Portelli v The Hills Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Portelli v The Hills Shire Council [2023] NSWPIC 46
APPLICANT:	Charles Portelli
RESPONDENT:	The Hills Shire Council
senior Member:	Kerry Haddock
DATE OF DECISION:	8 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for partial meniscectomy of the left knee; injury to left knee disputed; reasonable necessity of proposed treatment conceded; previous history of injuries to, and surgical treatment of, left knee; clinical records of general practitioner did not record left knee symptoms until seven months after injury; physiotherapist recorded symptoms two weeks after injury; applicant has meniscal tear; Held – the applicant sustained injury to his left knee on 31 January 2020 when a high pressure water hose exploded, forcing him backwards; respondent to pay the costs of partial meniscectomy of left knee, by arthroscopic means, for traumatic meniscus tear pursuant to section 60(5).
determinations made:	1. The respondent is to pay, pursuant to s 60(5) of the Workers Compensation Act 1987 the costs of partial meniscectomy of the left knee, by arthroscopic means, for traumatic meniscus tear.

STATEMENT OF REASONS

BACKGROUND

The applicant, Charles Portelli (Mr Portelli) was employed by the respondent, The Hills Shire Council, as an auto electrician.
On 31 January 2020, Mr Portelli was using a high pressure hose that exploded, forcing him backwards. He sustained injury to his shoulders, neck and back. He also claims to have injured his left knee.
The respondent’s insurer, StateCover Mutual Limited (StateCover) accepted liability for injury to the applicant’s shoulders, neck and back.
On 10 June 2021, StateCover issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability for his cervical spine, lumbar spine, right/left shoulder, and left knee, “due to your injury no longer being work related to the workplace incident sustained on 31 January 2020” [sic].
StateCover disputed that the applicant had sustained injury, including a “disease injury” to his left knee. It also disputed that he had any incapacity for work or required any medical or related treatment in relation to his cervical spine, lumbar spine, right/left shoulders, and left knee as a result of a compensable injury on 31 January 2020.
StateCover did not dispute that the applicant may have symptoms in his cervical spine, lumbar spine, right/left shoulders, and left knee, but disputed that they continued to be related to his employment with the respondent, and the incident on 31 January 2020.
On 9 September 2021, StateCover issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for payment of weekly compensation or other benefits, as a result of the injury on 31 January 2020.
On 1 April 2022, StateCover issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for injury to his right knee. This was apparently in response to a request for approval of surgery that contained an erroneous reference to his right knee, rather than his left.
On 25 May 2022, StateCover issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed that he had sustained injury, including a “disease” injury, to his left knee on 31 January 2020. It disputed that any medical or related treatment for his left knee was reasonably necessary as a result of a compensable injury, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
By letter dated 3 August 2022, Mr Portelli’s solicitors requested that StateCover review its decision to dispute liability.
On 16 August 2022, StateCover advised that, having reviewed its decision, it maintained that the applicant had not sustained injury, including a “disease injury”, to either his right or left knee. It further maintained that he had recovered from the effects of any injury to his cervical spine, lumbar spine, right and/or left shoulders.
The applicant lodged an Application to Resolve a Dispute (the Application) on 8 November 2022. He claimed that on 31 January 2020, he sustained injury to his right shoulder, neck, back, and left knee, following the explosion of a high pressure hose, which caused him to fall backwards and twist his body.
The applicant claimed weekly benefits compensation from 31 January 2020 to date and continuing. He also claimed the sum of $3,120 pursuant to s 60 of the 1987 Act, for the cost of partial meniscectomy of his left knee, by arthroscopic means, for traumatic meniscus tear.
The respondent lodged its Reply on 1 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained injury to his left knee on 31 January 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation/arbitration hearing on 31 January 2022. Mr Tanner of counsel, instructed by Ms Pearce, appeared for the applicant, who was present. Mr Gaitanis of counsel, instructed by Ms Ralph, appeared for the respondent. Mr Payne of StateCover, and Mr Reid and Ms Boustani of the respondent, also attended.
The parties were able to agree on consent orders with respect to the claim for weekly benefits, and orders were accordingly entered.
The respondent confirmed that it concedes the necessity for the proposed treatment. It disputes that the applicant sustained injury to his left knee on 31 January 2020.
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)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 22 December 2022 and attachments filed by the applicant, and
(d)    respondent’s Wage Schedule dated 11 January 2023.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Charles Portelli

The applicant’s first statement is dated 2 September 2022.
On 31 January 2020, he was performing some works to a high pressure water gurney, with his right arm stretched around part of the equipment and between a steel framework. The equipment was affixed to the rear of the plumber’s truck, and his arm could not be easily extracted.
The hose, which must have been deteriorated, broke, causing high pressure water to strike him in the face and into his eyes. The force of the hose was incredibly powerful, and he was only able to free himself with the help of his colleague, who turned off the machine. There is some suggestion that he was knocked out from the impact.
His body was being pushed and jerked in many different directions, and he recalled a jarring sensation to his right arm, as it was stuck. There was also a jarring sensation in his neck, extending into his chest and lower back. A few weeks later he began to experience pain in his left knee.
The complaints with his eyes settled within a few days, after some material was removed. For weeks after the injury, his body was sore all over, due to the force and impact from the hose. There was soreness in his chest. The symptoms in his shoulder, neck and back have not settled. The symptoms in his knee did not receive much attention. However, they were the subject of complaints, and he has been receiving treatment for his knee for quite some time.
On the afternoon of the incident, after his body had cooled down from a shower, it felt as if he had been hit by a truck.
He has been under the care of Dr Abraszko for his neck and back.
The symptoms in his left knee have not settled down. If anything, they have worsened. His sleep is disturbed, and he finds it very hard to get comfortable. This is most obvious when he rolls over. In particular, he has trouble sleeping on his right shoulder, due to the pain.
His knee can be quite sore at times, and he takes Panadol. When his knee is sore, he often walks with a limp, and has been told he walks like a duck. He has discussed this with Dr Popoff, and in particular, a sensation that his knee feels unstable, like it will give way. He would describe it as being as though the knee would fall “backwards”. He never had symptoms like this before the injury.
If he sits or is in a static position for extended periods, his knee can lock. He tries to avoid being too active because this will increase the symptoms.
His knee was otherwise without these symptoms before the injury, and he is unable to attribute them to any cause other than the work injury.
Dr Popoff made an error in referring to his right knee and has sent an amended request for surgery to the left knee.
Mr Portelli has made a supplementary statement dated 31 October 2022. It is directed to his claim for weekly benefits, which is no longer in dispute.

Medical evidence

Horsley Park Medical Centre – general practitioners

The applicant has mainly been treated by Dr Beryl Pham.
On 17 August 2009, Dr Pham recorded that the applicant was using a ride on lawn mower that fell into a ditch. He was caught underneath the lawn mower. The injuries recorded included “bilat knee”. The applicant had “bilat knee pain”.
The applicant consulted Dr Pham on 28 January 2010, regarding an injury to his right shoulder. She recorded that he had hurt himself when he fell off the lawnmower, “but completely recovered since injury.”
On 26 March 2010, Dr Pham recorded that a tyre had exploded at work. The applicant spun around, “turned lat R v quickly – felt snap”. He went to move to the right and felt his knee twisted. He had burning in the medial knee. A similar history was recorded on 9 April 2010, although Dr Pham also recorded neck discomfort.
On 9 April 2020, Dr Pham recorded a similar history to that she recorded on 26 March 2010. The applicant still had pain in the medial knee. He was able to walk and work a full day.
On 11 October 2010, Dr Pham recorded that the applicant was still having discomfort in his right medial knee, since the initial injury. He had been preoccupied during consultations with his neck.
On 10 December 2010, Dr Pham recorded that EP (exercise physiology) had helped with the knee.
On 15 March 2011, Dr Pham recorded that the applicant felt his knee pain had not resolved. He had been performing full duties “almost since beginning of case”. He would like a left knee X-ray, and to see another neurosurgeon, as he still had pain. A letter to Dr Andrew Kam was printed.
Dr Pham recorded on 28 March 2011 that the applicant would like a CT “L knee”.
On 31 May 2011, Dr Pham recorded that the applicant had on/off persistent left knee pain. He was to consider an independent opinion from Dr Kam.
On 12 March 2012, Dr Pham recorded that the applicant had been to a neck surgeon “via solicitor”, who had recommended MRI and orthopaedic review for his knee. A referral to Dr Popoff was provided.
On 6 June 2012, Dr Pham noted a letter from Dr Popoff, “has consent for arthroscopy”.
Dr Pham recorded on 26 April 2013 that the applicant had been to Dr Popoff and “has been cleared to work – fit for unrestricted duties.”
On 5 September 2014, Dr Pham recorded that the applicant had had pain in his right knee “1/12” (one month), with “nil recall of trauma/aggravating factors”. There was sharp pain within the joint. It was bad through the day. A referral to Dr Popoff was provided.
Dr Pham recorded on 12 September 2014 that the applicant had had X-ray and MRI of his right knee. He had an appointment with Dr Popoff in two weeks.
On 28 November 2016, Dr Pham recorded that at work about 10 days ago, the applicant was stepping off the back of a “ute” onto a step stool, which slipped from under him. There was hyperextension of his left knee and hip. They would “watch and wait” regarding his knee. If there was ongoing slipping, pain and locking, “for MRI left knee ?meniscal tear”.
On 3 February 2020, Dr Amy Nguyen recorded that on Friday last week at work, there was an incident with a pressure hose bursting in the applicant’s face. He did not recall what position his body went in. He was sent to SpecSavers and debris was removed. Since the afternoon of the incident, he noted lower back pain on the left side, and bilateral shoulder pains.
Dr Nguyen noted the affected joints as the right shoulder, left shoulder, cervical spine, and lumbar spine.
On 10 February 2020, Dr Nguyen recorded that the applicant’s eye irritation had improved. He had ongoing lower back and upper limb pains. His right arm was more painful than his left. The affected joints were noted as the right shoulder, right elbow, right wrist, left shoulder, left elbow, and left wrist.
Dr Eva Morris recorded on 9 March 2020 that physiotherapy was ongoing. The applicant still had a painful limited arc to the right shoulder and thoracic spine pain. Dr Morris noted “?Rotator cuff injury? Disc pathology in midback”.
Dr Nguyen recorded on 6 April 2020 that the applicant had ongoing shoulder pain and reduced range of movement. He was to undergo ultrasound of the left shoulder and physiotherapy twice weekly.
On 14 April 2020, Dr Nguyen discussed with the applicant the results of the ultrasound. The reason for the visit was recorded as right supraspinatus tendinosis.
On 4 May 2020, Dr Nguyen recorded that the applicant’s neck and shoulder pains were still persistent.
On 27 May 2020, Dr Nguyen recorded that the applicant had mid to low back pain, worsening over the last few weeks. It had been present since the first day of the work incident. The physiotherapist had been trying to address it.
The applicant complained of lower back pain on 1 June 2020. His shoulder and neck pain were improving with physiotherapy.
Dr Nguyen discussed with the applicant the results of the CT scan of his lumbosacral spine on 5 June 2020. The reason for the visit was recorded as bilateral lumbar radiculopathy. A referral to Dr Renate Abraszko was provided.
On 12 June 2020, Dr Nguyen recorded that the applicant’s lower back, hips, and right lateral thigh pain was ongoing.
Dr Nguyen recorded on 20 June 2020 that the applicant’s lumbar back pain had improved slightly. He had been seen by Dr Abraszko.
On 29 June 2020, Dr Nguyen recorded that the applicant had symptoms in his left shoulder; his right shoulder strength and range of motion had improved a lot; and his lower back pain was ongoing.
Dr Nguyen recorded on 20 July 2020 that the applicant’s bone scan confirmed multiple sites of arthritis in the spine. MRI of his lumbar spine showed mild disc protrusion at L4/5.
On 3 August 2020, Dr Pham recorded that the applicant stated that since the injury he had had ongoing medial infrapatellar knee pain. “Min pain along joint margin – recent bone scan – OA (osteoarthritic) changes bilat knees. Can sometimes give way when walks.” The applicant was to have an ultrasound of his left knee “?bursitis”.
The certificate of capacity (COC) issued by Dr Pham on 3 August 2020 recorded that “Since injury – pt stated has pain in medial L knee – infrapatella, nil along joint margin – for knee u/s.”
On 4 September 2020, Dr Pham recorded that the applicant had had an independent medical examination with Dr Sheehy and had mentioned his knee pain. He advised her that he did inform the physiotherapist about it in March. She reiterated that the focus was on function.
Dr Pham recorded on 23 September 2020 “letter for insurance” regarding the applicant’s left knee pain.
It is assumed that the “letter for insurance” is that dated 23 September 2020 and addressed “To whom it may concern”.
Dr Pham reported that Dr Nguyen was the applicant’s initial nominated treating doctor. Dr Pham did not become involved until 3 August 2020. In reviewing Dr Nguyen’s notes, she did not see mention of Mr Portelli’s left knee pain. Based on their notes, his first documented complaint of knee pain was on 3 August 2020.
Dr Pham opined that it was possible for the applicant to have sustained an aggravation of his degenerative arthritis from the jerking action that would be likely to have resulted from a sudden jolt which occurred at work. The applicant did have a partial left medial meniscectomy on 21 June 2012 but had been free of left knee pain for a few years prior to 2020.
Dr Pham’s initial management would be an ultrasound to exclude bursitis, followed by an MRI if needed, and physiotherapy. She has answered a question “no”, but as the request for the report is not in evidence, this is of no assistance.
On 25 September 2020, Dr Pham noted that an independent medical examiner (IME) had noted aggravation of degenerative changes. They awaited ultrasound of the knee and consent for a pain specialist.
On 26 October 2020, Dr Pham recorded “medial meniscus heterogenous”. She suggested MRI. The applicant was “for physio for medial knee in initial instance”.
On 23 April 2021, it was recorded (it is assumed by Dr Pham) that the applicant still had a sore shoulder, knee, neck, and lower back. He was not having physiotherapy, as “nil consent”. He had been to IME Dr Powell.
On 21 May 2021, the applicant stated he still felt the same. He had a sore, stiff left knee, and neck, shoulder, and lower back pain.
On 21 June 2021, the applicant advised that his WorkCover claim had been closed, as his back and shoulder injuries were pre-existing. The doctor had not received information about his independent medical examination. The applicant was advised to maintain his restrictions, and strongly advised to resume physiotherapy under a care plan and his health insurance.
The clinical notes record a history of meniscectomy by Dr Popoff in 2012, and bilateral partial meniscectomies by Dr Popoff in 2014. The condition was recorded as “knee pain” on 23 June 2012 and on 9 October 2014.

Foti Physiotherapy – physiotherapist

Mr Joseph Foti’s handwritten records are somewhat difficult to read, partly due to poor copying. However, on 15 February 2020, he recorded a history of the injury, and that after the incident (one to two hours) the applicant began feeling left knee pains. It appears that Mr Foti has recorded that this was from twisting from the impact of the pipe [illegible]. He has recorded his findings about the applicant’s left knee.
Mr Foti reported to Dr Nguyen on 17 February 2020. He referred to a work related incident resulting in a cervical/thoracic/lumbar spine and right shoulder injury. There is no reference to the applicant’s left knee.
The applicant had first attended physiotherapy on 15 February 2020 and would be attending twice a week.
On 2 March 2020, Mr Foti recorded that the applicant continued to experience left knee pain. He again recorded his findings.
Mr Foti recorded on 9 March 2020 that the applicant’s knee had been particularly sore
(5-6/10) for the past week.
Mr Foti again reported to Dr Nguyen on 6 April 2020. The report refers to the applicant’s spinal and right shoulder injuries, but not to injury to his left knee.
Mr Foti reported to Dr Pham on 2 February 2021.
Mr Foti thanked Dr Pham for reviewing the applicant following a work related incident resulting in a cervical/thoracic/lumbar spine, left knee, and right shoulder injury.
Mr Portelli had been attending physiotherapy fortnightly and was compliant, but treatment had been stopped after an independent review by the insurance company.

Dr Robin Mitchell – occupational physician

Dr Mitchell was qualified by the respondent and reported on 29 April 2020. He did not examine the applicant but carried out a file review and discussed the matter with Dr Nguyen.
Dr Mitchell has recorded a history that the applicant developed pain in his cervical, thoracic, and lumbar back when he moved quickly to prevent further injury to his right eye when a high-pressure hose disconnected. He also developed pain in both shoulders at the time.
Dr Nguyen advised Dr Mitchell that the applicant continued to make slow progress. Dr Mitchell diagnosed soft tissue injuries to each shoulder and lower back, despite having previously noted pain also in the cervical and thoracic spines.

Dr Renate Abraszko – neurosurgeon and spinal surgeon

Dr Abraszko reported to Dr Nguyen on 18 June 2020.
Dr Abraszko recorded a history of the injury, and that the applicant’s only complaints “now” were of back pain.

Milazzo Physical Therapy Pty Ltd – physiotherapist

Mr Milazzo was qualified by the respondent to review the applicant’s physiotherapy treatment. He reported first on 23 June 2020.
StateCover had advised Mr Milazzo that the applicant’s injuries were to the low back, neck, right shoulder, and eye.
Mr Milazzo referred to the applicant’s COC and a letter from Dr Nguyen referring him for a CT scan of his lumbosacral spine.
Mr Foti advised that the applicant had been having twice weekly treatment to his right shoulder and low back. His right shoulder had improved, but his back problem was not progressing as expected. He had been referred to a specialist.
Mr Milazzo supported the continuation of physiotherapy at that stage but reducing to once per week.
On 14 January 2021, Mr Milazzo reported that the applicant had received an estimated 64 physiotherapy sessions. Mr Foti had not responded to StateCover’s request on 19 November 2020 to provide an update on treatment. Mr Milazzo noted the contents of Dr Pham’s report dated 23 September 2020.
Mr Milazzo opined that the applicant had likely reached maximal benefit from the physical rehabilitation.

Dr John Sheehy – neurosurgeon

Dr Sheehy was qualified by the respondent and reported on 4 September 2020.
Dr Sheehy recorded that the applicant had turned on a high pressure gurney, which was operating at 4,000 PSI, when the hose broke, and high pressure water pushed him back and entered both eyes. He had a twisting injury of his back and a burning sensation in his low back and right shoulder. Within a few days, he developed sharp pain affecting the anterior chest wall, and there was a deterioration in the shoulder pain.
Dr Sheehy diagnosed a soft tissue injury of the cervical spine and a recovered injury to both eyes. There had been an exacerbation of an underlying degenerative condition of the lumbar spine. The diagnoses were consistent with the injury.
The applicant had reported during the consultation that he developed pain in his left knee in March 2020. Dr Sheehy opined that, in such circumstances, the workplace accident on 31 January 2020 had not contributed to the condition.

Dr Rajib Dutta – pain management specialist

Dr Dutta reported to Dr Pham on 8 December 2020.
Dr Dutta recorded a history that the applicant was knocked down, and possibly lost consciousness, when there was an explosion in a pressure hose. He described lower back pain, and pain affecting his left knee.

Dr Richard Powell – orthopaedic surgeon

Dr Powell was qualified by the respondent and reported on 4 June 2021.
Dr Powell recorded a history that the applicant was operating a high-pressure gurney when the hose “blew” and discharged water into his face. He reflexively pulled away and twisted to protect himself, though he did not fall. His initial concern was his eyes, although he was also aware of the immediate onset of pain in his lower back. Later that day, he developed pain in the neck, radiating to both shoulders, more marked on the left.
The applicant reported ongoing symptoms involving the cervical spine, shoulders, and lower back.
Dr Powell recorded a history of the injury to the applicant’s left knee when he twisted to avoid an exploding tyre in 2010.
Dr Powell opined that the applicant had sustained musculoligamentous injuries of the cervical and lumbar spines with aggravation of underlying spondylytic changes when he quickly twisted and withdrew from the machine when the hose exploded. Symptoms had improved, though he continued to complain of neck and back pain. The symptoms were more likely to reflect the pre-existing multilevel degenerative pathology than the aggravation sustained in the manner described.
Dr Powell further opined that the available evidence did not support the applicant having sustained a specific injury to his left knee on 31 January 2020.

Dr Geoff Morgans – general practitioner

Dr Morgans’ report is undated, but refers to a review of the applicant on 21 October 2021. The report is addressed to the respondent, and it appears that its purpose was to assess Mr Portelli’s fitness for work.
Relevantly, Dr Morgans recorded that the hose exploded, forcing water immediately between the applicant’s eyes at high pressure. He was pushed backwards, and the force of the water caused him to temporarily black out. He didn’t fall, as he said his right arm was wrapped around the machine. He was forced backwards and to the left. After the water was stopped, he felt immediate lower back pain and eye irritation.
When the applicant attended Dr Pham’s surgery, he was aware of neck, right shoulder, and lower back pain. Some five weeks after the injury, he became aware of some left knee pain. Whilst he could walk, at different distances he experienced sharp pains in the knee. The distance varied but could be as short as a few metres.
The applicant’s current symptoms included knee pain. His treatment consisted of medication. He had had physiotherapy for 10 months, ending before lockdown, but hoped to start again in the next week.
Dr Morgans noted a history of a back injury in about 1990, when the applicant was working for Franklins. He did not have any time off but was on light duties for some six months.
Dr Morgans opined that the applicant demonstrated multiple joint pains, consistent with a form of arthritis, which could possibly be osteoarthritis or inflammatory arthritis.

Associate Professor Nigel Hope – orthopaedic surgeon

A/Prof Hope was qualified by the applicant and reported first on 22 November 2021.
A/Prof Hope recorded a history that a high pressure water cleaner (4,000 to 6,000 PSI) was being started. The applicant was reaching behind the water cleaner motor to start it. His right arm was wedged behind the motor.
The high pressure hose exploded, striking the applicant’s head, resulting in concussion. His right arm was locked behind the cleaner, with the hose forcing his body back via the head and neck. This resulted in right upper limb axial traction injury to the shoulder; a cervical whiplash type injury; a lumbar torsional injury; and a left knee torsional injury.
A/Prof Hope stated that 100 PSI is in a truck tyre. Therefore, the high pressure cleaner exploded with a force of 100 truck tyres, “an extremely high pressure explosion.”
A/Prof Hope recorded that, prior to 31 January 2020, all body parts were symptom free.
On examination of the applicant’s left knee, A/Prof Hope noted normal alignment, no lower limb muscle wasting, a small effusion, medial meniscal tenderness, and a positive torsional stress test.
A/Prof Hope diagnosed cervical whiplash associated disorder grade 2; right shoulder impingement; lumbar permanent aggravation of spondylosis; and left knee medial meniscal tear. Right shoulder arthroscopy and left knee arthroscopy were required due to the work related injury.
A/Prof Hope opined that the high pressure hose explosion caused knee pain. This resulted in a fall backwards, twisting the left knee whilst the applicant was unconscious after having been struck by the hose.
On 22 April 2022. A/Prof Hope opined that the applicant sustained a clearly described torsional (twisting) left knee injury when falling backward after being struck by a high pressure hose. His knee injury therefore arose out of or in the course of his employment with the respondent. Employment was a substantial contributing factor because the knee was previously symptom-free, and a well-described work related event caused permanent knee pain. Twisting or torsional injuries are entirely consistent with a meniscal tear.

Dr Ivan Popoff – orthopaedic surgeon

Dr Popoff reported to Dr Pham on 24 February 2022. He had reviewed the applicant that day.
The applicant was having “ongoing problems” with both his knee and his shoulder. They had elected to proceed with left knee arthroscopy, partial medial meniscectomy.
Dr Popoff noted that the applicant was in dispute with the insurer regarding liability. It was his opinion that “this is a work related injury and should be treated as such”. There were no non- workplace related factors.
Dr Popoff concluded that the applicant’s clinical, radiological, and historical presentation were entirely consistent with the work related injury as described and should be treated as such.
On 2 May 2022, Dr Popoff reported to Dr Pham that his initial letter referred to right knee arthroscopy, which was an error.
Dr Popoff reported to the applicant’s solicitors on 6 July 2022 “amended 30 September 2022”.
Dr Popoff reported that he reviewed the applicant, who had been referred by Dr Pham, on 22 October 2021. There is no report of on or about that date, including in Dr Pham’s records.
The applicant had had a work related injury in 2020, when a “Gerni hose exploded essentially in his face”, injuring his neck, right shoulder, and left knee. The onset of pain in his neck and right shoulder was immediate. He started developing pain in his left knee some time later.
The applicant had had some physiotherapy on his knee, and this had been beneficial. An MRI scan arranged by Dr Popoff revealed moderate medial compartment degeneration and a tear of the medial meniscus.
Dr Popoff injected the applicant’s knee with local anaesthetic and corticosteroid and referred him to physiotherapy.
When Dr Popoff reviewed the applicant on 13 January 2022, he was having ongoing problems with his shoulder and knee. Dr Popoff instructed him to continue with non-operative management.
Dr Popoff again reviewed Mr Portelli on 24 February 2022. He was having ongoing problems with his shoulder and knee. He had sharp, intermittent catching pain, medially in his knee, with difficulty walking, twisting, and bending.
Dr Popoff elected to first treat the applicant’s knee. He requested approval for a knee arthroscopy and partial medial meniscectomy. The insurance company had disputed liability.
Dr Popoff opined that both the applicant’s shoulder and knee injury were directly related to the workplace incident and should be treated as such. Both his knee and shoulder were totally asymptomatic prior to the injury and became symptomatic immediately after the injury. Dr Popoff’s opinion was that the applicant’s injuries arose out of a direct result [sic] of his employment with the respondent.
Dr Popoff further opined that employment was a substantial contributing factor to the injury. This is because it happened at work. A hose exploding with a large amount of energy caused the applicant to injure his shoulder, knee, and neck.
Dr Popoff disagreed with Dr Sheehy’s findings that the workplace injury did not contribute to “our client’s” [sic] development of knee pain. The MRI scan findings are consistent with the mechanism described and should be treated as such. The left knee arthroscopy is required as a direct result of the work related injury.
Dr Popoff reported that the applicant had signs and symptoms consistent with a medial meniscal tear that were not present prior to his injury. There were mild to moderate degenerative changes in the knee, but they were not the predominant cause of the symptoms.

SUBMISSIONS

The submissions have been recorded, so I will not reproduce them in detail.

Applicant

The applicant sought an order that the respondent pay for the treatment proposed by Dr Popoff.
The applicant submitted that the issue is not whether the surgery is reasonably necessary, as that is conceded by the respondent, but whether he has suffered an injury to his knee.
The applicant relied on the reports of A/Prof Hope. He referred to the description of the injury recorded. As a matter of common sense, his body was subjected to significant violent force, which would explain all the injuries. It follows that the pathology was caused by the force to which his body and left knee were exposed. There is no evidence of any other factor at about that time that could have caused the meniscal tear.
The applicant submitted that his treating surgeon Dr Popoff, opined that he had a work related injury, and it should be treated as such. There were no non-workplace related factors. He had previously treated the applicant’s left knee. He was aware that there was a delay in the experience of pain but maintained that the explanation for the left knee pain is the injury in 2020.
The applicant submitted that the respondent’s case seems to be that he had prior problems with the left knee, and it considered that in some way his current condition is not related to the injury. The applicant referred to his general practitioner’s (GP) clinical notes. He submitted that he had no cause to seek treatment for his left knee for three years.
The applicant submitted that it seems that Dr Nguyen didn’t appreciate he was suffering knee pain, and that was corrected when Dr Pham assumed responsibility for his treatment. He referred to Dr Pham’s report, in which she said it is possible to have an aggravation from a jerking action. There is no question that he was exposed to a sudden jolt.
Dr Popoff, who is proposing the surgery, is obviously aware of the applicant’s history, and is satisfied that the current need for surgery is related to the injury and not to any pre-existing factor.
The applicant referred to Mr Foti’s records. He submitted that the most reliable inference is that all the entries on page 10 of the records relate to 15 February 2020, and not 29 February 2020. That was also the inference I drew.
The applicant submitted that his evidence of the onset of left knee pain a few weeks later is confirmed by the physiotherapist’s records, which confirmed pain and the need for treatment.
As regards the respondent’s case, the applicant submitted that Dr Sheehy recorded mention of his left knee, but “all we get is two sentences”. Dr Sheehy referred to March 2020 as the date of onset of left knee pain, but the physiotherapist treated him in February 2020. Dr Sheehy did not explain why he believed the left knee was not related to the injury. He did not examine the knee. His evidence cannot be of assistance to the respondent.
The applicant submitted that Dr Powell recorded a history of injury to his left knee in 2010. Dr Powell described the applicant having twisted in 2020 but made no mention of his knee and gave no explanation for excluding it. He was asked about the cervical and lumbar spines, and offered an opinion restricted to the cervical and lumbar spines.
The applicant submitted there were opinions from A/Prof Hope and the treating surgeon that his left knee condition is work related and caused by the episode on 31 January 2020. There is no countervailing medical case from the respondent to contest their opinions. They ignored the fact that he had pain, and their highest case is Dr Sheehy, who recorded the onset of symptoms in March 2020, when it was in February 2020. Dr Sheehy has not provided any explanation why the delayed onset would exclude any causal connection between the pain in his left knee and the significant explosive episode on 31 January 2020.
The applicant submitted that he had satisfied the onus of proof in establishing a causal relationship between the episode on 31 January 2020 and the pathology in his left knee. He sought a finding that he suffered injury to his left knee on 31 January 2020 and an order directing the respondent to pay the costs of surgery proposed by Dr Popoff.
In reply, the applicant submitted that the evidence was logical, probative, and not based on speculation. The respondent’s submissions were based on speculation.
The applicant’s case is not one of aggravation. The pathology is a meniscal tear that needs to be corrected. The respondent submitted that it is not correct that the applicant was asymptomatic, but the applicant submitted that we get to 2016, and he did not require any treatment of his left knee. It can’t be suggested it was symptomatic after 2016. He had a meniscectomy and was benefited and assisted by the surgery.
The applicant submitted I would accept A/Prof Hope’s and Dr Popoff’s evidence that he was asymptomatic. If the respondent wished to make out the case it advanced, we would expect evidence from Drs Powell and Sheehy regarding recurrence or aggravation.
The applicant submitted I would be guided and persuaded by the treating surgeon. He is not required to show the same reasoning as a qualified doctor.

Respondent

The respondent submitted that the onus was on the applicant to satisfy me that he had sustained injury. He had sought to reverse the onus regarding the evidence of Drs Powell and Sheehy. There are significant limitations on the evidence of A/Prof Hope and Dr Popoff.
The respondent submitted that while A/Prof Hope opined that the applicant’s pathology was consistent with twisting, he failed to address the clinical notes, which was an astonishing omission.
The respondent submitted that expert opinion is of limited value if it is based on an inaccurate history: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The respondent also referred to Department of Education and Training v Ireland [2008] NSWWCCPD 134, submitting that I must feel an actual persuasion of the existence of a fact.
The respondent submitted there is a deficiency in the applicant’s evidence regarding aggravation, and it must be an aggravation, given his previous history. A/Prof Hope did not talk about aggravation.
The applicant’s evidence is that he felt pain in his left knee a few weeks later. The respondent submitted that immediate complaint would be expected. Dr Abraszko recorded only complaints about his back. Mr Foti recorded symptoms, but that does not mean there was an aggravation.
The respondent submitted that A/Prof Hope and Dr Popoff did not take into account the applicant’s pre-existing issues. Some intellectual rigour must be applied, or the matter is not being dealt with in a probative and logical manner. The applicant stated that he could only attribute his symptoms to the injury, but there are other reasons. It would have helped had A/Prof Hope and Dr Popoff dealt with this.
The respondent referred to A/Prof Hope’s evidence that the applicant’s knee was previously symptom-free. Dr Popoff recorded both that he became symptomatic immediately after the injury, and that the symptoms came on some time later, which is inconsistent.
The respondent submitted that I would have real difficulties if I were to rely on Dr Popoff and A/Prof Hope in determining the case. Both Drs Sheehy and Powell noted left knee pain in March 2020, and both said it was not related to the injury. Dr Sheehy opined that the workplace incident did not contribute to the applicant’s condition.
The respondent submitted that Dr Popoff operated on both the applicant’s knees. He has constitutional issues. The right knee is not compensable. There is a question of whether a constitutional issue was somehow attributed to the injury.
The respondent referred me to the clinical records. It urged me to accept that, in the absence of anything from A/Prof Hope and Dr Popoff about the previous history, there was no aggravation. Significant force should have caused immediate complaints but did not. I am being asked to speculate because of complaints to the physiotherapist in February 2020 and draw the conclusion that the applicant was injured. It referred to Dr Nguyen’s notes and Dr Pham’s first note in August 2020 and submitted there was no complaint to Dr Abraszko in June 2020.

The respondent finally submitted that there should be an award in its favour.

SUMMARY

Section 4 of the 1987 Act provides:
“‘injury’ –
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a
‘disease injury’, which means--
(i)      a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)     the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
The respondent disputes that the applicant sustained injury to his left knee on 31 January 2020. It does not dispute that the surgery Dr Popoff proposes to perform is reasonably necessary medical treatment.
The applicant has given evidence about what occurred on 31 January 2020. I accept that he was subjected to significant force from the water that escaped when the hose he was using broke. He sustained injuries about which there is no dispute.
Mr Portelli’s evidence is that it was a few weeks after the incident that he began to feel pain in his left knee. In fact, Mr Foti recorded on 15 February 2020 (about two weeks after) that he began to have knee pain one to two hours later.
It is possible that Mr Foti made an error in recording the time of onset of pain in the applicant’s left knee, or that the applicant himself is mistaken. However, the fact remains that, within about two weeks of the incident on 31 January 2020, the applicant complained to Mr Foti that he had symptoms in his left knee. At that stage, there was no suggestion that he would require surgical or other treatment for his knee. The focus was on his other injuries.
The applicant told Dr Pham in August 2020 that he had had ongoing knee pain since the incident. In her report to StateCover, she referred to the surgery he had undergone in 2012 (but not 2014) but said he had been free of symptoms for a few years. She was the applicant’s long term GP, and the practice’s clinical notes support that conclusion. The last entry regarding symptoms in his left knee was in November 2016, over three years before the injury.
The respondent referred to the fact that Dr Popoff has not referred in his reports, or at least in those in evidence, to his previous treatment of the applicant’s left knee. However, he must have been aware of the applicant’s history, having been his treating surgeon and performed the earlier surgery.
In my view, Dr Popoff has adequately explained his reasons for opining that the necessity for surgery results from injury to the applicant’s left knee arising out of or in the course of his employment with the respondent on 31 January 2020.
Dr Popoff quite unequivocally said there were no non-workplace related factors – “this is a work related injury...” He also opined that the applicant’s clinical, radiological, and historical presentation were entirely consistent with the work injury as described. I am satisfied that he must have considered those matters in reaching his conclusion. He also had a history of the onset of left knee pain some time after the injury, but still opined that the applicant injured his left knee on 31 January 2020.
The MRI arranged by Dr Popoff apparently revealed both medial compartment degeneration and a tear of the medial meniscus. He opined both that the MRI findings were consistent with the mechanism of injury, and the applicant had signs and symptoms consistent with a meniscal tear that were not present before the injury. He has referred in his surgical quote to “traumatic meniscus tear”.
Dr Popoff noted that the applicant had degenerative changes in his left knee but opined that they were not the predominant cause of his symptoms.
A/Prof Hope recorded that, before 31 January 2020, all the applicant’s body parts were symptom-free. The GPs’ clinical records reflect that he had made no recorded complaints about his left knee for over three years before the injury. A/Prof Hope agreed with Dr Popoff that the applicant had a meniscal tear, which was consistent with a twisting or torsional tear.
Dr Sheehy recorded that the applicant developed pain in his left knee in March 2020, and in those circumstances, the accident on 31 January 2020 had not contributed to the condition, without explaining his reasoning. In any event, it was in mid-February 2020, not March 2020, that Mr Foti recorded left knee symptoms.
Dr Powell was told that the applicant had pain in his left knee, had a left knee medial meniscectomy on 21 June 2012, and Dr Pham had recommended review by Dr Popoff. He was asked whether he believed the accident on 31 January 2020 had caused or aggravated “this condition”.
All Dr Powell said in response was that the available evidence did not support the applicant having sustained a specific injury to his left knee on 31 January 2020. He did not have any investigations of the left knee, and in fact none is in evidence.
However, Dr Popoff has reported that the MRI of the applicant’s left knee that he arranged showed a meniscal tear that had not previously been present. In my view, the logical conclusion to be drawn is that the tear occurred on 31 January 2020, as both the treating specialist and A/Prof Hope opined. Neither Dr Sheehy nor Dr Powell has been asked to opine as to whether this may be the case.
I have noted that doctors who have treated or examined the applicant since the injury have not recorded injury to, or symptoms in, his left knee. However, he did complain about his left knee at an early stage to Mr Foti; he complained to Dr Pham when she resumed his care; and his treating specialist, who must be assumed to know his history, unequivocally opined that he injured his left knee on 31 January 2020 and sustained a torn medial meniscus.
I am persuaded by the evidence of, in particular Dr Popoff and A/Prof Hope, that the applicant did sustain injury to his left knee on 31 January 2020. I prefer their evidence to that of Dr Sheehy and Dr Powell.
I determine that the applicant sustained injury to his left knee arising out of or in the course of his employment with the respondent on 31 January 2020; and the surgery proposed by Dr Popoff is reasonably necessary treatment.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 46

8 February 2023