Roelofse v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roelofse v State of New South Wales (NSW Police Force) [2025] NSWPIC 164
APPLICANT:	Armand Roelofse
RESPONDENT:	State of New South Wales (New South Wales Police Force)
MEMBER:	Kathryn Camp
DATE OF DECISION:	22 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for future medical treatment; section 60; consequential condition to the right knee; accepted lumbar spine injury and consequential left knee injury; Bouchmouni v Bakhos Matta t/as Western Red Services, Diab v NRMA Ltd, and Murphy v Allity Management Services Pty Ltd considered; Held – the applicant suffered a consequential condition to the right knee as a result of the accepted lumbar spine and left knee injuries; proposed surgery is reasonably necessary as a result of the consequential condition; complex matter; certified 10% uplift for complexity for both parties.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition to his right knee, as a result of the accepted lumbar spine injury on 28 January 2020 and consequential condition to the left knee. 2. The costs of, and incidental, to proposed right knee surgery in the nature of “lateral retinaculum release and meniscal debridement” recommended by Dr Di Nallo, is reasonably necessary treatment as a result of the injury on 28 January 2020. The Commission orders: 3. The respondent is to pay the applicant’s reasonably necessary costs of, and incidental, to right knee surgery recommended by Dr Di Nallo, pursuant to s 60(5) of the Workers Compensation Act 1987. 4. The respondent to pay the applicant’s costs as agreed or assessed. 5. I order an uplift of 10% for complexity in respect of costs for both parties, in accordance with Table 4 of Pt 2 of Sch 6 of the Workers Compensation Regulation 2016. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns two main issues. Firstly, whether the applicant worker sustained a consequential condition to his right knee, as a result of an accepted lumbar spine injury and consequential condition to the left knee. Secondly, whether proposed right knee lateral retinaculum release and meniscal debridement surgery is reasonably necessary as a result of injury, under s 60 of the Workers Compensation Act 1987 (1987 Act).
For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

In or about 2016, Armand Roelofse, the applicant worker, commenced work for the respondent as a police officer.
On 28 January 2020, the applicant sustained an accepted injury to his lumbar spine in the course of his employment. He later suffered an accepted consequential condition to his left knee, on 30 March 2024. On or about July/August 2024, the applicant experienced an onset of pain in his right knee which he claims is a consequence of the accepted injuries.
The respondent’s insurer issued several notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998, declining the claim for injury to the right knee and proposed surgery.
On 14 November 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for lump sum compensation where liability was in dispute.
On 9 December 2024, the respondent lodged a Reply.
On 13 January 2025, the parties attended a preliminary conference.
On 28 February 2025, the parties attended a conciliation conference and arbitration hearing during which oral submissions were made.
On 24 March 2025, the applicant lodged supplementary written submissions.
On 8 April 2025, the respondent lodged supplementary written submissions.

ISSUE FOR DETERMINATION

The following issues are in dispute:
(a) whether the applicant sustained an injury to his right knee as a consequence of the accepted left knee injury (which was a consequence of the accepted original injury on 28 January 2020);
(b) whether the applicant has an entitlement to the costs of, and incidental to, proposed right knee surgery recommended by Dr Di Nallo pursuant to s 60 of the 1987 Act, and
(c) whether the matter should be certified as complex, so that the costs awarded are subject to an increase, and, if so, the percentage increase to be applied.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Tanner, of counsel, appeared for the applicant instructed by Turner Freeman Lawyers. Mr Gaitanis, of counsel, appeared for the respondent instructed by SMK Lawyers.
During the conciliation phase of the proceedings, on 28 February 2025, two preliminary issues were addressed. Firstly, the applicant discontinued the claim of disease injury to his right knee deemed to have occurred on 28 January 2020. Secondly, the respondent’s Application to Lodge Additional Documents (ALAD), dated 21 February 2025, was admitted into proceedings, by consent, on a limited basis. The documents attached to the ALAD that were admitted into the proceedings include:
(a) section 78 notices, dated 16 February 2025 and 19 February 2025;
(b) supplementary report of Dr Tomlinson, dated 28 January 2025, and
(c) clinical records from Goulburn Health Hub Medical Centre on pages 225-228 of the ALAD.
The balance of the documents attached to the ALAD were excluded.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the recorded hearing.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 14 November 2024, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 9 December 2024, and attached documents;
(c)    Direction dated 13 January 2025;
(d)    Application to Lodge Additional Documents, and attachments, lodged by the respondent on 21 February 2025, limited to the documents referred to above at [14];
(e)    Direction, dated 17 March 2025;
(f)    applicant’s submissions, dated 24 March 2025, and
(g)    respondent’s submissions dated 8 April 2025.

Lay evidence

Applicant’s statement

In evidence are four statements made by the applicant, dated 5 December 2022,
3 April 2024, 17 July 2024 and 13 November 2024. I have considered the statement evidence, but will only refer to it where relevant.
In his statement, dated 5 December 2022, the applicant describes the injury to his lumbar spine on 28 January 2020. The applicant states that he attended Carrington Falls for a body recovery police rescue, and he was belayed down the cliffside to retrieve the body. At some point his rope was severed and he fell approximately 2m sustaining several injuries including to his lumbar spine. He underwent radiofrequency ablation and later sacroiliac joint fusion on 2 December 2022.
In his statement, dated 17 July 2024, the applicant states that he underwent surgery of his right knee in 2008. He states that he never had issues with the knee again after the surgery and made a full recovery. He adds that he completed all physical assessments to gain entry and work for the respondent on the front line and later joined Police Rescue.
The applicant refers to the incident on 30 March 2024, when he fell while having a shower. He explains that while trying to pick up a conditioner pump mechanism from the floor he fell hitting his head and onto his left knee. He sustained a grade 2/3 tear of the lateral collateral ligament in his left knee. He states that he purchased a knee brace and “dug out” some old crutches from his shed.
The applicant states that:
“Since the fall I have had shooting intense pains from my left knee area at times, mainly when I attempt to exercise or take my dog for a walk.
I presume that since my right knee has been overcompensating for my left knee, it too has been regularly giving short bursts of intense pain.
I have now secured an MRI date to enquire where and why the pain may originate from.
I now struggle heavily to squat down due to pain from both knees, and struggle to sit in any cross-legged manner whilst on the ground, doing stretching exercises for my back.
I feel demoralised even more now before entering my home gym knowing that I have new pains to contend with apart from my back injury pain.
Even though I try and exercise regularly and have now had to reinitiate with physiotherapy it has become difficult for me to do quick sporadic movements, and I have to think carefully first before doing any such movements.
…
I found … solace in going for long walks, seldom with my dog.
Recently I took my dog for a walk to a park less than two hundred meters from my home and upon arriving there started getting pains in my right knee.”
In his statement, dated 13 November 2024, the applicant states:
“In my thoughts its crystal clear. After I had the slip in the shower, I was unable to weight-bear on my left knee. I was on two crutches for a few days and then went to one crutch and a brace, because it was too slow and painful to use two crutches. I was raw under my arms from the crutches whilst doing simple tasks like shopping. It was easier to push and steer a supermarket trolley with one crutch than with two.
While slowly trying to build up strength in my left knee most of the weight bearing was passed over to my right knee. After several months of doing that, my right knee became painfully sore. I noticed this more and more. Again, to me it is painfully obvious. I had no pain in my right knee before the fall, so the injury had to have happened in the time my left knee was trying to heal.”

Medical evidence

There are a series of medical reports from various treating practitioners and medico-legal reports. I have considered these reports and will refer to the medical evidence that the parties rely on in their submissions.

Clinical notes

In evidence are a series of clinical notes from the applicant’s treating general practitioner, Dr Maria Alvarez.
On 17 May 2016, it records that the applicant had “pain on knees got swollen and painful – no trauma”. It notes pain then migrated to the shoulders and neck, extremely painful joints all over. On examination, Dr Alvarez records knee ROM-good and no swelling.
On 23 May 2016, it records that the applicant has “persistent and severe pain on both knees limping” and “not responding to Panadeine forte”. It also notes that the shoulders are painful and right thumb is tender. It notes that this “all came on suddenly in the past month”. It is further noted that ROM-good, limited pain on all joints and no swelling.
On 24 May 2016, it further records that the applicant is “in severe extreme pain on knees and wrist unable to get up extremely painful joints”. It notes that the applicant is not responding to Targin. There is no swelling. ROM limited to pain on knees and wrists. The applicant is referred for an X-ray.
On 25 May 2016, there are three separate entries recorded. Firstly, it records that the applicant has “pain on both knees, left shoulder and right wrist persistent”. That the pain is managed with Targin and Endone. It notes that the applicant is limping and has mild swelling of knees. The ROM is limited on the shoulders, knees and wrist. It further records “? Explosive nature of all the joints pain occurred suddenly”. Secondly, it also records that the applicant was “worried about losing his slot in the police academy” and that he was informed about possible causes and need for specialist review “? cause-sudden and severe pain on all joints”. Thirdly, it records that the applicant “does not want me to inform police academy regarding his medical issue [and I] informed him I cannot give any information without consent”.

MRI

In evidence is an MRI of the right knee, dated 23 July 2024. The clinical history records “increasing pain with wright-bearing. Patella following knee injury. ?internal derangement, meniscal injury”.
The report records findings of a degenerative tear of the medial meniscus, moderate patellofemoral osteoarthritis with mild changes in the medial femoral condyle. It notes a ganglion cyst posterior to the medial compartment and cystic change beneath the tibial attachment of the PCL with bone marrow oedema.

Dr St Croix

In evidence is an undated report from Dr Jennifer St Croix, the applicant’s treating general practitioner. Dr St Croix states:
“Mr Roelofse has reported that his right knee had become injured secondary to his left knee injury. He has stated that increased reliance and use of his right leg to compensate for left knee disability has led to acute worsening of right knee pain.
Increased use and applied pressure on right extremity to compensate for inability to use left knee resulted in findings of wear related meniscal tear, and associated findings such as marrow oedema, and chondral wear in patellofemoral compartment. Mr Roelofse denies any problems or pain associated with his right knee until several weeks following his left knee injury where he was solely weight-bearing on his right side.”
Dr St Croix adds that there are “[n]o pre-existing condition noted”. She further adds that the “[o]nset of symptoms chronologically support development of symptoms due to increased use, reliance following the left knee injury. The right knee was asymptomatic through career thus far”.

Dr Di Nallo

In evidence are several reports from Dr Martin Sebastian Di Nallo, the applicant’s treating orthopaedic surgeon.
In his report of 1 August 2024, Dr Di Nallo states that he has seen the applicant who has been experiencing pain in the left knee which has started to become worse. He also states that the applicant is “is referring to discomfort in the right knee”. He adds that:
“I have seen that he has done an MRI recently showing a tear in his meniscus. I have explained to Armand that his insurance has not authorised me to see him for his right knee. Hence, I cannot make any comment about it.”
In his report of 15 August 2024, Dr Di Nallo states the problem is “[p]pain in the right knee plus pain in the left knee”. He states that the plan is to “[c]ontinue rehabilitation for the left knee. Proposed surgery for the right knee to perform a lateral retinaculum release +/- meniscal debridement”. He states that:
“He is mentioning pain in his right knee. As you are aware he was non-weight-bearing and walking improperly for a long time due to the left knee. He has been heavily relying on the right knee. The right knee has become quite painful a few weeks ago. He refers that the pain is mostly at the front and the inside. The pain comes and goes and it is hard for him to determine when it is going to happen. He usually walks 20 minutes every day with his dog and sometimes at the beginning or the end of the walk, there is significant pain.
The left knee is asymptomatic. Regarding the right knee there is significant discomfort when trying to medialise the patella. When lateralising the patella, putting pressure on the lateral facet causes significant discomfort. There is no pain when palpating the lateral femorotibial joint line. There is mild discomfort when palpating the attachment of the RTB band and the Gerdy’s tubercle. There is mild discomfort at the level of the medial femorotibial compartment.
…
The MRI shows that he presents with a mild translation of the patella or the trochlea with thinning of the cartilage in the lateral facet. There appears to be a small plaque in the area that might also explain this sharp pain that comes and goes. Regarding the medial meniscus, this is torn and a piece of it has gone under the body of the medial meniscus. There is a cyst behind the posterior horn of the medial meniscus.
I have reviewed the old x-rays showing that he has bilateral mild varus alignment.
…”
Dr Di Nallo adds that most of the pain arises from the patellofemoral joint. He states it would be his advice that the applicant have a “lateral retinaculum release in order to decompress the patella. In the same setting, I might perform a medial partial meniscectomy which will depend on the symptoms when the time for surgery comes”. He further adds that “[a]t some point in time, he is going to require further surgery on his knee”.
Dr Di Nallo states that the applicant is taking Targin for his lower back, which is helping for the knee. He also takes Panadol for the right knee.
In his report of 16 August 2024, Dr Di Nallo indicates the costs for the right knee lateral retinaculum release +/- meniscal debridement will cost $2,640 and $1,980 respectively.
In his report of 19 August 2024, Dr Di Nallo responds to the following question:
“How does the right knee injury diagnosis relate to the accepted condition of the left knee? Please provide your clinical rationale.
a) Meniscus injury:
b) Patella/Patella translation:”
In response, Dr Di Nallo states that:
“The applicant has been non-weight-bearing in the left leg causing more pressure on the right knee. There is a meniscal tear and pain arising from the lateral facet of the patella. He has been overloading his right knee making both these conditions symptomatic.”
In response to a request to comment on any pre-existing conditions and age-related changes that have contributed to the development of the right knee injury, Dr Di Nallo responds:
“I’m not aware of any pre-existing condition. Armand is a 50-year-old gentleman who will naturally have wear and tear in his joint. However, he states that he was previously asymptomatic. For this reason, I apply the eggshell-skull rule, and I consider these injuries to be work related.”
In response to a further question as to whether the applicant will require any treatment for the right knee injury and how much improvement can be anticipated, Dr Di Nallo states:
“As explained in the letter he will require partial meniscectomy and he will require lateral release of the retinaculum in order to decompress the patella. I am hoping that this will give him a pain-free knee. However, there is a chance that mild discomfort might be left.”
In response to a question about previous treatments undertaken and whether alternative treatments have been exhausted, Dr Di Nallo states:
“There is no other treatment that has been provided for him. Armand refers to being in too much pain and he is not interested in pursuing non-surgical treatments. The torn meniscus has been quite symptomatic for over four months and has not improved with non-surgical methods. I am afraid it might not improve that way. When it comes to the tightness of the lateral retinaculum, it is going to be hard for him to perform stretching of the tissues with only rehabilitation.”

Dr Herald

In evidence is a report from Dr Jonathan Herald, orthopaedic surgeon, qualified by the applicant, dated 4 October 2024. Dr Herald records a history of the 28 January 2020 incident and injury to his lumbar spine, together with the 30 March 2024 incident and consequential condition to his left knee.
Dr Herald records that the applicant was on crutches for about two weeks and for three weeks after the left knee injury he was given a knee brace. He adds that:
“As he had to hop around the house and avoid loading on his left knee, he eventually developed pain over his right knee. He first noticed this in July 2024. He saw Dr Di Nallo for this and he diagnosed him with patella maltracking and advised surgery, but this has not been approved. In 2008, he had a sports injury where he injured his right knee.
He eventually had to undergo a right knee arthroscopy. A few weeks after the surgery, he recovered completely and was back doing full duties at work. Currently, he continues to have pain and stiffness over his back and pain over both of his knees. He is using strong painkillers for his back which are also helping his knees. He is not doing any physiotherapy at the moment.”

Dr Herald provides an assessment of right knee medial meniscal tear with chondromalacia patella. He states that the injuries to his back and both knees have occurred as a result of the applicant’s workplace injury.
In response to a question on the cause of the injury, Dr Herald states that the injuries that the applicant has experienced and the progressive degenerative changes that have occurred in these areas have been caused and accelerated by the nature of his employment.
In response to a question as to whether employment was the main contributing factor, Dr Herald said that the applicant’s:
“…employment as a police officer and the fact that he is unable to use his back to help with lifting with his employment requires him to overload his knees as part of his employment, trying to reach, bend, get out of low chairs or seats, kneeling, squatting, running, jumping and so forth.”
In response to a question about whether future treatment would be of benefit to the applicant, including Dr Di Nallo’s proposed surgery, Dr Herald states:
“At some time in the future, he may require arthroscopic procedures to his knees such as meniscectomies or debridement or lateral releases to help with patellofemoral tracking or even knee replacements in the future. In regard to his back, he may require decompression and fusion operations in the future. I would generally try and avoid surgery except as a last resort. I note that Dr Di Nallo has requested a lateral release to decompress the patella and a medial partial meniscectomy. This will be of benefit, but as stated, I would generally consider that as a last resort, assuming all other treatment options have failed.”

Dr Tomlinson

In evidence are two reports from Dr Jan Tomlinson, consultant orthopaedic surgeon, qualified by the respondent, dated 4 November 2024 and 28 January 2025. In his first report, Dr Tomlinson provides a history of the mechanism of injury on 28 January 2020 to the lumbar spine and sequence of events, including injury to the left knee on 30 March 2024.
Dr Tomlinson records that the applicant was on crutches for three to four days and remained in a brace for two to three weeks, during this time he returned to his usual activities.
Dr Tomlinson records that the applicant reports that in late July/early August while walking his dog he noticed pain in his right knee. She states that there was no precipitating event. Dr Tomlinson records that the applicant reported that:
“towards the end of the walk he would have a sudden sharp shooting pain radiating from the knee up into the buttock. This would persist for three to four steps. He would then need to stop. This pain would ease to a dull ache…[and] on his return home he may have three or four further episodes of this pain.”
Dr Tomlinson further records that the applicant advises of ongoing pain in the right knee, but only “when squatting”. She notes that the applicant advises that his “right knee will give way intermittently. He has occasional discomfort with loading”.
Dr Tomlinson reports that the applicant had surgery to his right knee in 2007, but that he “does not recall why the surgery was performed”. She adds that “[f]ollowing the procedure his right symptoms resolved with no ongoing pain until the current time”. She later adds that the applicant states there was no ongoing symptoms subsequent to the surgery and no further concerns until July/August 2024.
Dr Tomlinson provides a diagnosis of right knee “exacerbation of pre-existing degenerative arthritis, which has likely occurred as a consequence of a prior meniscal injury of 2007”. In response to a request to comment on causation, Dr Tomlinson states that the applicant advises “onset of symptoms in his right knee while simply walking” and that she “cannot relate this in any way to his left knee condition”. She adds:
“I do not consider there was any relationship between the right knee diagnosis and left knee. Mr Roelofse reported injury to the left knee on 30 March 2024. He was on crutches for three to four days. He had difficulty weightbearing for six to eight weeks, approximately late May. He advises onset of right knee symptoms in August with no precipitating event other than walking.”
Dr Tomlinson comments on pre-existing conditions that may have contributed to the development of the right knee injury. She states that the applicant underwent right knee surgery in 2007. That he has undertaken sports, such as running and soccer. She finds “[a]ll of these factors are likely to have contributed to his right knee symptoms”. She later states that she attributes the applicant’s symptoms to “an exacerbation of a pre-existing medical condition. I cannot identify any work-related injury”.
In response to a question about treatment required for the right knee and how much improvement is anticipated, Dr Tomlinson said:
“There is evidence of severe patellofemoral arthritis which has not occurred as a consequence of this injury. I do not consider a lateral release is appropriate in the setting severe arthritis. I consider strengthening exercises would be the only treatment recommended.”
Dr Tomlinson finally states that:
“Mr Roelofse has degenerative arthritis of post-traumatic arthritis in the right knee. With the passage of time his symptoms will progress. He has not worked for over two years. He will not be returning to work. It is not his right knee which is preventing this.”
In her supplementary report, Dr Tomlinson responds to the following question:
“Please address the various diagnoses in respect of the right knee injury that are provided within the radiology reports as well as those of Dr Di Nallo and please confirm whether you are in agreement.
At the time of my view, Mr Roelofse presented as a 50-year-old man who reported injury to his right knee as a consequence of a left knee injury. He reported no particular history of injury to the right knee. He advised undergoing prior arthroscopy of his right knee in 2007, but could not recall the indications for arthroscopy nor his pre-operative symptoms but advised no ongoing symptoms until approximately July/August 2024 following injury to the left knee. I agree with Dr Herald and Dr Di Nallo that there is, indeed, a degenerative tear present in the medial meniscus. I consider this is related to the pre-existing degenerative change, is not an acute injury and is not relevant to his current presentation.”
Dr Tomlinson also responds to a request to confirm her diagnosis in relation to the right knee, and states:
“I confirm my diagnosis of exacerbation of pre-existing degenerative arthritis. My opinion remains the same. As documented, I consider the meniscal tear is irrelevant to his presentation and has occurred at some time as a consequence of the degenerative arthritis. I do however apologise for not mentioning this previously.”
Dr Tomlinson further responds to a request to confirm her opinion as to whether the applicant’s right knee resulted from his employment with the respondent and/or his left knee injury, and states:
“As documented at the time of my prior report, I do not consider there is any relationship between the right knee diagnosis, the left knee injury and as such, I do not consider there is any relationship of his work to his right knee injury. I consider this is a consequence of his previous injury in 2007 and the natural history following the injury and the surgery.”

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant submits that the primary issue concerns liability and whether he developed a consequential condition affecting his right knee as a result of an undisputed injury to his lumbar spine on 28 January 2020 and also a subsequent consequential condition affecting his left knee which resulted from a fall on 30 March 2024. The secondary issue is whether there is a compensable consequential condition affecting the right knee and whether the treatment proposed by Dr Di Nallo is reasonably necessary. In support, the applicant relies on the opinions of Dr Herald, Dr Di Nallo, Dr St Croix and his statement evidence.
The applicant refers to his supplementary statement dated 13 November 2024, and his account of difficulties in the wake of his left knee injury. This evidence, the applicant submits, is not disputed. The applicant refers to his version of the onset of pain in the right knee. The applicant then refers to the previous complaints of right knee difficulties in 2016 in the clinical notes but submits there is no other evidence suggesting ongoing symptoms affecting the right knee.
The applicant refers to Dr Herald’s report of 4 October 2024, where he records a reference to the twisting of his left knee and that for two weeks thereafter on crutches and three weeks after the injury given a knee brace. There is also evidence of abnormalities relating to ambulation which was noticed in July 2024.
The applicant relies on the report of Dr Herald in support of the relationship between the right knee condition and the subject injury. The applicant notes Dr Herald’s comments on a nature and conditions injury, but confirms that that is not the applicant’s case. Dr Herald states there is overload on the applicant’s knees as part of his activities in employment. The applicant submits that while he does not rely on those activities in employment, it would follow as a matter of common sense that the applicant was suffering from the effects of his left knee injury and had additional load bearing on the right knee.
The applicant refers to the evidence of Dr Di Nallo. On 1 August 2024, Dr Di Nallo noted ongoing pain in the left knee but also that the applicant was referring to discomfort in the right knee. On 15 August 2024, Dr Di Nallo explicitly addresses the problem of right knee pain and that it has become quite painful and notes the pain comes and goes. He notes that there is pain sometimes at the beginning or end of a 20 minute walk, which the applicant submits is “walking with a gait that is altered by reason of the left knee weakness.” The applicant then refers to Dr Di Nallo’s advice on the proposed surgery. On 19 August 2024, Dr Di Nallo provides an opinion on the cause of the right knee injury which he states has been due to overloading of the right knee due to non-weight bearing on the left leg.
The applicant submits whether or not Dr Di Nallo was aware of any pre-existing condition in the right knee does not alter the cause for the onset of the symptoms. The applicant had not required any treatment for his right knee for four years prior to the lumbar spine injury. In this regard the applicant notes that from 17 May 2016 to 25 May 2016, which is a period of eight days, when he was last seen for complaint in the knees.
The applicant contends that conservative measures are not going to provide adequate relief for a torn meniscus and the proposed surgery, in Dr Di Nallo’s view, is likely to provide him with a pain-free knee or alternatively only mild discomfort. The applicant submits that this outcome of surgery represents an appropriate reason for the proposed treatment.
The applicant submits that it is common experience that an injury to one limb results in protective measures and the placement of greater reliance on the other limb. Dr St Croix provides a history which is consistent with the applicant’s evidence, that the right knee became injured secondary to the left knee due to an increase reliance on the right leg to compensate for the left knee disability. There is no countervailing version for the onset of symptoms in the right knee. The condition of the right knee is consequential in the wake of the original lumbar spine injury and then the related left knee event. While Dr St Croix states that there is no pre-existing condition, there was no treatment of the right knee for a period of eight years prior to the onset of his right knee condition in July 2024.
The applicant refers to the evidence of Dr Tomlinson. Dr Tomlinson has a history of the applicant’s injuries to his lumbar spine and left knee, and the severe pain in the left knee and inability to weight-bear. She notes the use of crutches and a brace for the left knee injury, and the activity of walking the dog in late July/early August. However, there has been a complete misdirection in that Dr Tomlinson somehow deems onset of right knee pain occurring while the applicant is walking his dog as entirely unrelated to the workplace. The applicant contends that consequential conditions may arise in a multitude of circumstances. The question is whether the pathology and the symptoms in the right knee are attributable to the original back injury and, in particular, the weakness in the left leg for which the respondent is liable.
The applicant adds that Dr Tomlinson notes symptoms of the right knee giving way intermittently, confirming the deterioration of the condition. She also notes that the applicant underwent right knee surgery in 2007 but that his symptoms resolved with no ongoing pain until the current time. Dr Tomlinson further notes difficulty weight-bearing due to ongoing pain in the left knee. However, the applicant submits Dr Tomlinson has failed to enquire whether that difficulty would have placed an additional load on the applicant’s right leg and knee which would explain the onset of symptoms in July 2024. Dr Harold, Dr Di Nallo and Dr St Croix are satisfied that that is the explanation. It is difficult to understand Dr Tomlinson’s opinion when she acknowledges that there must have been an exacerbation and the question is what happened between the surgery in 2007 and onset of right knee symptoms in July 2024 to constitute the exacerbation because the applicant was essentially pain-free.
The applicant submits that he only needs to establish the material contribution of a work-related nature to establish a consequential condition. The manifestation of the symptoms whilst walking does not alter the fact that damage was done when there was abnormal load bearing.
Dr Tomlinson attributes the applicant’s symptoms to an exacerbation of a pre-existing medical condition, but does not explain what that exacerbation is or when it occurred or in what circumstances. She refers to evidence of patellofemoral arthritis but not to the right knee tear, but states that the lateral release is not appropriate in the setting of severe arthritis. There is no explanation and this is a bare ipse dixit. It is an opinion expressed without exposing any path of reasoning. She has not provided any reasoned opinion as to why Dr Di Nallo’s recommendation for proposed surgery is wrong. She merely states that strengthening exercises would be the only treatment recommended. However, it is not explained how strengthening exercise resolve a tear.
Dr Tomlinson states that the applicant reported no particular history of injury to the right knee and there is a misdirection about the requirement of a specific injury as opposed to gradual onset as a result of abnormal load bearing. However, she does not explain if the applicant’s condition is related to pre-existing degenerative change and why he did not require treatment for a period of eight years prior to the left knee problem and need to exert additional weight on the right knee. She confirms a diagnosis of exacerbation without explaining when and in what circumstances it occurred.
In her subsequent report, there is an acknowledgement of a tear and that this has occurred at some time as a consequence of degenerative arthritis. The applicant submits that Dr Tomlinson’s opinion is a bear ipse dixit. There is no attempt to address the fact that the applicant was asymptotic for a period of eight years between 2016 and July 2024, and the fact that in 2016 the condition could hardly be considered serious because it only warranted treatment for a period of eight days.
The applicant refers to the radiological evidence. The applicant was experiencing right knee problems which warranted investigation in July 2024, in the nature of an MRI which showed degenerative tear of the medial meniscus. The applicant refers to the clinical history of the radiologist of increasing pain with weight-bearing.
The applicant submits that the evidence of abnormal load bearing and the opinions of the medical practitioners and the timing of the onset of symptoms warranting investigation in July 2024 indicate a clear and material connection between the left knee weakness and the onset of right knee symptoms in July 2024.
The applicant concedes that Dr Herald comments on the reasonable necessity of the proposed surgery. The applicant submits that Dr Herald is not the treating doctor and has seen the applicant on a single occasion. His approach is that he would generally try to avoid surgery except as a last resort but notes that the proposed surgery will be of benefit. His preference for surgery as a last resort does not exclude surgery as reasonably necessary.
The applicant submits that Dr Di Nallo explains that the applicant is in pain and non-surgical treatments plainly would provoke pain. Dr Di Nallo does not consider non-surgical methods are going to result in an improvement. Further, the applicant submits, in a case under s 60 there is no need to establish that the proposed treatment is the only treatment. Different practitioners have different views, and Dr Di Nallo’s opinion should be preferred.

Respondent’s submissions

The respondent refers to the principles on establishing a consequential condition, in particular the decision of Pincham v Crew on Call Australia [2024] NSWPIC 679, at [63].
The respondent submits that there needs to be an evaluation of the evidence. There are significant gaps in the evidence which have not been addressed by the applicant. There is a lack of persisting symptoms or lack of symptoms. The applicant is required to discharge the onus of proof on the claimed consequential condition.
The respondent refers to the applicant’s statement evidence, that records pain from the left knee when he attempts to exercise or walk his dog. The applicant submits that there is this overwhelming carrying of an abnormal load or weight-bearing because of the left knee, but the applicant in his statement evidence says up until the time he felt right knee pain he was doing other things like walking the dog. The applicant was able to exercise his life in a normal fashion, attending to his back and left knee, and then he finds he suffered pain for the first time when walking his dog 200m from his home. The symptoms are not persistent, they are intermittent. The applicant does not state that the pain or symptoms are continuous or overwhelming. This fits with Dr Tomlinson’s opinion that the symptoms are merely an aggravation or exacerbation of a pre-existing degenerative arthritis that is referrable to the walking but also prior knee surgery in 2007, and sports such as running and soccer.
The respondent refers to the MRI of the right knee, dated 23 July 2024. That report records a mild degenerative tear of the medial meniscus and moderate patellofemoral osteoarthritis with mild changes. The osteoarthritis was present before March 2024. There is also a cyst.
The respondent contends that the applicant does not say anything about his prior history with his right knee and the doctors are not alive to it, other than Dr Herald who ignores it and Dr Tomlinson who comments on it. However, the applicant attended on Dr Alvarez on
17 May 2016 where a history is recorded of pain on the knees, swollen and no trauma. Six days later, on 23 May 2016, the applicant attends on Dr Alvarez again where it is recorded persistent and severe pain on both knees and there is limping all of which came on suddenly in the past month. This is before the applicant commenced employment with the respondent. This is a constitutional issue and very familiar to what happened in 2024. On 24 May 2016, the applicant again attends on Dr Alvarez where she records severe extreme pain on knees and not responding to Targin and that the applicant was awaiting an X-ray. On 25 May 2016, the applicant again attends on Dr Alvarez where she records pain on both knees, limping and mild swelling. This is about eight or nine years after the arthroscopy, in 2007 or 2008, when he has further pain in his knees and before he starts employment with the respondent.

There is an issue with this pain occurring suddenly. The respondent refers to the clinical entry that the applicant is worried about losing his slot in the police academy and does not want to disclose his medical issue, when he commences in December 2016. The respondent seeks that an inference be drawn that there is a very good reason why there are no complaints about the right knee while the applicant was employed with the police service because this was a problem that he had before he commenced with the police.
The respondent submits that this is a pre-existing right knee problem since before his employment with the respondent in 2016 and throughout that period, but there is now an attempt to attribute this to employment as a consequential condition.
The applicant does not address any evidence regarding the 2007, 2008 problem or the arthroscopy or the 2016 material about not telling the academy about the issues upon commencement of employment. The applicant has the onus to prove and explain these issues and satisfy that there is a nexus between his left knee and his right knee. However, the applicant is seeking an inference be drawn that the issues in the right knee are due to the left knee due to abnormal weight-bearing, at a time when he is continuing to do home exercises and walking his dog.
The respondent refers to the evidence of Dr Herald. This report cannot be relied on. Dr Herald simply says that the cause of the consequential condition is his employment as a police officer. He refers to the nature and conditions of his employment, he does not deal with the consequential condition argument.
The respondent refers to Dr Di Nallo’s report of 15 August 2024, in support of an argument that the pain is intermittent and indicative of a constitutional problem or a pre-existing degenerative problem. It is not a result of the left knee overload because he tells the doctor and the doctor takes some history that the pain comes and goes and it is hard to determine when it is going to happen. The applicant commenced employment in 2016 and in 2024 the pain emerges again when he is walking his dog. There is no real explanation from Dr Di Nallo about why it is that there is a piece of the medial meniscus that has gone under the body of the medial meniscus. He talks about a cyst. Dr Herald does not give any comfort about the cyst or the piece of meniscus going under the body of the medial meniscus.
The respondent submits that there is also uncertainty about the necessity for the surgery, because the exact nature of the intervention is unclear because Dr Di Nallo says most of the pain arises from the patellofemoral joint and his advice would be that a lateral retinaculum release is needed in order to decompress the patella. He also adds that he might perform a medial partial meniscectomy which will depend on symptoms at the time of surgery, which the respondent submits that is when the torn piece will be cleared. There is no explanation as to whether that discrete piece of damage is due to the osteoarthritis or whether it is due to tear or whether it is due to a longstanding problem or the load that the applicant took on after the left knee injury. This is because Dr Di Nallo does not know about the pre-existing issue. Had Dr Di Nallo been alive to that he may have answered the question.
The respondent adds that Dr Tomlinson states that there was no precipitating event for the right knee symptoms, and pain was noticed at the end of walking the dog. Dr Tomlinson views this as an exacerbation of pre-existing degenerative arthritis, which she could not relate to the right knee condition because the onset of symptoms in the right knee were simply when walking. Dr Tomlinson adds that the applicant has undertaken sports, such as running and soccer, and all of these factors are likely to have contributed to the right knee symptoms. Dr Tomlinson does not consider the proposed release surgery is appropriate in the setting of severe arthritis.
The respondent contends that the symptoms in the right knee come and go, whether it is at the beginning or end of walking the dog. This is an exacerbation of pre-existing degenerative arthritis which fits with the pre-existing issues in 2007 and 2016, as opposed to some kind of overloading. There is no precipitating event other than routine walking. The condition is a mild degenerative tear of the medial meniscus in the context of a lot of osteoarthritis.
The respondent submits that Dr Herald considered that the proposed surgery should only be considered as a last resort if all other treatment options have failed. The applicant is not interested in conservative treatments, and it is unclear the extent to which physiotherapy or injections have been undertaken nor is it clear what the state of play with medications or anything else that has been attempted. There is no elucidation of those other treatment options and the applicant is not interested in conservative treatment in the context of intermittent pain.
The respondent contends that Dr Di Nallo says that the decision on the meniscectomy really depends on what symptoms are found at the time of surgery, which is underwhelming and not satisfactory. This uncertainty undermines the necessity for the surgery. In circumstances where there is intermittent pain, there is a lack of evidence about what other options have been explored, the proposed intervention is not clearly established on the evidence. The doctors cannot give any comfort that the surgery is going to resolve the problems, the applicant may still be left with discomfort. The doctors don’t report on whether the proposed surgery is going to mend a torn meniscus. The respondent submits that the reality is a torn medial meniscus can be repaired by strengthening and non-operative procedures and no one has explored that.

Applicant’s submissions in reply

The applicant refers to the surgery proposed by Dr Di Nallo. It is not uncommon for a surgeon to suggest further work is required once the operation has been performed. The primary procedure is the lateral retinaculum release in order to decompress the patella and depending on what he finds at that stage whether a medial partial meniscectomy will be needed. It is open to find that the proposed surgeries are reasonably necessary, the latter surgery being a matter for clinical judgment at the time of the operation.
The applicant submits that he had an asymptomatic right knee, which has been rendered symptomatic. The symptoms arrive from the pathology that has been revealed in the MRI on 23 July 2024. That pathology was not troubling the applicant prior 2024 fall in the shower.
The applicant provided a history of the 2007 surgery to Dr Tomlinson and Dr Herald. There was a right knee surgery in 2007, which did not warrant any further treatment for many years. The clinical notes of 2016 relied on by the respondent are of no relevance when they look at the treatment in respect of both knees. It is not a condition that is specific to the right knee arthroscopy performed in 2007. There is no evidence of any persisting right knee problems and then for another period of at least eight years. The only complaint of right knee symptoms is following the left knee injury in March 2024. It cannot be disputed that the applicant placed additional load on his right knee, which is supported by Dr St Croix,
Dr Herald and Dr Di Nallo. There is no need to point to pathology when finding a consequential condition. All that is needed are symptoms affecting a body part that that condition is causally related to the subject injury. It is the symptoms that the applicant has experienced from July 2024 that need to be addressed.
The treating surgeon has provided an opinion as to a method of treatment which will relieve his symptoms. Dr Tomlinson does not dispute that the surgery would relieve his symptoms. Her view is that she would not perform an operation given the extent of the osteoarthritis.
Dr Herald, as we know, says that that surgery is a last resort, that is his particular approach but what he did say is that the applicant may require arthroscopic procedures to his knees which is what Dr Di Nallo proposed. It’s only a question of timing and Dr Di Nallo explains why in this case it is appropriate to proceed now. Dr Tomlinson’s position is not that it should proceed later, she just doesn’t acknowledge the surgery which two surgeons Dr Herald and Dr Di Nallo accept as appropriate.
In a case of treatment, one doesn’t have to show that this is the only treatment. All the applicant needs to show is that the treatment is reasonably necessary and Dr Di Nallo has explained why this is the exclusively appropriate treatment and to proceed forthwith.

FINDINGS AND REASONS

Consequential condition

Relevant law

The Commission has issued many decisions concerning consequential conditions and the applicable law. These decisions confirm that it is not necessary that an applicant worker establish that an alleged consequential condition is an “injury” within the meaning of s 4 of the 1987 Act.[1] Nor is it necessary for an applicant to establish that the employment was a substantial contributing factor within s 9A of the 1987 Act or the main contributing factor for a disease injury. An applicant need only establish that the consequential condition resulted from the accepted injury. Pathology need not necessarily be identified.[2]
[1] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni); Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar).
[2] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Roche DP said:
“It is accepted law that if an ‘injury’ is aggravated by medical treatment, or if the treatment adopted to remedy the injury causes a secondary condition, the total condition is attributable to the original incident or event (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR at 172).”
And:
“… It was no part of Mr Bouchmouni’s duties to have surgery on his knee or to walk with an altered gait. Those things arose because he suffered an injury to his knee in the course of his employment. If a further medical condition has resulted from the treatment of the knee injury (or from an altered gait because of knee symptoms), as has happened in this case, that condition (the back condition) has resulted from the injury but is not itself an ‘injury’.”[4]
[3] Bouchmouni.
[4] Bouchmouni, [70], [73] (per Roche DP).
A common sense consideration of the chain of causation is required in determining a consequential condition.[5] This requires consideration and determination of questions of fact.[6] In Pincham v Crew on Call Australia,[7] relying on Kooragang Cement Pty Ltd v Bates[8], Principal Member Bamber stated:[9]
“What is important is whether the evidence in the case supports a finding of a causal connection between the agreed work injury to the right knee and the other so-called consequential conditions. At [463G] in Kooragang it was stated ‘each case where causation is an issue in a worker's compensation claim, must be determined on its own facts’. Kirby P said, ‘what is required is a commonsense evaluation of the causal chain’. This does not mean a Member can apply her views of commonsense as to the cause of injury, but that she needs to evaluate the evidence.”[10]
[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 464C (Kooragang).
[6] State of New South Wales v Bishop [2014] NSWCA 354.
[7] [2024] NSWPIC 679.
[8] (1994) 35 NSWLR 452.
[9] (1994) 35 NSWLR 452.
[10] Pincham v Crew on Call Australia [2024] NSWPIC 679, [63].
It is well accepted that the applicant bears the onus of proof, to establish his case on the balance of probabilities.[11] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[12] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen(1940) 63 CLR 691 at 712.”[13]
[11] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[12] [2008] NSWCA 246.
[13] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

It is accepted that the applicant sustained a lumbar spine injury in 2020 and as a consequence of that injury he suffered a consequential condition in his left knee on
24 March 2024. What is disputed is whether the applicant sustained a compensable consequential condition in respect of the right knee, arising from those accepted injuries.
In respect of the right knee, the following facts are not in dispute. It is agreed that the applicant had previous right knee symptoms due to a sports related injury, which resulted in a right knee arthroscopy in 2007/8. It is not disputed that the only evidence of right knee complaint post that surgery and prior to the onset of symptoms in that knee on or about July 2024 is found in the clinical notes of May 2016. It is further not disputed that the applicant sought treatment and investigation of his right knee on or about July 2024, approximately four months later.

2016 clinical notes

I accept the applicant’s submissions that the clinical notes in 2016 are of no relevance or are immaterial to the present symptoms in the right knee. There are four clinical entries from 17 May to 25 May 2016, spanning over a period of nine days. The records on 17 May, 23 May and 24 May 2016 each notes pain on both knees, no swelling and a good range of motion. It is also recorded that there is pain to other body parts or “extremely painful joints” or “limited pain on all joints”, suggestive that the pain is not exclusive to the knees and certainly not limited to the right knee. It is in the fourth entry on 25 May 2016, where it is recorded that pain is persisting “on both knees, left shoulder and right wrist” and that range of motion is limited for these body parts. It is also recorded that the applicant is limping and has mild swelling of the knees. It is further noted that the applicant required specialist review to address the possible causes and sudden onset of severe pain on “all joints”.
I also accept that the medico-legal and treating reports are silent on the May 2016 clinical records. However, having regard to the actual clinical entry records, I am satisfied that the records are immaterial. Firstly, there is no evidence to suggest that that pain recorded in the entries continued or gave rise to further treatment post 25 May 2016. The parties did not take me to any subsequent evidence regarding further treatment or investigation following the symptoms in May 2016. Indeed, the applicant’s first complaint of pain arising from the right knee following May 2016 is in July 2024; which post-dates the March 2024 fall injuring the left knee. Secondly, as the applicant submits, the clinical entries do not address a condition specific to the right knee arthroscopy undertaken in 2007/8. Thirdly, the records appear to address a global issue to the applicant’s joints which is not exclusively limited to the knees.

Reliability of the applicant

To the extent that the respondent sought to raise an issue with the reliability of the applicant in the reporting of pain in the right knee, I do not accept that submission. This submission was largely founded on the basis that the clinical entry on 25 May 2016 recorded the applicant’s request not to inform the Police Academy of his complaint of pain for concern he may loose his “slot” in the academy. It is also founded on an apparent reluctance to report a history of the 2007/2008 right knee incident and surgery to medical experts.
It is helpful to put the 25 May 2016 clinical entry in context. It is not disputed that the applicant during this period of time was part-way through the application process to join the Police Academy which included a medical clearance. It is also not disputed that the applicant was successful in gaining a “slot” in the academy and commenced employment later that year.
I am unable to draw an inference that the applicant is an unreliable witness. I am not satisfied that the applicant’s fear of medical disclosure to the Police Academy supports an inference that he failed to make complaint about his right knee during the course of his employment with the respondent. That is because, firstly, notwithstanding his reservations about disclosure, he still attended on medical practitioners for treatment for a variety of ailments over the course of his employment with the respondent. Secondly, the clinical entries at most suggest a reluctance to disclose medical conditions in May 2016 while he was in the process of obtaining clearance to join the Police Academy in 2016. The applicant was successful in joining the Police Academy in late 2016 and his fears of losing a “slot” in the academy would have likely resolved shortly thereafter. Thirdly, for the reasons stated above, I am unable to find that the clinical entries are demonstrative of degeneration in the right knee as a result of the 2008 surgery or otherwise. The clinical entries do not have any direct bearing on the applicant’s present right knee condition or even the 2007/8 issues. Fourthly, the May 2016 clinical entries are eight years prior to the onset of symptoms in the right knee in July/August 2024. This is understandable when the overwhelming evidence indicates the applicant was asymptomatic in the right knee during that period of time. Lastly, the applicant disclosed a history of 2007/8 right knee issues and surgery in his statement evidence and medical history reported to both Dr Herald and Dr Tomlinson. This is confirmed by the evidence of Dr Herald and Dr Tomlinson.

Causation

I accept the applicant’s general submissions that due to additional load bearing as a result of the left knee injury the applicant sustained a consequential condition in the right knee. This is demonstrated by the medical evidence, which I will address below. It is also supported by the histories recorded by the medico-legal experts and the applicant’s statement evidence.
Firstly, as submitted by the applicant, it is not disputed that the applicant had ongoing pain in his left knee. The applicant states in his statement of 17 July 2024 that since the fall in March 2024 he has had “shooting intense pains” in his left knee mainly when he attempts to exercise or take his dog for a walk. In August 2024, Dr Di Nallo reported symptoms in the left knee had started to become worse and persisted.
Secondly, it is accepted that the applicant had a period of time using crutches and a brace following the fall on his left knee in March 2024 and that he had been unable to weight bear on his left leg. In his statement of 17 July 2024 he states that his right knee had been overcompensating for his left knee and “regularly giving short bursts of intense pain”. He provides an example of that pain after walking his dog less than 200m. In his statement of
13 November 2024, the applicant states that he was unable to weight-bear on his left knee following the fall in March 2024. He states that he was on two crutches for a few days, then one crutch and a brace. He adds that while “trying to build up strength” in his left knee “most of the weight bearing was passed over to [his] right knee”. He states that after several months of “doing that” his right knee became painfully sore.
The applicant’s statement evidence is consistent with the medical histories. The MRI of the right knee, on 23 July 2024, records a history of increasing pain “with weight-bearing. Patella following knee injury”. Dr St Croix, in an undated report, explains that increased use and applied pressure on the right leg to compensate for “inability to use left knee” resulted in findings of wear-related meniscal tear and associated findings. She adds that the onset of symptoms chronologically support the development of symptoms due to increased use and reliance following the left knee injury.

Dr Di Nallo reported on 15 August 2024 that the applicant had persisting left knee pain and had mentioned right knee pain. He also records that the applicant was “non-weight-bearing and walking improperly for a long time due to the left knee” and had been heavily relying on the right knee. This is again confirmed in his report of 19 August 2024, where he states that the applicant has been “overloading his right knee making both these conditions [meniscal tear and pain arising from the lateral facet of the patella] symptomatic”.
Dr Herald and Dr Tomlinson both record a history of the applicant using crutches and a brace. Dr Herald states he used crutches for about two weeks and used a brace for about three weeks after the left knee injury, whereas Dr Tomlinson records he used crutches for three to four days and remained in a brace for two to three weeks. Dr Herald also records a history that the applicant had to “hop around the house to avoid loading on his left knee”. Dr Tomlinson states that the applicant has discomfort with loading of the right knee.
Thirdly, the applicant’s pain in his right knee has largely been asymptomatic since the 2008 surgery and for at least eight years prior to the March 2024 left knee injury. The applicant states that he had no pain in his right knee before the fall in 2024 injuring his left knee. While the medical evidence may tend to suggest that there is silence on symptoms in 2007 and 2016 or that there was “no pre-existing condition” in the right knee, this must be read in context.
While it is not clear whether the treating practitioners and medico-legal experts had regard to the complaints in 2016 in expressing their opinion on causation, this is not fatal. That is because those clinical entries, as the applicant submits, do not refer to the pain and symptoms experienced in the right knee as a result of the 2007 problems. For the reasons set out above, I do not consider those entries are material.
I do not accept the respondent’s submission that Dr Di Nallo was not alive to the 2008 surgery. Dr Di Nallo had been treating the applicant for ongoing pain in his left knee and notes pain in the right knee. I am satisfied that while his reports are silent on a 2008 surgery, he is alive to it. He had seen the applicant on numerous occasions and examined him, which would have revealed evidence of the past surgery. In his report of 15 August 2024 he states that the applicant “is going to require further surgery on his knee”, which also suggests an awareness of the original surgery to the right knee. The applicant has only undergone one operation on his knees, and that was to his right knee in 2008.
In the context of responding to a request to comment on whether any pre-existing conditions and age-related changes had contributed to the right knee injury, Dr Di Nallo says he is not aware of any “pre-existing condition” and then states given his age he would “naturally have wear and tear in his joint”. To the extent necessary, I infer the comment “not aware of any pre-existing condition” is merely a response to there being no pre-existing condition that had contributed to the development of the present right knee injury.
Dr St Croix confirms that the applicant had no history of pain in the right knee until after the left knee injury, and the onset of symptoms were due to increased use and reliance following the left knee injury. While Dr St Croix does not refer to the 2008 surgery or the 2016 clinical entries, she states that the “right knee was asymptomatic though career thus far”. It is reasonable to infer that Dr St Croix is referring to the applicant’s career with the respondent, and consistent with that opinion the evidence supports no complaints of right knee symptoms between May 2016 and the onset in July 2024.
Even if Dr Di Nallo and Dr St Croix were not aware of the applicant’s pre-existing condition in his right knee and 2008 surgery, this is not fatal. That is because, as the applicant submits, the evidence supports that the applicant was asymptomatic in the right knee for many years prior to the lumbar spine injury (namely, at least four years), left knee injury (namely, at least eight years) and right knee injury (namely, at least eight years).
Dr Herald and Dr Tomlinson both record a history that the applicant first noticed pain in his right knee in July 2024 (and/or early August). This is having noted a background of surgery in 2008 (or 2007) and that symptoms in the right knee resolved following the surgery. Dr Herald states that the applicant had a complete recovery after a few weeks after the surgery having returned to work undertaking full duties. Dr Tomlinson states that the applicant’s right symptoms “resolved with no ongoing pain until the current time” being July/August 2024.
The medical evidence explains the onset of previously asymptomatic right knee symptoms post-dating the left knee injury, and in the context of ongoing pain while the applicant recovered from the left knee injury. The applicant consistently states that he was in pain in the left knee and had symptoms in the right leg, while undergoing his usual activities and placing additional load on the right knee. This is consistent with the history recorded by Dr Di Nallo, Dr Herald and Dr Tomlinson.
It is not disputed that the applicant had a degenerative condition. This condition was asymptomatic for a significant period of time. That there is no precipitating event or only intermittent symptoms does not necessarily mean that the symptoms experienced by the applicant relate to a constitutional issue and not a consequential condition. It is clear that the left knee symptoms had not settled and the applicant’s present conditions in his right knee only become symptomatic following the left knee injury and while placing additional load on the right knee. There are no other intervening events or clear causes on the evidence.
Dr Tomlinson considers that the applicant’s condition in the right knee is an exacerbation of pre-existing degenerative arthritis, likely to have occurred as a result of the 2007/2008 incident and surgery. The basis for this is because the right knee symptoms are intermittent and that there was no precipitating event for the onset of the pain. It is also because she could not relate the event of the applicant walking the dog to employment.
However, Dr Tomlinson has not explained what caused the exacerbation of the pre-existing degenerative arthritis or why. As the applicant submits, there was a gap of at least eight years between onset of the exacerbation in July/August 2024 and the last record of complaint of pain in the right knee in 2016. Further, as the applicant contends, Dr Tomlinson has failed to evaluate whether weight bearing was a cause of the applicant’s right knee symptoms. This is despite recording a history of load bearing on the right knee, resolution of symptoms in the right knee following surgery in 2007/2008, and no further complaint in the right knee until July/August 2024. This is further on a background of ongoing complaint in the left knee, evidence of non-load bearing on the left leg at least until around August 2024, increasing symptoms in the left knee, following the incident in March 2024. For these reasons, I am unable to place significant weight on the opinion of Dr Tomlinson.
Having regard to the above, notwithstanding some deficiencies in the evidence, I prefer the evidence of Dr Di Nallo when read with Dr Herald and Dr St Croix on causation over the evidence of Dr Tomlinson.
Dr Di Nallo had seen the applicant on several occasions for his left knee symptoms which were ongoing. He clearly explains that the applicant was non-weight bearing in the left leg causing more pressure on the right knee. He explains that the overloading of the right knee has caused his conditions in that knee to become symptomatic.
Dr St Croix also explains that the increased use and applied pressure on the applicant’s right extremity to compensate for his inability to use his left knee resulted in his present right knee symptoms.
While Dr Herald’s opinion on causation of a consequential condition is not well-developed, he notes that the applicant eventually developed pain over his right knee as he had to “avoid loading on his left knee” in undertaking various activities.
The opinions of Dr Di Nallo, Dr Herald and Dr St Croix are supported by the applicant’s lay statement evidence. It is also supported by the consistent histories provided to Dr Di Nallo, Dr Herald, Dr St Croix, Dr Tomlinson, and reported in the 2024 MRI. I am satisfied that this evidence provides a logical basis to establish a finding of a consequential condition in respect of the right knee.[14]
[14] Kumar; Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3; Trustee of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWCCPD 23.
I am satisfied on the balance of probabilities that the evidence demonstrates a material contribution from the accepted left knee injury (which was caused by the accepted lumbar spine injury) to the symptomology in the right knee. I accept that the evidence demonstrates that the applicant was required to place additional weight on his right leg, while recovering from the left knee injury during a time he experienced ongoing pain in the left leg. I also accept that the conditions in his right knee were not present, on the evidence, prior to the left knee injury. I further accept that the additional weight bearing on the right leg caused the applicant’s right knee conditions to become symptomatic, as explained by Dr Di Nallo with whom I accept.
It follows that I find that the applicant has sustained a consequential condition to his right knee.

Proposed medical treatment

The applicant seeks the costs of, and incidental to, lateral retinaculum release and meniscal debridement surgery pursuant to s 60 of the 1987 Act.
Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the accepted injury, and, secondly, whether the proposed surgery is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[15] The applicant bears the onus of proof, to establish her case on the balance of probabilities.[16]
[15] Kooragang; Diab v NR Diab MA Ltd [2014] NSWWCCPD 72 (Diab).
[16] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.

Reasonably necessary

Deputy President Roche, in Diab v NRMA Limited,[17] considered the application of s 60 of the 1987 Act and the phrase “reasonably necessary”. Deputy President Roche stated:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”[18] (footnotes omitted)
[17] [2014] NSWWCPD 72.
[18] Diab, [86] (per Roche DP).
Deputy President Roche then considered the criteria of reasonableness:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression “no reasonable prospect” should be understood, “[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content”.”[19] (footnotes and citations omitted)
[19] Diab, [88]-[90] (per Roche DP).
The evidence demonstrates that the proposed surgery is “reasonably necessary”, within the meaning of that phrase discussed in Diab v NRMA Ltd.[20]
[20] [2014] NSWWCCPD 72, [76]-[90] (per Roche DP).
Firstly, I am satisfied that the proposed surgery is appropriate to address the symptoms in the applicant’s right knee. It is not disputed that the applicant has a tightness in the lateral retinaculum and that he has a meniscal tear. Dr Di Nallo explains that the applicant’s main pain arises from the patellofemoral joint and that a lateral retinaculum release is recommended to decompress the patella and that a medial partial meniscectomy may be required. He further explains that given the tightness of retinaculum non-surgical options are unlikely to address the lateral retinaculum condition and meniscal tear.
Dr Tomlinson does not consider that the proposed retinaculum release surgery is appropriate in the setting of severe arthritis and while she acknowledges the existence of a meniscal tear she does not comment that the proposed surgery is not reasonably necessary to address that condition. Dr Tomlinson states that strengthening exercises would be the only treatment recommended. Dr Tomlinson’s opinion is not further developed. I am unable to place weight on Dr Tomlinson’s opinion that the release surgery is not suitable for reason of severe osteoarthritis, as it is made in circumstances where the evidence indicates the applicant only has moderate patellofemoral osteoarthritis. This is confirmed in the MRI dated 23 July 2024. I am also unable to place weight on the recommendation for non-surgical treatment, in the circumstances where Dr Di Nallo (with whom I accept) has clearly explained why that would not assist to resolve the applicant’s condition.
Dr Herald does not dispute the need for surgery and explains that the applicant may require a meniscectomy or lateral release to help with patellofemoral tracking in the future. He also opines that the proposed surgery would be of benefit, but suggests it should be undertaken as a last resort. I prefer Dr Di Nallo’s opinion on the timing of the need for the proposed surgery. As the applicant submits, Dr Herald only examined him on one occasion when compared to Dr Di Nallo who had examined him on multiple occasions as the treating orthopaedic surgeon.
Secondly, while Dr Herald considers that surgery should be as a last resort, this does not preclude it from being reasonably necessary until other treatment options are explored.[21] Equally, that the proposed surgery is one of a range of suitable treatment options (surgical and non-surgical) available to the applicant does not prevent a finding that that surgery is reasonably necessary treatment.
[21] [2014] NSWWCCPD 72, [86] (per Roche DP).
I do not accept the respondent’s submission that there has been no elucidation of other treatment options. Dr Di Nallo explains that the applicant has undertaken various analgesic medication for his symptoms, but still experiences pain. Dr Di Nallo also explains that irrespective of the fact that the applicant is not interested in pursuing non-surgical treatments, the torn meniscus has not improved with non-surgical methods and might not improve that way. He also adds, in this context, that it will be hard for the applicant to perform stretching of the tissues with only rehabilitation given the tightness of the lateral retinaculum.
Dr Di Nallo explains that whether the meniscal debridement surgery will proceed will be subject to what occurs during the lateral retinaculum release. I am satisfied that this proposed second component of surgery, as the applicant submits, is a matter for clinical judgment at the time of the operation. Notwithstanding the respondent’s submissions on the weight to be attached to Dr Di Nallo’s opinion, I consider that Dr Di Nallo sufficiently explains why the proposed surgery would address the applicant’s conditions and pain in the right knee.
Thirdly, the cost of the proposed lateral retinaculum release and meniscal debridement is estimated together at less than $4,000. The parties did not make any submissions on the cost of the proposed surgery. There is no other evidence to suggest that the cost of the surgery would exceed that fee estimate. The cost of the proposed surgery is not prohibitive and well below the expected range.
Fourthly, the evidence supports that the proposed surgery will be effective in relieving the applicant’s symptoms in his right knee. Dr Di Nallo explains that non-surgical measures will not address the applicant’s conditions and pain. Dr Di Nallo says that he hopes the proposed surgery will give the applicant “a pain-free knee” but notes there is a chance of “mild discomfort might be left”. Dr Herald says that the surgery recommended by Dr Di Nallo “will be of benefit”. While Dr Tomlison is silent on whether the proposed surgery will be effective. I accept the applicant’s submission that he has an entitlement to take steps to alleviate his symptoms and the proposed surgery would be effective in addressing his pain.
Fifthly, Dr Di Nallo provides acceptance for the proposed surgery as being appropriate and likely to be effective. This is supported by Dr Herald who explains the applicant may need lateral release surgery or meniscectomy in the future to address his condition. The only opinion that is in direct contradiction (in-part) is that of Dr Tomlinson, and for the reasons discussed above I cannot place significant weight on that opinion. I am satisfied that the proposed surgery is both appropriate and likely to be effective.
Having regard to the totality of factors set out in Diab v NRMA Ltd,[22] I am satisfied that the applicant has discharged his onus of proof on the balance of probabilities that the right knee surgery is reasonably necessary.
[22] [2014] NSWWCCPD 72, [76]-[90] (per Roche DP).

As a result of

The need for the proposed surgery arises from the consequential condition in the right knee.
I have found that the applicant sustained a consequential condition to his right knee. In making those findings, I have explained why I prefer the opinions of Dr Di Nallo, Dr St Croix and Dr Herald over Dr Tomlinson.
I have also found that the proposed surgery recommended by Dr Di Nallo is reasonably necessary to treat the applicant’s right knee symptoms.
Dr Di Nallo addresses the material contribution between the right knee injury and the need for the proposed surgery. He explains that the right knee condition, namely meniscal tear and pain arising from the lateral facet of the patella, was made symptomatic by the overloading of the right knee. He also explains that to decompress the patella, the applicant requires a lateral retinaculum release and possibly a partial meniscectomy. He further explains why non-surgical methods will not address the pathology and pain the applicant is experiencing in the right knee.

I have explained why I do not accept Dr Tomlinson’s opinion that the applicant’s present symptoms are an exacerbation of an underlying degenerative condition in the right knee. In any event, whether or not the 2007 incident and following surgery to the right knee forms part of the reason for the proposed surgery is not fatal to the applicant’s claim for compensation under s 60 of the 1987 Act. That is because a condition can have multiple causes and the consequential condition need not be the only cause for the proposed reasonably necessary surgery, before the cost of that treatment is recoverable under s 60 of the 1987 Act.[23]
[23] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, [57]-[58] (per Roche DP).
There is sufficient evidence to establish a material contribution between the applicant’s current right knee symptoms, the accepted injury to the left knee and lumbar spine, and the need for reasonably necessary treatment to address those symptoms. While Dr Di Nallo may not clearly articulate precisely how the proposed two-staged surgery will address the applicant’s right knee conditions, namely the patella translation and meniscus injury, he explains that the surgery will alleviate the applicant’s pain which has become symptomatic as a result of the accepted injuries. He also provides a well-reasoned opinion as to why non-surgical methods will not assist to improve the applicant’s conditions, noting the tightness of the lateral retinaculum will restrict stretching of the tissues or non-surgical rehabilitation at the right knee.
Accordingly, the proposed surgery is reasonably necessary treatment as a result of the consequential condition sustained in relation to the right knee.
It follows that the respondent is to pay the costs of the proposed surgery and associated treatment pursuant to s 60 of the 1987 Act, in accordance with the workers compensation SIRA gazetted rates.

COSTS

It is not disputed, as the applicant submits, that he is an exempt worker and therefore the respondent should pay the applicant’s costs in the proceedings if a finding is made in his favour.
The applicant provided submissions on its application for an uplift on costs of 20% for complexity in accordance with Table 4 of Pt 2 of Sch 6 of the Workers Compensation Regulation (2016 Regulation). The respondent did not provide any submissions, other than to submit that the uplift should be applied equally to both parties.
Item 4 of Table 4 of Pt 2 of Sch 6 of the 2016 Regulation, “Disputes determined or otherwise resolved after proceedings have been commenced in the Commission”, permits an increase in the flat rate expressed in Table 1 in matters that involve some complexity.
Clause 11 of Pt 1 of Sch 6 of the 2016 Regulation sets an upper limit, and the maximum payable is determined within the range from nil to 30%, by reference to any applicable direction issued by the President or the Commission’s rules and a consideration of the nature and extent of the service performed.
I accept, as the applicant submits, that the contested issue of liability required careful evaluation of the evidence regarding multiple injuries in the context of historical claims. It also required and resulted in comprehensive submissions by counsel for both parties. I do not consider that the matter involved a level of complexity to warrant an uplift of 20%, as suggested by the applicant, given the nature of the disputed issues. However, in the circumstances, I consider a modest uplift of 10% is a fair representation of the degree of complexity and additional professional work undertaken by the parties.
In the exercise of my discretion, I certify 10% uplift for complexity for both parties.

SUMMARY

I am satisfied, on the balance of probabilities, that the applicant has discharged his onus of proof that he sustained a consequential condition to his right knee as a result of the accepted lumbar spine and left knee injuries.
I am also satisfied that the proposed surgery is reasonably necessary medical treatment as a result of the consequential condition in the right knee.
I consider that there is a modest level of complexity in this matter and grant an uplift in costs of 10% to both parties. Given the findings in favour of the applicant, an award for the applicant for costs will be made.
Accordingly, the above orders are made.

[2025] NSWPIC 164

22 April 2025