Precision Valve Australia Pty Ltd v Nanda

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48
APPELLANT:		Precision Valve Australia Pty Ltd
RESPONDENT:		Rakesh Nanda
INSURER:		Gallagher Bassett Services Pty Ltd
FILE NUMBER:		A1-1024/12
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		4 June 2012
DATE OF APPEAL HEARING:		4 September 2012
DATE OF APPEAL DECISION:		7 September 2012
SUBJECT MATTER OF DECISION:		Compensation for lump sum; compensation for consequential condition; causation; whether consequential condition resulted from accepted work injury; application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; failure to give reasons; failure to deal with relevant evidence and submissions
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr J Harris, instructed by TurksLegal
Respondent:	Mr P Stockley, instructed by Steve Masselos & Co
ORDERS MADE ON APPEAL:		Paragraph 1 of the Certificate of Determination issued on 4 June 2012 is revoked. For the reasons given in this decision, paragraphs 2, 3 and 4 of the Certificate of Determination of 4 June 2012 are confirmed. The appellant employer is to pay the respondent worker’s cost of the appeal, assessed at $2,200 plus GST.

INTRODUCTION

This appeal concerns a worker’s entitlement to lump sum compensation for symptoms in his right knee said to have resulted from an undisputed injury to his low back that allegedly caused him to favour his left leg and place additional weight on his right leg.

BACKGROUND

The respondent worker, Rakesh Nanda, suffered ligament damage to his right knee in workplace injuries on 26 October 2005 and 31 October 2005, and had surgery on that knee on 28 November 2005. The surgery revealed, among other things, grade IV chondral damage to the knee joint and a tear of the medial meniscus. He recovered from that surgery, but continued to have restricted movement in his right knee.
On 21 December 2008, Mr Nanda fell from a ladder in the course of his employment with the appellant employer, Precision Valve Australia Pty Ltd, and injured his back and coccyx. As a result of his injury, he developed symptoms in his left leg and had back surgery on 2 February 2009.
Mr Nanda’s case before the Arbitrator was that, as a result of symptoms in his left leg (pain and numbness), he placed additional strain on his right leg and exacerbated the pre-existing disease process in his right knee. He claimed lump sum compensation in respect of a 30 per cent whole person impairment for the combined impairment resulting from his back condition (12 per cent, if assessed separately) and his right lower extremity (knee) symptoms (20 per cent, if assessed separately).
The appellant employer has accepted liability for the claim for 12 per cent whole person impairment for the back. The parties agreed at the arbitration that the issue for the Arbitrator to determine was whether the condition of Mr Nanda’s knee resulted in whole or in part from his back injury on 21 December 2008.
After hearing oral submissions from both sides, the Arbitrator delivered an extempore decision in which she found in favour of Mr Nanda. The Commission issued a Certificate of Determination on 4 June 2012 in the following terms:
“The determination of the Commission in this matter is as follows:
1.   That the applicant suffered an injury to his right knee as a result of the undisputed injury to his lumbar spine on 21 December 2008.
2. That the claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment in respect of the lumbar spine and the right lower extremity (right knee), with a date of injury of 21 December 2008.
3.   That the Application to Resolve a Dispute and attachments and the Reply and attachments and Applications to Admit Late documents dated 29 March 2012, 20 April 2012, 16 May 2012 and 30 May 2012, and all attachments are to be provided to the Approved Medical Specialist.
4.   Respondent to pay the applicant’s costs as agreed or assessed at the conclusion of the proceedings.”
The appellant employer has challenged the Arbitrator’s decision.

PRELIMINARY MATTERS

Monetary threshold

It is not disputed that the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.

Time

The appeal was lodged in time.

Interlocutory

Under s 352(3A), there is no appeal under s 352 against an interlocutory decision except with leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
The appellant employer has submitted that the Arbitrator’s decision was a “determination in relation to injury” and is therefore not an interlocutory order.
Mr Nanda’s solicitor, Mr Bordon, submitted that his client did not accept that the submission in the preceding paragraph was “strictly correct”. He said the worker’s case was that, as a consequence of the (back) injury on 21 December 2008, his client suffered a whole person impairment due to the condition of his right lower extremity. Mr Bordon added:
“On one view of it, the question of the degree of impairment, if any, was a matter purely for the Approved Medical Specialist in due course. However, [Mr Nanda] submitted to the process of having this question determined by the Arbitrator.
It is not a necessary consequence of this procedure that the Arbitrator’s decision was final.”
I have not found Mr Bordon’s submissions on this point to be of any assistance. Not only did Mr Nanda “submit” to the procedure before the Arbitrator, he initiated that procedure and raised no objection to the Arbitrator determining the dispute presented. The submission that the question was a matter purely for an Approved Medical Specialist (AMS) was not raised before the Arbitrator and has not been raised on appeal.
In any event, the question referred to in the preceding paragraph does not determine if the Arbitrator’s decision was interlocutory. That question is determined by considering if the decision has finally disposed of the parties’ rights (Licul v Corney [1976] HCA 6; 50 ALJR 439). Neither party has made any useful submissions on that question.
It is arguable that the Arbitrator has merely determined a preliminary question, namely, whether the condition of Mr Nanda’s right knee has resulted, in whole or in part, from the accepted back injury. Ultimately, the extent of any compensation to which he is entitled will depend on the assessment made by an AMS and the Commission is unable to make an award for compensation until an AMS issues a Medical Assessment Certificate (MAC). Thus, the Arbitrator has not finally determined Mr Nanda’s entitlement to compensation for his right knee condition and the decision is interlocutory.
The appellant employer’s submission that the Arbitrator made a determination in relation to “injury” is incorrect. Mr Nanda did not suffer a s 4 injury to his right knee on 21 December 2008, and has not relied on the injuries that occurred on 26 and 31 October 2005, but has alleged that he has developed symptoms in his right knee as a result of his back injury. His claim is for compensation for a consequential loss.
It is therefore strongly arguable that the Arbitrator’s decision is interlocutory and that leave to appeal is required. If leave to appeal is refused, the matter will be referred to an AMS for assessment of the whole person impairment due to the condition of Mr Nanda’s right knee as a result of the back injury that, if the appeal succeeds, may not need to be assessed. That will result in a waste of the Commission’s limited resources and should not be permitted.
It follows that I am of the opinion that determining the appeal is necessary and desirable for the proper and effective determination of the dispute, and I grant leave to appeal.

THE EVIDENCE

Mr Nanda

In a statement dated 18 January 2012, Mr Nanda said that he injured his right knee while changing a colour machine in the course of his employment with the appellant employer in 2005 and that he fully recovered from that injury.
He hurt his back on 21 December 2008 when he fell from a ladder onto the concrete floor. He needed assistance to get to his feet. He was taken to hospital by ambulance, where he was x-rayed and, after a short period of observation, allowed home. His general practitioner referred him to Dr Renata Abraszko, neurosurgeon and spinal surgeon, who performed a microdiscectomy on 2 February 2009.
Mr Nanda returned to work in the second half of 2009. At some stage, the appellant employer’s management changed and, though he initially returned on restricted duties and hours, he was ultimately given heavy and physically demanding tasks, which aggravated his back.
He said that, because of his back injury, his left leg “lost all sensation” and he was relying on his right leg “putting all the body pressure for support to the right side” (Mr Nanda’s statement at [15]). He said he had spoken about the “growing pain in [his] right knee” to his general practitioners, Dr Houston and Dr Nguyen, the rehabilitation people, and Dr Abraszko. After conservative treatment, Dr Nguyen referred him to Dr Davé, who operated on his right knee on 10 November 2010.

Dr Powell

Dr Powell reported on 11 April 2006 that Mr Nanda injured his right knee in two workplace injuries; the first on 26 October 2005 and the second on 31 October 2005. At surgery on 28 November 2005, a chondroplasty, partial meniscectomy, anterior tibial osteoplasty and removal of a loose body were performed. After physiotherapy, Mr Nanda was able to return to his normal duties.
The operation resolved Mr Nanda’s right knee pain and there was no further swelling in the knee. However, he had a restricted range of motion and said he was unable to squat. He complained of non-specific “heaviness” affecting the right knee and lower leg.
On examination, Mr Nanda had a normal gait and neutral alignment of the right knee. He was able to squat. There was no obvious wasting and no effusion in the knee.
Dr Powell said that the grade IV chondral damage found at surgery was most likely a pre-existing pathology and that the workplace incident could have resulted in aggravation of the degenerative change, in association with further chondral damage, possibly contributing to the development of a loose body. The medial meniscal tear was most likely the result of the workplace incident on 31 October 2005. He thought that Mr Nanda was asymptomatic at the time of his examination.

Campbelltown Hospital

The notes from the Campbelltown Hospital record that Mr Nanda fell from a ladder and landed on his left hip on 21 December 2008. He complained of pain in his left hip radiating into the back of his left leg and had numbness in the third, fourth and fifth toes of the left foot. X-rays showed a fracture of the coccyx, but no other significant pathology.

Dr Fearnside

Dr Fearnside, neurological surgeon, saw Mr Nanda for the appellant employer on 5 February 2010. In his report of the same date, he took a history of the back injury and the prior knee injury. He recorded that Mr Nanda had a sensory loss in his left leg that developed one or two days after the fall. An MRI scan on 9 January 2009 revealed a very large left-sided L5/S1 disc protrusion. The operation on 2 February 2009 did not improve his left leg pain or sensory loss. In the six months after the operation, the left sciatica worsened and was not relieved by medication. The sensory loss was unchanged.
About two months before seeing Dr Fearnside, Mr Nanda developed proximal pain in his right leg, mainly in the thigh but not below the knee, which he thought may have been due to the fact that he tended to favour his left leg and limped when he walked.
On Mr Nanda’s return to work, he was given a heavier job and re-injured his back in about January 2010 when he was lifting at work. He had a recurrence of back pain and left sciatica. Mr Nanda complained to Dr Fearnside that he had a constant sensory loss and dysaesthesia in his left leg, but the pain component was minimal. He had intermittent pain in the right thigh that was activity-related but no radicular symptoms in that leg.
Sitting was relatively comfortable, but standing and walking were limited to 20–30 minutes, after which time Mr Nanda experienced stiffness and pain in his back and increased discomfort in the left leg.
Neurological examination revealed normal tone and power in the right leg, but two centimetres of wasting of the right thigh and three centimetres of wasting of the right calf, which Dr Fearnside felt was more likely the result of the previous knee surgery. The right knee and ankle reflexes were normal.
On the left side, there was weakness of plantar flexion of the ankle and toes, and the left ankle reflex was absent. There was sensory loss in the left S1 dermatome and Mr Nanda was not able to stand on the toes of his left foot, but was able to do so with the right foot, confirming the weakness of plantar flexion. The examination provided objective evidence of left S1 radiculopathy. Because of Mr Nanda’s condition, Dr Fearnside recommended a follow up with Dr Abraszko.

Dr Abraszko

Dr Abraszko saw Mr Nanda in early January 2009 and took a history of his fall and that, since the accident, he had significant back pain radiating to the left leg, and numbness and a burning sensation in the left leg. There was decreased sensation in the left S1 nerve root distribution. Knee jerks were present, but the left ankle jerk weaker. Power was slightly decreased in the left foot plantar flexion.
After the operation, Dr Abraszko reported on 4 March 2009 that Mr Nanda’s pain had improved significantly. However, he still complained of numbness in the sole and left side of his feet, which had improved around 75 per cent, but still remained and gave him trouble with walking. Dr Abraszko recommended physiotherapy and acupuncture, and that he be fitted with proper shoes.
Dr Abraszko reported on 17 June 2009 that Mr Nanda’s left leg numbness remained and, given the time that had lapsed (since surgery), was unlikely to improve. He also had some cramps in his legs, for which the doctor recommended massage.
On 28 April 2010, Dr Abraszko reported that Mr Nanda had returned to work as a process worker performing heavy duties. This increased his back pain, which now radiated to his right leg. The Lasègue’s sign was at 70 degrees on the right side, though power, tone and reflexes were normal. There was decreased sensation in the left leg, as previously. An MRI scan was said to show more compression of the right L5 nerve root and Dr Abraszko recommended right L5/S1 epidural injections.
At review on 30 June 2010, Mr Nanda complained of pain in his right leg and buttock. The right L5/S1 epidural injections gave improvement for only one week. Dr Abraszko prescribed a trial of Lyrica.
Mr Nanda again complained of pain in his right thigh radiating to the right knee when he saw Dr Abraszko on 1 September 2010. Dr Abraszko said that there were degenerative changes visible on the bone scan, which she thought were “due to right knee pain”. She recommended an MRI of the right knee. As it showed some pathology, Dr Abraszko referred Mr Nanda to Dr Davé, orthopaedic surgeon.
At review on 9 February 2011, Mr Nanda complained of right knee pain, for which he had had an arthroscopy. He had been offered a total knee replacement, but, because he did not want to proceed, was having injections. The numbness in his left leg continued and had not improved.
On 6 April 2011, Dr Abraszko reported that, having started a gym program, Mr Nanda had improved about 10 per cent, but did not say if that was an improvement in his back or right knee.

Dr Davé

Dr Davé saw Mr Nanda on 21 October 2010. He diagnosed osteoarthritis of the right knee, loose bodies, and possible old “ACL [anterior cruciate ligament] injury”. He took the following history:

“In 2008, he had a work-related accident for which he has had a decompression. It has helped his spine. He has been left with some left leg numbness. With this in mind, he was favouring [sic] his contralateral leg. It has been giving him severe pain, affecting him in all dimensions of life.”

An MRI scan of the right knee showed degeneration of the anterior cruciate ligament, possible loose bodies and tricompartmental arthritis. Clinical examination was consistent with an arthritic joint. He recommended an arthroscopy to wash out and remove loose bodies.
Dr Davé reviewed Mr Nanda on 11 January 2011. Because of continuing knee pain, he recommended either a Synvisc injection or a total knee replacement. There is no evidence that he saw Mr Nanda after this date.
In a medicolegal report addressed to Mr Nanda’s solicitors on 26 September 2011, Dr Davé recorded a history that Mr Nanda injured his back and knee in the 2008 accident. He added:
“Subsequent to this he was treated by Dr Abraszko, with a decompression of his spine, but he continued with leg pain and some numbness. He describes that he went on favouring his right leg and had ongoing pain.”
Clinical examination (of the right knee) was consistent with an arthritic joint and, in the long run, Mr Nanda was recommended to have a knee replacement. Because of his age, it was decided to offer him an arthroscopic washout and to remove any loose bodies. The arthroscopy on 10 November 2010 revealed grade IV changes of the medial compartment, grade IV changes of the patellofemoral joint and a loose body. These were all debrided.
In answer to the question “[i]n light of your findings, what do you believe to be the connection between the injuries you found on examination and the history”, Dr Davé wrote:
“Comment: He describes that since his accident he had had a direct blow, as well as ongoing favouring of his right knee. This was on grounds of his left knee being weak from the radicular symptoms that he had had.”

Dr Smith

Dr Anthony Smith, orthopaedic surgeon, examined Mr Nanda on behalf of the appellant employer’s insurer on 12 May 2010 and reported on that day. He took a history of the back injury in 2008, which caused severe back pain and numbness and pain in the left leg. The operation did not relieve Mr Nanda’s left leg symptoms at all and only moderately improved his back pain.
Under “current status”, Dr Smith recorded that Mr Nanda had very severe pain on the right side of his low back about a month before the examination, with pain running down the right leg and from the knee to the foot. He still had numbness and low back pain, which was just as severe as ever. Because of pain in his right leg, he had an x-ray of his knee.
On examination, Dr Smith found altered sensation over the lateral left leg and an absent left ankle jerk. There were no other neurological signs in either leg.
Dr Smith concluded that Mr Nanda has arthritis in both knees, the right more severe than the left, which pre-dated 21 December 2008. So far as the right knee symptoms were concerned, Dr Smith added:
“It has been suggested by Dr Houston, I gather, that [Mr Nanda] is having right leg symptoms now as he is taking more weight on his right leg because of his painful and numb left leg. That is not likely to be correct.”
Dr Smith thought that Mr Nanda would have been better off if his back had been treated non-operatively and that it was likely that he would have recovered without the operation. The surgery did Mr Nanda no good at all and he had ongoing symptoms with pain in both legs referred from his back. The significant arthritis in the lumbar spine could produce his leg symptoms.

Dr Smith recorded “it would appear the right knee arthritis has become symptomatic of late”.
Dr Smith concluded that Mr Nanda had bilateral osteoarthritis of the knees, which was not work-related, and was not affected by the injury of 21 December 2008. He also had a genetic abnormality (Scheuermann’s disease) affecting the entire lumbosacral column and extensive facet joint arthritis throughout the column. He did not think there was any evidence of a disc protrusion. Mr Nanda had post-laminectomy syndrome with regard to his back.
Dr Smith reviewed Mr Nanda on 18 August 2010 and reported that Mr Nanda continued to have intermittent symptoms and had good and bad periods “with regard to the right leg pain”, which was in the posterior thigh, to the knee most of the time, but was sometimes in the calf. Mr Nanda continued to have stiffness and discomfort in the low back, especially on the left.
On examination, Mr Nanda continued to have altered sensation in his left leg. Dr Smith could not elicit a left ankle jerk. Mr Nanda was otherwise neurologically normal in both legs. Dr Smith remained of the view he expressed in his first report.
In a supplementary report on 14 November 2011, Dr Smith said that knee arthritis was a genetic phenomenon. He added that Mr Nanda described no symptoms “that one could relate to his knees but because he had pain in the legs, an x-ray was done of the legs demonstrating that in the knee joint, he had arthritis”.
The insurer asked Dr Smith if, considering Dr Davé’s opinion in his report of 26 September 2011 (a copy of which was sent to Dr Smith), he was still of the view that Mr Nanda had bilateral osteoarthritis of the knees, which was not work-related, and was not affected by the injury of 21 December 2008. Dr Smith replied:
“There is no doubt that he has bilateral osteoarthritis of the knees. It is not work caused or work related. He did not complain of any symptoms one could relate to his knees after the accident of 21 December 2008.”
Dr Smith added that Mr Nanda’s knee arthritis “would long pre date 21 December 2008”.
The insurer also asked Dr Smith if, considering Dr Davé’s report, he was still of the opinion that it was not likely to be correct that Mr Nanda was having right leg symptoms as he was taking more weight on his right leg because of his painful numb left leg (see [51] above). If he was still of that opinion, he was asked to clarify his answer. Dr Smith replied:
“Whether he takes his weight more on one leg or the other will have no affect on the incidence of knee arthritis for it is genetic. It might make him have more symptoms from it from time to time but it will not cause it to get any worse. It will get worse whether he walks on it or whether he does not. The knee arthritis will not cause numbness in the leg.”
Dr Smith added that Mr Nanda’s knee arthritis, back arthritis and his Scheuermann’s disease were all constitutional genetic abnormalities. They are all part of the aging process and, in the doctor’s opinion, it does not matter what work one does. Mr Nanda’s employment was not a substantial contributing factor to the osteoarthritis in his knee. The appearance on the April 2010 x-ray of the right knee would take a number of years (five to 10) to progress to that point.

Rehabilitation reports

On 20 April 2009, Dr Withford-Cave, exercise physiologist with Rehabfocus Australia, conducted a functional capacity evaluation and observed Mr Nanda to have “normal posture and gait”. The aerobic fitness test conducted by Dr Withford-Cave consisted of a “three minute step test” in which Mr Nanda was able to walk and climb stairs, though his fitness was below average.
Anita Chan, rehabilitation consultant with qualifications as an occupational therapist, reported on 8 July 2009 that someone from Rehabfocus had attended a case conference with Dr Abraszko on 17 June 2009. Mr Nanda had reported that, at times, he experienced cramping and stiffness in his thigh muscle, as well as numbness in the last three toes of his left foot. It was felt that massage would help. Subsequent massage and heat therapy was beneficial in reducing the symptoms.
As a result of an aggravation of his back condition in about November 2009, Dr Houston referred Mr Nanda to Psych Plus. In an initial assessment report dated 4 December 2009, Janelle Murdoch, physiotherapist with Psych Plus, noted the following under “Numbness”:
“Left leg – constant numbness
No sensation on left side of sole of foot
Numbness is major issue – has changed gait pattern – stated that it makes him crippled. Degree of numbness has not changed since the aggravation.” (emphasis included in original)
Mr Nanda’s walking tolerance was reported as 10 minutes before he had to stop and stand before continuing to walk. The reported added “[c]ontinues to have pain in right knee. Left leg has difficulty maintaining pressure”. On examination, Mr Nanda was unable to “single leg stance on left”.
The report added that Mr Nanda’s “major issue” was coping with no change to the degree of numbness (in his left leg) despite having been advised by his specialist that any improvement in numbness would be slow and the numbness may not improve.

General practitioners’ notes

Dr Houston recorded the following in his typed notes on 11 May 2009:
“R knee aches and pains relief i [sic]Voltaren
click on getting up
sore to do squat exercise

back good
toes better
has had functional assessment done
o/e
creopitus [sic] R knee
sl effusion
squat ok
back flex good ext 5 lat flex 10
plan
need functional result”

Dr Nguyen recorded the following in his typed notes on 18 March 2010:
“acci at work,
fell off the ladder, 3 m ht
21/12/08
fell on his left buttock
fracture lumbar spines [sic]
left leg post lat numbness, was told may be permanet [sic] by dr abrazko [sic]
sb c town
opinion by dr arbazko [sic] feb 2009
john Huston [sic] was his gp
had hydrotherapy and physio was weekly last night
rt knee and leg compensatory pain
worse toward endo [sic] his shift
worse now
taking panadol 2 tds
panadeine f 1 aday [sic] aver [sic] constip [sic]
was on mobic, not muc [sic] help
finished physio y day
was given ex
seeing psychologist, Kim Mehe, Ivp
for mental stress,
rehab provider ???? Kim Mehe
mri 13/1/09 u;trascan [sic]: more severe changes l5/s1, paracentral protusion [sic], s1 nerve root impigement [sic]
lumbar sp ct 23/12/08 degenerative changes, l3-4
left side soft tissue l5-s1, protrusion, displa [sic] s1 nerve root
was givin [sic] PID 2 months ago
on a different job thant [sic] the pid [sic] job

more difficult
prev [sic] was a supervisor
now on the floor
repetitve [sic] lifting, walkin [sic]…
more pain in the legs towards the end of the shift
and lbp intermi [sic] esp left
rt knee injury 2003
had operation
walki [sic] slow
stifness [sic] gaite [sic]
flex 45
ex, lat n
nil m spasm
sir 45 bil
ni pain
power sl weak bc pain
rt knee jt oa [sic]
crep,
redu ron [sic]
squatn [sic] 1/4
scars noted
nil mm sp, or tenderness
for ref back to dr abrazko [sic]”

THE ARBITRATOR’S DECISION

The Arbitrator noted that there was no dispute in respect of the 2005 injury (to the right knee) and that the evidence was clear that Mr Nanda suffers from bilateral arthritis in both knees, worse in the right knee. She accepted that he had significant problems (with his right knee) in 2005.
She felt that Dr Davé’s history that Mr Nanda had suffered a direct blow to his right knee was flawed. However, the second part of Dr Davé’s references to the knee were “to do with favouring the right knee” (T20.32) and that was consistent with other medical evidence and Mr Nanda’s statement.
The Arbitrator said that she had to apply a commonsense evaluation of the causal chain in respect of whether the right knee symptoms suffered by Mr Nanda flowed from the accepted injury to the back and that she would err in making a finding of injury (to the knee) pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act).
The Arbitrator referred (at T21.13) to the general practitioner’s reference on 18 March 2010 to the “right knee and knee [sic] compensatory pain”. She said that she would expect references to a “secondary issue such as being claimed to emerge later” (T21.17) and that it made sense that there was no complaint (of knee pain) between 2006 and 2009 in the contemporaneous notes. The knee problem started emerging in 2009.
She accepted that Mr Nanda’s statement that he had lost all feeling in his left leg seemed “to go further than the medical evidence” (T21.27). However, taking the medical evidence as a whole, there were frequent references to numbness in the left leg and to that bothering Mr Nanda.
The Arbitrator found it plausible that Mr Nanda would, because of the numbness and symptoms in his leg, “put more weight on or more use on his right leg and that that would have exacerbated or accelerated the pre-existing arthritic condition in his right knee” (T21.33–22.3).
She added that the evidence on both sides was “scant”, but she accepted, taking that evidence into account, particularly Dr Davé’s opinion, there was “an injury to the right knee” and an “unbroken causal chain, but in [sic] between the back injury and the knee symptoms on the right side which emerged from at least 2009 onwards and required attention in 2010” (T22.10–14).
The quote in the previous paragraph contains a transcription error. I have listened to the audiotape of the hearing. The Arbitrator said there was “an unbroken causal chain between the back injury and the knee symptoms on the right side which emerged from at least 2009 onwards and required attention in 2010”. This is consistent with her ultimate finding, where she said (at T22.16) that:
“there is an unbroken causal chain between the back injury and the knee symptoms and therefore Mr Nanda has discharged the onus on him to prove that on the balance of probabilities his right knee symptoms developed as a result of his undisputed back injury.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that the right knee symptoms commenced in 2009 (commencement of right knee symptoms);
(b)     finding that the injury to the back “accelerated and exacerbated pre-existing degenerative changes in the right knee” (exacerbation);
(c)     failing to give adequate reasons including:
(i)failing to adequately consider the medical report of Dr Davé of 26 September 2011 in relation to the issue of causation;
(ii)failing to consider any of the reports prepared by Dr Smith;
(iii)failing to consider the totality of the evidence, which contradicted Mr Nanda’s assertion that his “left leg lost all sensation”;

(iv)failing to consider the medical evidence of Dr Abraszko that Mr Nanda’s sciatica in his right leg was worse than the referred symptoms in the left leg, which contradicted Mr Nanda’s assertion that he overcompensated for his left leg by overusing his right leg, and

(v)failing to adequately consider the medical evidence relating to pre-existing pathology and symptoms in the right knee (reasons).

(d)     interpreting the clinical notes of the general practitioner of 18 March 2010 and the conclusion expressed by Dr Davé in his report of 26 September 2011;
(e)     applying the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) and Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, and
(f)      finding that the accepted injury to the lumbar spine caused right knee symptoms.

SUBMISSIONS, DISCUSSION AND FINDINGS

Commencement of right knee symptoms

The appellant’s original submissions (attached to the notice of appeal lodged on 21 June 2012) asserted that the first evidence of the onset of symptoms in the right knee was in the general practitioner’s notes of 18 March 2010. That submission was acknowledged to be incorrect in submissions lodged on 13 July 2012 (after receipt of the transcript), when it was conceded that Mr Nanda had complained to his general practitioner of right knee pain on 11 May 2009, but the submissions added that there did not appear to be any other record of right knee pain in 2009.
Rather than abandoning the first ground of appeal, counsel for the appellant, Mr Harris, has submitted that the complaint of knee pain in 2009 was not recorded as having been made in the context of compensating for left leg dysfunction and that the evidence of right knee symptoms was relevant to other evidence concerning Mr Nanda’s use of his right leg. It was contended that Mr Nanda’s evidence that his right leg was being used to compensate for the total loss of sensation in his left leg was inconsistent with other evidence involving the sciatic problems in both legs. It was also submitted that the next evidence of right knee symptoms was in the general practitioner’s notes of 18 March 2010.
The first ground of appeal is plainly incorrect and should have been abandoned once the error in the original submissions was discovered. The typed notes from Dr Houston are clear. On 11 May 2009, Dr Houston recorded that Mr Nanda complained that his right knee ached and that he had clicking on getting up and that it was “sore” to do squats.
The submission that the next evidence of right knee symptoms was not until 18 March 2010 is also incorrect. Ms Murdoch’s report of 4 December 2009 (see [64] and [65] above) referred to Mr Nanda continuing to have right knee pain at the time of her assessment on 25 November 2009. Significantly, that pain was in the context of having difficulty maintaining pressure on his left leg.
To the extent that the appellant employer’s remaining submissions under this ground relate to other grounds of appeal, they are discussed below.

Exacerbation

The appellant employer has submitted that there is no medical evidence to justify the Arbitrator’s finding that the injury to the lumbar spine “exacerbated or accelerated the pre-existing arthritic condition of the right knee” (T22.1–3).
The respondent worker submitted that the Arbitrator found an unbroken causal chain between the back injury and the right knee symptoms that emerged in 2009, and that this finding was supported by the evidence and discloses no error.
It is correct that there is no expert evidence that the injury to the lumbar spine caused an exacerbation or acceleration of the pre-existing arthritic condition in the right knee. However, the Arbitrator’s reference to the back injury having exacerbated or accelerated the pre-existing arthritic condition in the right knee has been quoted out of context.
The full quote starts at T21.33, and reads:
“I find it plausible that he would, because of the numbness and symptoms in his left leg, put more weight or more use on his right leg and that that would have exacerbated or accelerated the pre-existing arthritic condition in his right knee.” (emphasis added)
A statement that something is plausible is not a formal finding that something is established on the balance of probabilities, though it will often be a step in the reasoning process that leads to that conclusion.
The Arbitrator correctly acknowledged (at T21.1–7) that she had to apply a commonsense evaluation to the causal chain “in respect of whether the right knee symptoms suffered by Mr Nanda flowed from the accepted injury to his back” (emphasis added) and that it would be an error to attempt to make a finding of a s 4 injury.
In this context, her ultimate finding (at T22.16-20) was:
“I find that there is an unbroken causal chain between the back injury and the knee symptoms and therefore Mr Nanda has discharged the onus on him to prove that on the balance of probabilities his right knee symptoms developed as a result of his undisputed back injury.”
It follows that the reference to it being plausible that, because of the left leg symptoms, Mr Nanda put more weight on his right leg and that that would have exacerbated or accelerated the pre-existing arthritic condition in the right knee was not critical to the conclusion and it is of no relevance in a consequential loss claim.
It might have been different, and the appellant employer’s complaint might have had some merit, if the case had been one based on an aggravation injury under s 4(b)(ii). In that situation, a finding that there had been an aggravation or acceleration of a disease would have been a necessary and critical finding for the worker to succeed. Even then, however, it would be arguable that, even in the absence of expert evidence, such a conclusion was an inference that was open on the evidence because of common knowledge and ordinary human experience (see Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465 and the comments at [123] below).

Reasons

In summary, the appellant employer has submitted that Arbitrator did not:
(a)     consider the submission that Dr Davé “did not express an opinion on the matter”;
(b)     refer to the opinion of Dr Smith and did not give any reasons for impliedly rejecting his opinion;
(c)     address the submission that, in 2010, Mr Nanda was complaining of significant right leg problems which did not support his assertion that the “good” right leg was supporting the “useless” left leg, and
(d)     did not adequately analyse the pre-existing pathology “when failing to address whether this was the commonsense cause of the right knee condition”.
The respondent worker submitted that, by any of the criteria identified in the authorities regarding sufficiency of reasons, the Arbitrator correctly discharged her duty and her determination does not disclose an error of law.
While the Court of Appeal is conscious of not picking over extempore decisions by judges to look for error, and is mindful of the pressures under which judges work, the giving of adequate reasons lies at the heart of the judicial process (per McColl JA (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] and [57] (Pollard)). These comments are applicable to s 352 appeals from Arbitrators.
The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed), cited by Whealy JA in Sarian v Elton [2011] NSWCA 123 at [67]). Though a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential that he or she expose the reasons for resolving a point critical to the contest between the parties (Pollard at [58]).
Similarly, though a judge does not have to refer to every piece of evidence, he or she must refer to evidence that is important or critical to the proper determination of the matter (Pollard at [62] citing Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).
Where there is evidence supporting a party’s position, and where a party has presented detailed arguments on that evidence, that evidence and those submissions must be considered in the Arbitrator’s reasons. It is not appropriate for a judge to set out the evidence adduced by one side, and then the evidence adduced by another, and then assert that, having heard and seen the witnesses, he or she prefers the evidence of one and not the other (Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]).
Finally, where it is apparent from a decision that a judge made no analysis of the evidence competing with evidence apparently accepted, and gave no explanation for rejecting it, it is apparent that the process of fact-finding has miscarried (Pollard at [66]). This is because, so far as the reasons reveal, the judge made no examination of why the evidence which was accepted was preferred to that of other witnesses (Pollard at [66] citing Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816).
Having regard to the nature of the proceedings before Arbitrators and the terms of s 294 of the 1998 Act and Pt 15 r 15.6 of the Workers Compensation Commission Rules 2011, which expressly require the Commission to give reasons in support of its decisions, I believe that the above principles apply equally to the Commission’s Arbitrators as to judges.

At the arbitration, Mr Harris made the following submission (at T7.15–21) about Dr Davé’s opinion (recorded at [47] above):
“With respect to the first sentence seems to be a, a comment on the description given by the Applicant to him as opposed to his diagnosis. And it’s uncertain whether the second sentence is his diagnosis or whether that’s a continuation of the first sentence. What I say is it’s an, it’s, it’s really not a very good diagnosis of whether this is a consequential injury.”
Though it was not raised in the terms put on appeal, this submission raised an issue with which the Arbitrator had to deal. In broad terms, that issue was the strength of Dr Davé’s evidence. Though the Arbitrator considered a submission that Dr Davé had an incorrect history, she did not address the issue raised in the preceding paragraph, either in the terms of the submission or in any other way.
The Arbitrator did not refer to Dr Smith’s evidence at all, but merely said the evidence on both sides was “scant”. That did not engage with the evidence and was a clear failure to lawfully determine the issues in dispute. Dr Smith’s evidence was, on one view, against the worker’s position and was evidence on which Mr Harris made submissions, albeit brief. The Arbitrator was required to deal with it.
The Arbitrator also failed to refer to or deal with the submission that, in 2010, Mr Nanda was complaining of significant right leg problems, which, so it was argued, was inconsistent with the way the worker presented his case (T18.13). Though the argument was presented in a different way on appeal, the thrust of the submission was clear and raised an issue that the Arbitrator had to consider.
The Arbitrator’s finding of an unbroken causal chain between the back injury and the right knee symptoms seems to have been based on an acceptance of Mr Nanda’s complaints (supported by the general practitioner’s note of 18 March 2010) and Dr Davé’s evidence. However, Dr Davé’s evidence was challenged as being “not clear” (T10.8) in his diagnosis and the Arbitrator did not deal with that submission.
It follows that the Arbitrator made no examination of the relevant evidence or the submissions dealing with that evidence and that she erred in failing to do so. This requires that the matter be re-determined. As the Arbitrator heard no oral evidence, I am in as good a position as an Arbitrator to conduct that re-determination and both parties have consented to that course.

Remaining grounds of appeal

As the appeal is upheld because of the Arbitrator’s failure to deal with the evidence and submissions, it is not necessary to consider the remaining grounds of appeal. To the extent they are relevant, they are considered in the re-determination.

RE-DETERMINATION

The appellant employer’s position is that Mr Nanda’s claim should fail because, in summary:
(a)     the medical evidence does not support a finding that the right knee condition results from the accepted back injury;
(b)     part of Dr Davé’s history, that is of a frank injury to the right knee in December 2008, is incorrect;
(c)     Dr Davé did not express an opinion on the causal nexus;
(d)     there is significant pre-existing right knee pathology (in 2005) that is essentially similar to that shown in 2010;
(e)     Dr Smith expressed a contrary view on causation;
(f)      Mr Nanda’s assertion that the right leg overcompensated for the left leg numbness failed to take into account the significant right leg sciatic problems;
(g)     Dr Davé’s opinion on causation is not corroborated by the one line in the general practitioner’s notes dated 18 March 2010;
(h)     Mr Nanda’s evidence that his left leg “lost all sensation” was inconsistent with his complaints to doctors and the totality of the medical evidence;
(i)      the Commission would not be satisfied of Mr Nanda’s explanation that there was “over use” of the right leg, and
(j)      the rehabilitation reports establish that, contrary to Mr Nanda’s evidence, he did not complain of losing all sensation in his left leg and he had satisfactory use of that leg.
I do not accept the appellant employer’s submissions. My reasons are as follows.
It is first appropriate to note the nature of the claim. Mr Nanda is not alleging that he injured his right knee in the 2008 incident. It is therefore not necessary for him to establish that he suffered an “injury” to his right knee within the meaning of that term in s 4 of the 1987 Act. He is claiming compensation for a consequential loss. That is, a loss that he alleges has resulted from his previous compensable injury to his back (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
To succeed, he has to establish that the symptoms and restrictions in his right knee have resulted, in whole or in part, from the effects of the 2008 injury. The degree of any whole person impairment that has resulted from the condition of the right knee will be determined by an AMS, who will also determine the extent of any deduction for any proportion of the impairment that is due to any previous injury or for any pre-existing condition (s 323).
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648)?
The causation test to be applied was explained by Kirby P (as his Honour then was) (Sheller and Powell JJA agreeing) in Kooragang, where his Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour also observed (at 461G) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Mr Nanda’s evidence is that he made a good recovery from his knee surgery in 2005. This evidence is consistent with an absence of evidence of complaints of knee pain from 2006 until 11 May 2009 and has not been challenged.
He has consistently complained of significant left leg symptoms, both to his treating specialists and to rehabilitation consultants, from the time he attended Campbelltown Hospital on 21 December 2008 up to and including his statement of 18 January 2012.
His assertion that he had “lost all sensation” in his left leg may have been an overstatement, but that does not detract from the fact that he has had significant symptoms in his left leg ever since his fall, which were not relieved by the back surgery. Given the objective evidence of left S1 radiculopathy, as evidenced by the sensory loss in the S1 dermatome, the weak or absent left ankle jerk and the decreased power in the left foot plantar flexion, Mr Nanda’s complaints of significant left leg symptoms are logical and consistent and I accept them. His overstatement is of no consequence.
Moreover, Mr Nanda’s complaints of symptoms in his left leg are consistent with Ms Murdoch’s history in her report of 4 December 2009, when she recorded that he had constant numbness in his left leg and no sensation on the left side of the sole of his left foot. Her note that the numbness was a “major issue” and had changed Mr Nanda’s gait and made him “crippled” is also consistent with Mr Nanda’s evidence of the effect the left leg symptoms had on him. His complaints of difficulty because of his left leg symptoms are also corroborated by Dr Abraszko’s evidence that the left leg numbness remained after the surgery and that it gave him trouble with walking (see [35] above).
Mr Nanda’s complaint that, because he had lost sensation in his left leg, he put more pressure on his right side is consistent with Dr Davé’s history that he was “favouring his contralateral leg”. Though Dr Davé has not expressed himself as clearly as one would have hoped, I have assumed, consistent with the other evidence in the case, that he meant Mr Nanda was placing more weight on his right leg because of his left leg symptoms. That is, he was in fact favouring his left leg. This is consistent with Dr Abraszko’s evidence referred to in the preceding paragraph and with Dr Fearnside’s evidence that Mr Nanda tended to favour his left leg and limped when he walked (see [29] above).
I agree that Dr Davé’s evidence is less than ideal and may well have been insufficient to establish a s 4 injury. However, as explained above, Mr Nanda is not seeking to establish that he suffered a s 4 injury to his right knee. However, Dr Davé’s evidence must be read in the context of Mr Nanda’s good recovery from the 2005 knee surgery and his consistent evidence of significant problems with his left leg, resulting in him placing additional weight on what was, on any view of the evidence, a vulnerable right knee, and in context of Dr Davé’s initial history that Mr Nanda was “favouring his contralateral leg”.
I do not accept that Dr Davé did not give a “very good diagnosis”, as Mr Harris submitted. Dr Davé’s diagnosis was clear: Mr Nanda has arthritis and a loose body in his right knee. The question remains whether Dr Davé properly addressed the issue of whether Mr Nanda’s right knee symptoms resulted from his back injury. On this issue, the question posed to Dr Davé by Mr Nanda’s solicitors was unhelpful in that it asked for an opinion on the connection between the “injuries” Dr Davé found and the history in circumstances where the doctor did not find any injuries, but merely made a diagnosis of arthritis.
In any event, Dr Davé did not directly answer the question put to him about causation, but merely repeated the (incorrect) history that Mr Nanda had had a direct blow (presumably, to the right knee, though even that is unclear) and the (correct) history “ongoing favouring of his right knee” on the grounds that his left knee was weak from the radicular symptoms he had. To properly understand this answer, one has to go to Dr Davé’s report of 21 October 2010 where, based on the correct history, he clearly accepted a connection between Mr Nanda’s left leg symptoms (caused by the back injury), which caused a favouring of that leg (though Dr Davé confusingly described it as a favouring of the right leg), and Mr Nanda’s severe right knee pain.
It follows that Dr Davé’s incorrect history about the blow to the right knee is not critical and his evidence was not merely a recounting of Mr Nanda’s complaints, as Mr Harris submitted. When read as a whole, his evidence clearly accepts a link between the back injury and the increase in right knee symptoms because of a favouring of the left leg.
Even accepting the submission by Mr Harris that Dr Davé’s evidence was “not clear”, that does not mean the worker must fail. The Commission is entitled to rely upon commonsense in evaluating questions of causation (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 at 563–564, 569; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 per Mason J at 725). Commonsense strongly suggests that, if Mr Nanda was putting more weight on his right leg because he was favouring his numb left leg (and I accept his evidence that he was), then the symptoms he developed in his right knee have resulted, at least in part, from the injury to the back, which caused the left leg symptoms.
Mr Harris submitted that, though Dr Houston recorded a complaint of knee pain on 11 May 2009, that complaint was not made in the context of compensating for the left leg dysfunction. That is correct, but must be read with Dr Nguyen’s notes of 18 May 2010, which referred to right knee and leg compensatory pain.
Mr Harris has argued that Dr Nguyen’s notes are vague and incapable of supporting Mr Nanda’s case on causation. He submitted that the description of “leg and compensatory pain” may have been referring to right sciatic pain, that any compensatory pain may not have been as a result of the back injury, and it is not clear that the words “compensatory pain” relate to the right knee as opposed to the right leg.
I do not accept these submissions. When the full entry for 18 May 2010 is read, it is apparent that Dr Nguyen had a history that included the earlier knee injury (though he recorded it as having occurred in 2003, rather than 2005), the back injury, and the left leg symptoms from that injury. In this context, bearing in mind the histories noted at [118] above, and Mr Nanda’s evidence, I believe that the reference to right knee and leg compensatory pain, which was worse towards the end of the shift, was a reference to symptoms that resulted from placing extra weight on the right leg because of the left leg symptoms.
This conclusion is consistent with the Macquarie Dictionary meaning of “compensate”, which is “to counterbalance; offset; make up for” something, or to “counterbalance (a force or the like)” and, in particular, is also consistent with Mr Nanda’s evidence that, because of his left leg symptoms, he was placing extra weight on his right leg. It makes no difference that putting extra weight on the right side may also have caused an increase in right leg symptoms, as well as an increase in right knee symptoms. Dr Nguyen’s note is clearly consistent with Mr Nanda’s claim that he favoured his left leg and, to compensate for that, he placed more weight on his right leg and developed symptoms on that side.
Mr Harris submitted that Mr Nanda’s right leg symptoms were inconsistent with his claim that his right leg was supporting the left leg. I do not accept that submission. While it is true that Mr Nanda complained of right leg symptoms in 2010, which Dr Fearnside recorded as intermittent pain in the right thigh that was activity-related, Dr Fearnside added that there were no radicular symptoms in the right leg. The fact that Dr Fearnside’s examination revealed normal tone and power in the right leg strongly suggests that the right leg symptoms were not as troublesome as the left leg symptoms, which had objective signs of radiculopathy. It follows that the presence of right leg symptoms was not inconsistent with Mr Nanda’s evidence that he was “putting all the body pressure for support to the right side” and that he had complained to his doctors and others about “growing pain” in his right knee (see [22] above).
I do not accept Mr Harris’s submission that Dr Abraszko’s reports contradict Mr Nanda’s assertion that his right leg supported his left leg. In her report of 28 April 2010, Dr Abraszko took a history that Mr Nanda had been performing heavy duties and suffered an increase in back pain, which radiated to his right leg. However, consistent with Dr Fearnside’s examination, Dr Abraszko found power, tone and reflexes in the right leg to be normal. This evidence does not support the submission (ultimately withdrawn) that Mr Nanda had sciatica or radiculopathy in his right leg.
Though Dr Abraszko also took a history of right leg symptoms in her reports of 30 June 2010 and 1 September 2010, she added in the September report that she thought the degenerative changes in the bone scan were “due to right knee pain”. It was because of these symptoms that she referred Mr Nanda to Dr Davé. In these circumstances, the presence of right leg symptoms does not detract from Mr Nanda’s evidence that he placed more weight on his right side because of his left leg symptoms. It is perfectly logical that, given his significant and longstanding left leg symptoms, Mr Nanda would place additional weight on his right leg. That is so regardless of the fact that he also had some right leg symptoms.
The submission that the presence of right leg symptoms was inconsistent with Mr Nanda favouring his left leg is not supported by any persuasive evidence and is contrary to Ms Murdoch’s evidence, which strongly supports Mr Nanda’s case on several issues. First, that the left leg symptoms were significant, constant, had not changed since the aggravation, and made him “crippled”.
Second, because of the left leg symptoms, Mr Nanda changed his gait pattern. In the context in which this statement appeared, this can only have been a reference to Mr Nanda favouring his left leg and placing extra weight on his right leg because of the left leg symptoms.
Third, Mr Nanda had to stop and stand after walking for 10 minutes before continuing. Fourth, he had continuing pain in his right knee. And, last, he had difficulty maintaining pressure on his left leg.
All of these matters corroborate Mr Nanda’s evidence of significant continuing difficulties because of his left leg symptoms in late 2009, and that he placed additional weight on his right leg and experienced increased symptoms in his right knee as a result.
Turning to Dr Smith’s evidence, I have not found it to be persuasive. He steadfastly maintained that Mr Nanda’s knee arthritis was a constitutional genetic abnormality that was part of the aging process and refused to concede the possibility of any work involvement. Such a dogmatic and inflexible position is untenable and tends to suggest that the doctor did not properly consider the issues.
Dr Smith’s reference to Mr Nanda not complaining of “any symptoms one could relate to his knees after the accident of 21 December 2008” was ambiguous and unhelpful. If it meant that Mr Nanda had no knee symptoms immediately after the back injury, it was correct, but that does not assist in resolving the claim. Mr Nanda’s case is that his knee symptoms developed gradually over time, not immediately after the fall in December 2008. Rather than dealing with that issue, Dr Smith merely asserted that Mr Nanda had bilateral osteoarthritis of the knees “which is not work related, and was not affected by the injury of 21 December 2008”. That opinion failed to deal in any meaningful way with the issues.
If Dr Smith meant that Mr Nanda made no complaint of knee pain between December 2008 and the date of Dr Smith’s examination in August 2010, that was incorrect because, as already noted, there are numerous references to Mr Nanda complaining of knee pain in 2009 and 2010. Dr Smith himself noted in his report of 12 May 2010 that Mr Nanda’s knee arthritis had “become symptomatic of late”.

While Dr Smith did express the view that it was “not likely to be correct” that Mr Nanda’s right leg symptoms were caused by taking more weight on that leg because of his painful and numb left leg (see [51] above), his only possible explanation for that opinion would appear to be his inflexible view that arthritis is a genetic condition unrelated to work. When asked if he remained of that opinion, he replied (on 14 November 2011) that whether Mr Nanda took weight on one leg or the other would have no effect on the incidence of arthritis because “it is genetic”.

He added that taking more weight on one leg might make Mr Nanda “have more symptoms from it from time to time but will not cause it to get any worse”. What Dr Smith described, but would not concede, neatly fits the legal definition of an aggravation of a disease, namely, there is an aggravation of a disease if the symptoms of the disease are made more serious in their effects upon the worker (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 629).
It follows that I do not accept Dr Smith’s evidence.
Mr Harris submitted that the pathology in Mr Nanda’s right knee in 2010 was essentially the same as it was in 2005. Assuming that to be correct makes no difference to the outcome. I am not determining the extent of the deterioration in Mr Nanda’s right knee since 2005 and his current level of whole person impairment, but merely determining the causation issue of whether the increase in symptoms in the right knee has resulted from the 2008 back injury. If it has, the question of Mr Nanda’s whole person impairment is a matter for an AMS, who will no doubt consider the relevance of the radiology.
Last, Mr Harris referred to the evidence from Dr Withford-Cave that Mr Nanda had a normal gait at the functional capacity assessment in April 2009 and made two points. First, that it established that Mr Nanda did not lose all sensation in his left leg, and, second, that it suggested a satisfactory use of the left leg.
I have already agreed that Mr Nanda did not lose all sensation in his left leg and that his assertion that he had was an overstatement. However, as explained above, that overstatement is of no consequence. As to the second point, it may well be that Mr Nanda had satisfactory use of his left leg as at April 2009, but that was clearly not the case by December 2009, when Ms Murdoch recorded that he was “crippled” by his left leg symptoms.
The evidence from Dr Withford-Cave does not assist the appellant employer, but is consistent with Mr Nanda’s evidence that he made a good recovery from his previous knee injury and surgery. On the objective evidence in the medical records, he did not start to complain of right knee symptoms until after the April functional assessment and did not complain of an altered gait because of knee pain until December 2009. These matters support rather than undermine his case.

OTHER MATTERS

Though the Arbitrator correctly acknowledged that it would be an error for her to find that Mr Nanda suffered a s 4 injury to his knee, that is what she did at paragraph 1 of the Certificate of Determination. It follows that that order cannot stand and must be revoked.

CONCLUSION

Applying a “commonsense evaluation of the causal chain” and having regard to the evidence from Mr Nanda, Dr Davé, Dr Nguyen and Ms Murdoch, I am comfortably satisfied that, as a result of his left leg symptoms caused by his undisputed back injury in 2008, Mr Nanda has suffered increasing symptoms in his arthritic right knee. Whether those symptoms have caused a whole person impairment and, if so, the extent of that whole person impairment that has resulted from the back injury is a matter to be assessed by an AMS.

DECISION

Paragraph 1 of the Certificate of Determination issued on 4 June 2012 is revoked.
For the reasons given in this decision, paragraphs 2, 3 and 4 of the Certificate of Determination of 4 June 2012 are confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

Bill Roche

Deputy President
7 September 2012

I, PARNEL McADAM, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2012] NSWWCCPD 48

7 September 2012

Key Legal Topics

Areas of Law

Industrial Law

Legal Concepts

Compensation for lump sum

Causation

Costs

Failure to give reasons