limb. I note in the sentence immediately following the reference to the left lower limb, Dr Stening notes that “Soon afterwards he developed pain in his right knee”. This would be consistent with the applicant landing on his right lower limb, not his left lower limb. Further in the Lakeview Private Hospital Admission Form dated 2 August 2021, Dr Stening has initially written “left knee” on the consent form and has crossed out the reference to “left knee” and written “right knee”. Unfortunately, the reference to the left lower limb in the report of
2 August 2021 was not corrected by Dr Stening. For these reasons I find that the reference to the left lower limb in the report from Dr Stening dated 2 August 2021 was a mistake.
The respondent also submitted that the use of the phrase “Soon afterwards” by Dr Stening in his report of 2 August 2021 in respect of when the applicant developed symptoms in his right knee was inconsistent with the evidence. Dr Stening did not record that the applicant immediately felt symptoms in his right knee following the fall. The claim form completed by the applicant records the applicant first noticed the right knee symptoms on 17 June 2021. This would be consistent with the phrase used by Dr Stening, “Soon afterwards”. Furthermore, in the Incident Notification form completed by Mr Neasey, which appears to have been completed on either 1 August 2021 or 3 August 2021, Mr Neasey records that “after a few weeks he (the applicant) started feeling a sore in the right knee”. In my view, the use of the words “soon afterwards” by Dr Stening in his report of 2 August 2021 is consistent with the claim form and the incident notification form and the first statement of the applicant dated 18 August 2021. In that statement, the applicant states “I started feeling discomfort in my right knee towards the last week in June 2021” (see page 76 of the ARD).
In relation to the respondent’s submission that Dr Stening’s notation taken at the first consultation with the applicant on 2 August 2021, which reads “DOI 4/52” is not consistent with a history of injury on 9 June 2021, I make the following observations. The appointment with Dr Stening was approximately four weeks after the applicant first saw Dr Brdarevic on 29 June 2021. A four week period is also consistent with the applicant’s statement of
18 August 2021 where the applicant states that “I started feeling discomfort in my right knee towards the last week in June 2021” (see page 16 on the ARD). I concede that the use of the acronym DOI (date of injury) by Dr Stening is not helpful to the applicant’s case however it is consistent with the development of symptoms in the applicant’s right knee rather than the date of the injury.
In relation to the clinical notes from Dr Brdarevic, the applicant has confirmed that he did not request a certificate of capacity from Dr Brdarevic at the consultations on 29 June 2021 or
14 July 2021 as he was “generally able to work his normal shifts” (see page 5 of the ARD). It should however be noted that between the alleged date of injury on 9 June 2021 and
30 July 2021 when the applicant went off work, he had his usual rostered days off work and he was also absent from work for 16 days between 29 June 2021 and 30 July 2021 due to being identified as a COVID-19 close contact (see page 16 of the ARD).
The respondent also submits that the applicant made no mention of a work-related injury to his right knee at his attendance with Dr Brdarevic on 29 June 2021 or on 14 July 2021 (see page 69 of the ARD). The respondent took me to the clinical notes of the attendance on
29 June 2021 and 14 July 2021 and the report prepared by Dr Brdarevic dated 5 May 2022 (see page 98 of the ARD).
At this point it is convenient to consider the comments made by Basten JA in the case of Mason v Demasi [2009] NSWCA 227 in relation to clinical records. Basten JA commented that inconsistencies between a party’s evidence and medical histories should be treated with caution. In the present case, Dr Brdarevic was not cross examined about what he was told by the applicant on 29 June 2021. The clinical record from Dr Brdarevic is likely to be a summary of the consultation rather than a verbatim recording. The short history that was recorded by Dr Brdarevic on 29 June 2021 was taken for the purpose of investigating the pain the applicant was experiencing in his right knee. The applicant has confirmed that he did not ask for a certificate of capacity from Dr Brdarevic until he was no longer able to work. In the applicant’s statement of 18 August 2021, the statement is silent as to whether or not he advised Dr Brdaevic of the facts of the work accident at the consultations on 29 June 2021 or 14 July 2021 (see page 16 of the ARD). In his statement of 18 August 2021, the applicant records that at the appointment with Dr Brdarevic on 29 June 2021, Dr Brdarevic advised the applicant that he had “done something to his knee”. The applicant further states that “I was not placed on a certificate of capacity”. It could be that the work injury was discussed at this consultation however as the applicant was still able to work the applicant was not “placed on a certificate of capacity” by Dr Brdarevic on 29 June 2021. It is for this reason that the comments made by Basten JA in relation to clinical notes are particularly relevant in the assessment of the clinical notes in this case.
In relation to the report from Dr Brdarevic dated 5 May 2022, I note the respondent’s submission that on one reading of that report, the applicant did not report his injury until his attendance with Dr Brdarevic until 6 August 2021 (see page 98 of the ARD). I agree with the respondent’s submission that Dr Brdarevic was only advised of the circumstances of the applicant’s injury on 6 August 2021 however at the attendance with Dr Brdarevic on
14 July 2021, Dr Brdarevic has advised in his report of 5 May 2022 that the applicant “presented in relation to his right knee injury”. In my opinion the reference to “right knee injury” supports the applicant’s submission that the applicant injured his right knee at work and reported the work injury to Dr Brdarevic. If the problems the applicant was experiencing with his right knee were due to him being overweight or due to age related changes as suggested by Associate Professor Miniter, Dr Brdarevic would have recorded right knee condition or right knee symptoms rather than “right knee injury”. In support of this there is no suggestion in the evidence before me that the applicant had suffered any other injury to his right knee apart from the injury he sustained to his right knee at work on 9 June 2021. I am therefore not persuaded that the applicant first mentioned his work related injury to
Dr Brdarevic on 6 August 2021.

In relation to the respondent’s submission that the applicant did not provide a history of twisting his right knee to Dr Brdarevic or Dr M Stening, I note that the applicant is not a medical professional. The applicant has advised Dr Brdarevic and Dr M Stening that he fell from the steps of the truck onto his right knee. I do not accept the respondent’s submission that the applicant embellished his recount of the accident to support his claim.
Furthermore, in his report of 14 September 2021 following the consultation on
25 August 2021, Associate Professor Miniter responds to the following question posed by the respondent: “What does Mr Pockran report to be the cause of his right knee injury”. Associate Professor Miniter responds as follows: “This gentleman reports the cause of his right knee injury to be the twisting episode” (see page 145 of the Reply).
The applicant has consistently provided the same history of the mechanics of the fall and the location of where the accident happened to the medical providers he has seen and also in the statements he has provided.
At the time of the fall the applicant did not experience pain in his right knee however, according to his claim form, the pain developed in his right knee on or after 17 June 2021.
The MRI scan demonstrates a recent leakage to a Baker's cyst, which is consistent with the applicant’s presentation of pain at the practice of Dr Brdarevic on 29 June 2021. The MRI scan also documents a recent meniscal tear in the right knee. There is nothing before me to suggest the applicant's injury to his right knee occurred as a result of an incident other than the work accident on 9 June 2021.
In relation to the respondent’s submission that the applicant has embellished his story to
Dr Endrey-Walder by stating that “the knee wasn’t much of a bother at that time” (see page 49 of the ARD), in the applicant’s statement of 18 August 2021, the applicant states “I cannot recall if I had any problem with the right knee as there was nothing of significance” on the day of the alleged injury. In the circumstances I do not accept the respondent’s submission that the applicant embellished his story when he was seen by Dr Endrey-Walder on
17 July 2023.
In relation to the respondent’s submission that the applicant’s statement of 7 April 2022 is inconsistent with the applicant’s statement of 18 August 2021 where the applicant states: “I kept working and the pain in my right knee continued to worsen to the point where it began to swell” (see page 5 of the ARD), the respondent submitted that as there was no injury to the right knee on 9 June 2021, the right knee could not have “continued to worsen”. I do not accept this submission. The statement from the applicant does not give a definitive time frame during which the applicant started to develop pain in his right knee. The statement of
7 April 2022 is consistent with the applicant’s evidence and prior statement that he became aware of pain in his right knee sometime after 9 June 2021. Once he became aware of the symptoms in his right knee, the symptoms continued to worsen to the point where he sought medical treatment and stopped working.
In relation to the respondent’s submission that the Driver’s Daily runsheet of 9 June 2021 had been tampered with by inserting the words “Eastern Creek” into the section of the form recording the applicant’s breaks on 9 June 2021, the respondent has had access to this document since 2022. The respondent did not arrange to have the document examined by a forensic expert and no expert report was provided to support this submission. In light of this I reject this submission.
Having considered all of the evidence before me and the submissions made on behalf of the applicant and the respondent, I am satisfied that the applicant injured his right knee during the course of his employment with the respondent on 9 June 2021. I therefore find that the applicant injured his right knee during the course of his employment with the respondent on
9 June 2021.

Substantial contributing factor

Having found that the applicant injured his right knee during the course of his employment with the respondent on 9 June 2021, I now turn to the issue of whether or not the applicant’s employment with the respondent was a substantial contributing factor to the injury the applicant sustained to his right knee.
I reject the opinion expressed by Associate Professor Miniter who has provided several reports on behalf of the respondent who opines that the applicant’s right knee condition is age related and/or weight related. I have already provided my reasons as to why I do not accept that the condition in the applicant's right knee was caused by age or weight related factors.
The applicant has no prior history of right knee symptoms. This is confirmed by his general practitioner Dr Brdarevic in his report of 5 May 2022 (see page 100 of the ARD).
The applicant has always maintained that he injured his right knee when he fell from the steps as he was exiting the truck to take his break at the Caltex service station on the M4 at Eastern Creek on 9 June 2021 during the course of his employment with the respondent.
I accept the medical opinion expressed by Dr Brdarevic in his report of 5 May 2022 that the applicant’s employment is a substantial factor to the injury sustained from the fall in
June 2021 (see page 99 of the ARD).
Furthermore, in his first report of 14 September 2021 Associate Professor Miniter agrees that the “incident stepping whilst getting out of a truck could be consistent with a right knee injury” and “the workplace is probably a contributing factor to his current situation” (see page 146 of the Reply).
For these reasons I find that the applicant’s employment with the respondent was a substantial contributing factor to his injury.

Notice

The respondent submits that the applicant did not give notice of an injury on 9 June 2021 in compliance with s 254 (1) and s 261 (1) of the 1998 Act and therefore his claim for compensation should be dismissed.
Section 254 (1) of the 1998 Act requires the applicant to give notice of injury to the employer “as soon as possible” after the injury has happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
Section 261 (1) of the 1998 Act states that compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident has happened.
There are however exceptions to the sections set out above.
Section 261(4) provides that the failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or absence from the state or other reasonable cause.
Section 254 (2) and s 254 (3) similarly provide that the failure to give notice of injury as soon as possible after the injury happened is not a bar to the recovery of compensation if, in the proceedings to recover compensation, it is found that there are special circumstances.
The applicant relies on the special circumstances set out in s 254 (3) (a) and (b) of the 1998 Act and for the reasons set out in s 261(4) of the 1998 Act.
Section 254 (3) (a) excuses the applicant from making his claim as soon as possible after the injury happened if it can be shown that the respondent has not been prejudiced by the failure to give notice or by a defect or inaccuracy in the notice.
Section 254 (3) (b) excuses the applicant from making his claim as soon as possible after the injury happened if the failure to give notice of injury or the defect or inaccuracy in the notice was occasioned by ignorance, mistake or other reasonable cause.
The onus is on the applicant to establish the special circumstances. I shall firstly deal with the applicant’s failure to give notice of injury to his right knee “as soon as possible” after the injury happened.
According to the applicant’s statement of 18 August 2021, the applicant first notified the respondent that he had sustained an injury to his right knee when he reported the injury to his operations manager Mr Neasey by phone on 4 August 2021. According to the statement the applicant advised the respondent that the accident had occurred on
10 June 2021 at 6.30pm at the Caltex service station on the M4 at Eastern Creek where the applicant had taken his mandatory break. The applicant also provided a detailed description of how the injury occurred (see page 17 of the ARD). The respondent submits that this period of 54 days was not “as soon as possible” after the injurious event.
There is however some confusion as to whether the 4 August 2021 was the date that the injury was reported based on several documents I have considered in this matter.
In the incident notification form completed by Mr Neasey, the incident is recorded as having occurred on 1 July 2021 and the date the applicant reported the injury to Mr Neasey is recorded as 1 August 2021 (see page 116 of the reply).
The August date is consistent with the patient information sheet the applicant completed for Dr Stening on 1 August 2021 (see page 120 of the ARD). In that form, the applicant was able to provide a workers compensation claim number. If the applicant had not reported the incident until 4 August 2021, it is unlikely that he would have had a claim number when he completed the patient information sheet for Dr Stening on 1 August 2021. I have no evidence before me as to the exact date the applicant was provided with a claim number by the respondent, however it was on or before 1 August 2021.
Further in the incident notification document, Mr Neasey records that the applicant called him on 3 August 2021 and reported a right knee injury. The applicant also advised
Mr Neasey that he had no recollection or note of what day or date the accident occurred but provided a consistent description of how the injury occurred. In his statement of
18 August 2021, the applicant advised that he was not sure of the date of the injury and if questions arose later, he would have to refer to his paperwork.
In any event, nothing turns on whether the respondent was notified on 1 August 2021,
3 August 2021 or 4 August 2021. In respect of all three of these dates, the respondent states that this was not “as soon as possible after the accident” as prescribed under s 254 (1) of 1998 Act.
The applicant submits that special circumstances exist that excuse the applicant for not making the claim “as soon as possible” after the injurious event.
I accept, for the following reasons, that special circumstances exist that excuse the applicant from the requirements of s 254 (1) of the 1998 Act to have made his claim “as soon as possible” after the injurious event.
Firstly, at the time of the accident the applicant has advised in his statement of
18 August 2021 and his statement of 4 July 2022 and in various histories given to the doctors he has seen in relation to his injury that, at the time of the accident, he did not report the injury as he did not think it would develop the way that it did. He did not think that it was serious. In his statement of 18 August 2021, the applicant states the following:
“55. About 6:30pm I stopped, parked the truck and began my break. I was getting out of the truck. I got my dinner out of my bag and put it on the floor. I got out of the truck as I normally do. I got out onto the first step on my left foot and on the 2nd step with my right foot and slipped off and missed the last step. My left hand slipped off the handrail. I fell backwards onto the concrete surface on my right and onto my lower back. I fell about half a metre to one metre”.
“56. I felt pain in my tailbone. It was sore. I cannot recall having any other pain. I did not tear my trousers and I had no swelling in my right knee. I got up and thought about what happened. I walked to the truck stop and heated up my dinner. I ate my dinner and then walked back to the truck. I cannot recall if I had any problems with my right knee as there was nothing of significance. I did not inform despatch. If I really had hurt myself, I would have reported it straight away.”
This history given by the applicant of not experiencing any pain in his right knee at the time of the fall is repeated in the report of Dr Endrey-Walder dated 17 July 2023 (see page 52 of the ARD). Dr Endrey-Walder records the following:
“He was quite clear in explaining that the initial, quite severe lower back pain had taken precedent over the injury to the right knee which became rather problematic within a week or so after the accident. The back pain soon settled”.
“He did report the right knee problem to his GP 20 days after work accident and he was referred for X-ray and Ultrasound but more importantly, an MRI scan of the knee which highlighted a flap tear of the medial meniscus…”
The MRI scan was undertaken on 13 July 2021. By that time the applicant had started to develop symptoms in his right knee however he was still working and as such he did not obtain a certificate of capacity from his GP Dr Brdarevic when he saw him on 29 June 2021. This was the first time after the accident that the applicant had sought medical advice in respect of his right knee. At the applicant’s second attendance with Dr Brdarevic on
14 July 2021, the applicant was still working. Dr Brdarevic discussed the MRI scan findings with him and referred him to Dr Stening, an orthopaedic surgeon. By 30 July 2021, the pain in the applicant’s right knee had reached a point that he was unable to continue working. At his last shift on 30 July 2021, the applicant had to finish work early due to pain in his right knee. This is recorded in the driver’s daily run sheet for 30 July 2021 (see page 115 of the Reply). The applicant has been off work since 30 July 2021 and notified the respondent of his injury very soon thereafter. The applicant saw Dr Stening on 2 August 2021 and
Dr Stening advised the applicant that he required surgery in the form of an arthroscope. The surgery was booked in for 25 August 2021. The applicant obtained a certificate of capacity from Dr Brdarevic on 6 August 2021. It is unclear from Dr Brdarevic’s clinical notes (see pages to of the ARD) or report of 5 May 2022 (see page 98 of the ARD), exactly when the applicant advised Dr Brdarevic of the circumstances of his injury which I have previously addressed. In this respect I note the comments of Basten JA in the case of Mason v Demasi [2009] NSWCA 227 in relation to the caution that should be taken when there is an inconsistency between the party’s evidence and the medical history in the clinical notes of treating doctors. I also note in his report dated 17 July 2023, Dr Endrey-Walder took the following history from the applicant, “He did not report the right knee pain problem to his GP” until “2o days after the work accident” (see page 52 of the ARD).
In my opinion, the applicant has provided notice of his injury as soon as possible after the date of the injury after he commenced to experience symptoms in his right knee and it was necessary for him to take time off work. Prior to experiencing symptoms in his right knee and taking time off from work, the applicant formed the view that he had nothing to report. It was not until he had the MRI scan on 13 July 2021 and had discussed the findings of the MRI scan with Dr Brdarevic on 14 July 2021 that the applicant became aware of the severity of his injury.
In the statement of Mr Neasey dated 30 August 2021 (page 12 of the Reply), Mr Neasey details the additional investigations undertaken by the respondent when investigating the applicants claim after the GPS data for the 10 June 2021 did not support the applicant's report that he stopped for a break at the Caltex service station M4 eastern Creek at 6:30pm on that day.
Mr Neasy took the additional measures checking the records for the six weeks prior to the date the applicant contacted him to report his injury on either the 1, 2 or 4 August 2021. I note the six week period Mr Neasey refers to, postdates 9 or 10 June 2021.
It is therefore my finding that the respondent was not prejudiced by the change of the date of the injury from 10 June 2021 to 9 June 2021. The respondent has demonstrated that they have the ability to check records and data in relation to employee’s movements during shifts. They also had available the Driver’s Daily runsheets and the Drivers Declarations.
I do not believe the respondent have been prejudiced by any delay by the applicant in giving notice of injury. The respondent was aware that the applicant was unsure of the date of the accident. The respondent has been able to produce the driver’s daily run sheet for
10 June 2021 and the GPS route for the 10 June 2021. I have no evidence before me to suggest that the records for 9 June 2021 were not similarly available to the respondent after the applicant had provided the respondent with the correct date of injury. The applicant himself was able to produce a copy of his driver’s daily run sheet for 9 June 2021 which he annexed to his statement of 4 July 2022 (see page 9 of the ARD). As I have previously pointed out, this document confirms the applicant took his break at Eastern Creek on
9 June 2021 between 6.45pm and 7.15pm.
I find that the applicant failed to give notice of his injury due to mistake and ignorance. When the applicant’s right knee became symptomatic and it was necessary for him to take time off work, he reported the accident very soon thereafter. It would appear that he did not know that it was necessary to give notice of his injury to the respondent as soon as possible after the date of the injurious event. His failure to give notice of injury to the respondent was based on ignorance and mistake. The applicant was a truck driver. He would not have been expected to know or understand the implication of not reporting the accident “as soon as possible” after it occurred. At the time of the accident, he did not require medical intervention nor did he require time off work. The applicant did report his injury as soon as possible after his symptoms deteriorated and he had to stop working and seek medical assistance.
The respondent has provided copies of its Health and Safety Policy (see page 94 of the Reply) and the Workplace Rehabilitation Policy (see page 95 of the Reply). These policies do not set out the legislative requirements of s 254 or s 261 of the 1998 Act in relation to notifying the respondent of an injury or claim for compensation. I have considered the statements of Mr Neasey dated 18 August 21 (see page 12 of the Reply) and Mr Southern dated 19 August 2021 (see page 1 of the Reply). Both Mr Neasey and Mr Southern confirm the respondent has a policy in relation to the reporting of injuries however the respondent has not provided me with a copy of that policy. Mr Southern states the policy is that the injury must be reported immediately, not two to three months later. Mr Southern also questions how the applicant’s injury could be a legitimate injury when an actual date of injury was not provided and the claimant did not report his right knee immediately. In respect of this evidence, it is the applicant’s evidence, which I accept, that at the time of the injury on
9 June 2021, the applicant did not think he had injured his right knee. He did not need to take time off work. He reported the right knee injury soon after he commenced to feel pain in his right knee.
Furthermore, the respondent submits that the applicant did not report the correct date of injury within six months of the accident as required by s 261 (1) of the 1998 Act. The accident occurred on 9 June 2021 and therefore the notice of injury should have been given to the respondent by 9 December 2021. The applicant had advised the respondent that the date of the injury was 10 June 2021 in early August 2021 which was within the six month period prescribed by s 261 (1) of the 1998 Act.
On the documents before me, the first time the respondent became aware that the accident occurred on 9 June 2021 was when the applicant’s former solicitors sent a copy of the report of Dr Bodel dated 9 November 2021 to the respondent seeking a review of the s 78 Notice dated 1 February 2022 (see page 40 of the Reply). In the letter to the applicant from the respondent dated 1 February 2022, the respondent confirms that it received the request for a review from the applicant’s former solicitor and the report from Dr Bodel on
19 January 2022. The report from Dr Bodel recorded the date of injury as 9 June 2021 and the time of the injury as 6.45pm. The correct date of injury was therefore reported 41 days after the six-month period had elapsed as required under s 261 (1) of the 1998 Act.

The applicant also confirmed the date of injury of 9 June 2021 in his statement dated
7 April 2022 (see page 5 of the ARD).
In the statement of 7 April 2022, the applicant provides an explanation as to why he initially provided the incorrect date of injury. In his first statement of 18 August 2021, the applicant advised that he would have to check his documents and records if questions were raised. In his statement of 7 April 2022, the applicant confirms that he had reviewed his records and noted that the accident occurred on 9 June 2021 rather than 10 June 2021. The applicant annexed to his statement of 7 April 2022 a copy of the daily run sheet for the 9 June 2021 confirming that he had a break at Eastern Creek between 6.45pm and 7.15pm. With this information, the applicant was able to identify the correct date of injury albeit one day before the date he had advised the respondent was the date of injury.
The applicant was mistaken as to the correct date of his injury when he reported it to
Mr Neasey by phone and when he provided his statement dated 18 August 2021 to the private investigator engaged by the respondent. The applicant advised the operations manager, Mr Neasey, that he was not sure of the date of his injury. As I have outlined above, the applicant did make a claim for compensation in early August 2021 by providing his employer with a certificate of capacity and completing a workers compensation claim form. This was done within two months of the date of the accident. Unfortunately, due to a mistake, he reported the incorrect date of injury. When this issue was raised by the respondent, the applicant examined his records and in particular the Driver’s Daily runsheet for 9 June 2021 and he was able to identify the correct date of injury.
In the circumstances I am satisfied that the applicant has established a reasonable cause for his delay in making his claim for compensation within six months noting the correct date of injury, pursuant to s 261 (4) of the 1998 Act and that his failure to make a claim for compensation based on the correct date of injury within the prescribed six month period was occasioned by mistake.
I note in this respect the date that the applicant initially advised the respondent was only one day after the correct date of injury.

Medical treatment expenses

In relation to the applicant's claim for past medical expenses including physiotherapy, medication and travel to medical providers, the respondent made no submissions in relation to medication and travel to medical providers. In relation to past physiotherapy expenses, the respondent relied on the supplementary report of Associate Professor Miniter dated
26 February 2024 (see page 162 of the Reply). In that report Associate Professor Miniter opined that “This man has had more than sufficient instruction in relation to physiotherapy… and he has had more than adequate physiotherapy to date”.
In relation to the claim for future medical expenses, the respondent concedes that Associate Professor Miniter believes that the right total knee replacement is necessary and is in agreement with the applicant’s treating orthopaedic surgeon Dr Stening. Associate Professor Miniter further confirms that the right total knee replacement is necessary as a result of the failure of the primary partial knee replacement which was undertaken by Dr Stening on
1 November 2022 and paid for by the respondent without an admission of liability.
However, the respondent submits that in Associate Professor Miniter’s opinion, he does not believe the right total knee replacement is the result of a workplace injury. Associate Professor Miniter opines that the applicant has age related and weight related osteoarthritis disease in the right knee which necessitates the right total knee replacement.
The respondent also pointed out that the issue of infection in the knee may be the cause of the failure of the initial half knee replacement and this has not been investigated. This was referred to on page three of the report prepared by Associate Professor Miniter dated
21 June 2023 (see page 156 of the Reply). Associate Professor Miniter suggests investigations should be carried out to exclude infection and therefore the surgery is not reasonable or necessary at this time.
In relation to the claim for past medical expenses, the applicant relies on the reports of
Dr Endrey-Walder dated 17 July 2023 and 21 August 2023 (see pages 48 and 56 of the ARD).
In his report of 17 July 2023, Dr Endrey-Walder takes a history from the applicant that after the surgery on 1 November 2022, the applicant had 10 sessions of physiotherapy which were paid for by the respondent beyond which the respondent’s support was withdrawn. The applicant continued to have twice weekly physiotherapy under the direction of his treating surgeon Dr Stening. The applicant also advises that he takes Targin and Panadol osteo for pain. Dr Endrey-Walder opines one would strongly recommend support for ongoing physio (see page 54 of the ARD). Further support for physiotherapy is detailed by Dr Endrey-Walder in his report dated 21 August 2023 (see page 56 of the ARD).
Dr Endrey-Walder does not specifically address medication or travel to medical providers however I have noted the applicant’s statements and the information recorded by the doctors that the applicant continued to experience pain post-surgery. In particular, see paragraphs 16 and 17 of the applicant’s statement dated 13 November 2023 (see page 2 of the ARD). The applicant also continued to see his general practitioner and specialist post-surgery.
The applicant points out that as the first surgical procedure was carried out on
1 November 2022, the applicant is entitled to claim for s 60 medical expenses for a period of two years after the date of the claim. I note in this respect all of the receipts for physiotherapy and medication and the dates for travel that are detailed in the ARD have all been incurred within this period. Furthermore, the past treatment, medication and travel that the applicant is claiming are expenses ancillary to the first surgical procedure that the respondent agreed to pay for on a voluntary basis.
In relation to the claim for past medical expenses, I accept the applicant’s submissions that the physiotherapy, travel expenses and medication costs are reasonably necessary and referable to the injury sustained by the applicant on 9 June 2021. I have considered the reports of Dr Endrey-Walder and Dr Stening. I prefer the opinions expressed by
Dr Endrey-Walder and Dr Stening in relation to the past medical expenses claimed. In relation to the submissions put forward by the respondent in relation to the past physiotherapy expenses, I reject Associate Professor Miniter's opinion expressed in his report of 26 February 2024. Associate Professor Miniter’s opinion appears to address future physiotherapy rather than post-surgery physiotherapy that has been recommended by the applicant’s treating surgeon. I accept that the applicant’s treating surgeon was in a better position to advise the applicant relation to post-surgery physiotherapy which the applicant is claiming. The report from Associate Professor Miniter post-dates the last date that the applicant had physiotherapy after the initial surgery. The report is dated 26 February 2024 (see page 162 of the Reply) and the last physiotherapy attendance that is being claimed was on 27 April 2023 (see page 237 of the ARD).
Furthermore, Dr Stening in his report of 14 December 2022 states,
“Bryan was reviewed 6 weeks post right medial unicompartmental knee replacement. He has had limited post operative physiotherapy partly because according to him, the insurer has declined further sessions…Bryan requires physiotherapy to improve range of motion and quadriceps strength, without this his ultimate outcome could be compromised.” (see page 188 of the ARD).
Acting on this advice, the applicant continued to have physiotherapy up until
27 April 2023.
In relation to the claim for the right total knee replacement I note agreement in the medical evidence in this matter that the right total knee replacement is reasonable and necessary. The medical evidence is also in agreement that the tibial baseplate for the partial knee replacement which was performed on 1 November 2022 and paid for by the respondent on a without admission of liability basis has failed. The respondent points out that Associate Professor Miniter believes the applicant should be investigated for infection prior to proceeding with a right total knee replacement and therefore at this time, the right total knee replacement is not reasonable or necessary until these investigations have been carried out. In this respect, I note the report of Dr Stening dated 19 June 2023 (see page 110 of the ARD). In that report Dr Stening confirms the applicant has undergone blood tests and nothing is indicative of infection.
As a result of my findings in respect of injury and notice of injury I find that the right total knee replacement is reasonably necessary and resulting from the applicant's injury on
9 June 2021. I also find that the past medical expenses claimed by the applicant in the sum of $3,640.07 are reasonable and necessary and resulting from the applicant’s injury on
9 June 2021.

[2024] NSWPIC 166

4 April 2024