Shepherd v Gerabindi Pty Ltd as Trustee for the Pendee Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shepherd v Gerabindi Pty Ltd As Trustee for the Pendee Family Trust [2025] NSWPIC 409
APPLICANT:	David Shepherd
RESPONDENT:	Gerabindi Pty Limited As Trustee for the Pendee Family Trust
MEMBER:	John Turner
DATE OF DECISION:	15 August 2025
CATCHWORDS:	WORKERS COMPENSATION -Workers Compensation Act 1987; section 60; consequential condition; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, Watson’s Culcairn Hotel Pty Ltd v Dwyer, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, and Murphy v Allity Management Services Pty Ltd cited and applied; Held – that the applicant sustained a consequential condition of the right knee as a result of the accepted injury to the left knee; the respondent to pay pursuant to section 60 the costs of and associated with total right knee replacement surgery.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a consequential condition of the right knee as a result of the accepted injury to the left knee. 2. The respondent to pay pursuant to s 60 of the Workers Compensation Act 1987 the costs of and associated with total right knee replacement surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

David Shepherd (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that whilst in the course of his employment with Gerabindi Pty Limited as Trustee for the Pendee Family Trust (respondent) on 14 April 2022 he sustained injury to his left knee and lower back when a step broke in his work van causing him to fall and fracture his left knee. The applicant also alleges that as a result of walking with a limp due to the left knee injury he has developed a consequential right knee injury.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) that the respondent pay the costs of and associated with total right knee replacement surgery recommended by Dr Nott.
The injury to the left knee is accepted. As a result of the incident at work on 14 April 2022 the applicant sustained a comminuted fracture of his left patella. He presented to Cooma Hospital on the day of the accident and was instructed to go to Canberra Hospital the following day where he underwent surgery to his left knee on 16 April 2022 at the hands of Dr Policinski. Following the surgery the applicant was advised to weight bear as tolerated two weeks after surgery and to stay in a Zimmer Splint for six weeks. The applicant underwent physiotherapy and was progressing slowly but appropriately. The applicant’s clinical progress was hampered by a period of homelessness as well as a period of incarceration for an offence he was reportedly found not guilty of.
The applicant has subsequently undergone total left knee replacement surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential right knee condition as a result of the accepted injury to the left knee as alleged, and
(b) whether the proposed right total knee replacement surgery is reasonably necessary as a result of an injury.
It is not disputed that the right total knee replacement is reasonably necessary. It is the respondent’s case that the evidence does not establish the causal connection between the injury to the left knee and the need for the proposed surgery to the right knee. If the applicant proves consequential condition of the right knee the surgery follows.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
29 July 2025. Mr Djordje Pecelj, counsel, instructed by Reichell Jackson, solicitor, appeared for the applicant, who was present. Mr Phillip Perry, counsel, instructed by Cherrie Tippett, solicitor, appeared for the respondent. The proceedings were conducted via MS Teams. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to Application to Lodge Additional Documents lodged on behalf of the applicant dated 21 July 2025 (AALAD).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Consequential right knee condition

It is not disputed that the applicant sustained injury to his left knee whilst in the course of his employment with the respondent on 14 April 2022. The applicant alleges that as a result of the accepted left knee injury he has suffered a consequential right knee condition.
The applicant bears the onus of establishing on the balance of probabilities that he has developed a consequential right knee condition as a result of the accepted left knee injury.
To establish a consequential condition of the right knee the applicant is not required to prove an injury within the meaning of s 4 of the 1987 Act.[1] All that is required is that the condition has resulted from the accepted left knee injury.[2]
[1] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan); Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[2] Watson’s Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5 (Dwyer).
Issues of causation are determined on the facts through a commonsense evaluation of the causal chain.[3] 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.[4]
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
[4] Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
It is the applicant’s evidence that on 14 April 2022 he fell onto both knees and that he experienced unbearable pain in both knees.[5] That the applicant did sustain an injury to his right knee as well as the accepted injury to the left knee is supported by the clinical records.
[5] ARD p. 1.
A discharge from Cooma District Hospital dated 14 April 2022 records a history of the incident on 14 April 2022 and in addition to recording the injury to the left knee also notes a small graze to the right knee.[6] The clinical records from Canberra Hospital also record that the right knee injury was cleaned and dressed at the request of the applicant.[7]
[6] ARD pp. 180-181.
[7] ARD p. 187.
A Comprehensive Care Plan[8] which was completed at Canberra Hospital and is dated
[8] ARD p. 183.
15 April 2022 refers to a fracture of the right patella however this is clearly incorrect with the fracture of the patella and the subsequent surgery being to the left knee.
The injury sustained to the right knee on 14 April 2022 appears to have been relatively minor in nature with only passing mention in respect to it in the discharge from Cooma District Hospital and seemingly the only treatment to the right knee being performed at the Canberra Hospital being the dressing and cleaning of the graze at the request of the applicant.
Following the accident at work the applicant first attended on his general practitioner (GP),
Dr David Learoyd, of the Ochre Health Medical Centre on 19 April 2022 at which time
Dr Learoyd noted the reason for the attendance as being the comminuted fracture of the left patellar. There is no mention in the clinical record of the consultation of any injury to the right knee or of any right knee complaints. There is also no mention of the right knee in the GP’s clinical notes up to and including 27 June 2022. The applicant’s next attendance at the medical practice after 27 June 2022 was not until 9 October 2023 due to the applicant’s incarceration.
In addition to there being no mention of any right knee complaints in the GP’s clinical records directly following the injury on 14 April 2022 Certificates of Capacity dated 14 April 2022,
[9] ARD p. 99, 102, 141, 148.
2 May 2022, 19 May 2022 and 10 June 2022 record the injury as a fractured patella without reference to the right knee.[9]
Dr Matthew Nott, the applicant’s treating orthopaedic surgeon, reported to icare on
1 October 2024 that an injury to the right knee had also been sustained in the fall on
[10] ARD p. 9.
14 April 2022 and that the applicant had suffered from severe ongoing right knee pain ever since. [10] I do not accept the history recorded by Dr Nott. Dr Nott is reporting to icare approximately two and a half years after the injury was sustained and the contemporaneous medical records simply do not support that there was a significant injury to the right knee on 14 April 2022 or that there were ongoing right knee symptoms following the fall.
Dr Richard Powell, orthopaedic surgeon, provided a forensic report to the respondent dated 13 January 2025. Dr Powell also records a history of the applicant striking both knees in the fall on 14 April 2022. As a result of the incident on 14 April 2022 Dr Powell diagnosed a soft tissue injury to the right knee with aggravation of underlying tricompartmental osteoarthritis. In the opinion of Dr Powell, the effects of any injury sustained to the right knee in the fall on 14 April 2022 would have settled.
In my view the opinion of Dr Powell that any right knee symptoms following the fall settled is consistent with the clinical records and I accept the doctor’s opinion in that respect. I do however have some reservations as to whether the applicant sustained an aggravation of underlying osteoarthritis in the right knee as a result of the fall. My reservations are due to the lack of any complaints in respect to right knee symptoms in the clinical records following the fall, as well as to uncertainty as to what medical records Dr Powell had the opportunity to review in coming to his opinion.
There is no dispute that the applicant did have a prior right knee condition.
It is the applicant’s evidence that when he was younger, he had a slight movement of his kneecap which resulted in a small foreign body the size of a pea forming on the outside of his knee below the joint which was removed in an arthroscopic procedure when he was approximately 20 years of age. It is also the applicant’s evidence that prior to the subject work accident he had no problems with his right knee and was very active and enjoyed going for runs every day as well as fishing from a dock.
Dr Nott when reporting to Dr Learoyd on 12 July 2024 noted a history of previous right knee arthroscopy and a history of recurrent patella dislocation on the right with the last dislocation occurring at the age of 21 playing rugby.[11] Dr Richard Powell in his report of 13 January 2025 also records a history of a right knee acute patellar dislocation at age 19 which was treated arthroscopically by Dr Michael Johnston. The applicant reported to Dr Powell that he recovered well with no significant ongoing right knee symptoms.
[11] ARD pp. 10.
The clinical records in my view support that the applicant did not have significant ongoing right knee symptomatology prior to the accident at work on 14 April 2022. The applicant reported to Dr Powell that he recovered well from the previous right knee injury with no ongoing symptoms. The applicant did attend on Dr Learoyd on 18 August 2021 at which time one of the reasons for the visit was “[o]steoarthritis of knee” however, the clinical record does not record which knee or any other information in respect to the knee complaint or what treatment was provided, if any.
Following the attendance on 18 August 2021 there are no further knee complaints recorded in the clinical notes prior to the work injury despite multiple attendances. The clinical notes continue to record no mention of the right knee following the injury on 14 April 2022 up to and including the applicant’s attendance on 27 June 2022 following which the applicant did not attend at the medical practice until 9 October 2022 due to his incarceration.
I accept the applicant’s evidence that prior to the accident on 14 April 2022 he had no problems with his right knee.
In my view the evidence supports that the applicant has had a limp since sustaining injury to his left knee on 14 April 2022.
It is the applicant’s evidence that as a result of the left knee injury he has been walking with a limp. That on or around 2 July 2022 he was incarcerated and not released from prison until
2 September 2023 during which time he received some physiotherapy but despite the treatment the pain in his left knee increased along with the restriction in movement. It is the applicant’s evidence that whilst incarcerated he was having difficulty walking due to his left knee pain which caused him pain in his right knee and lower back.
It is the applicant’s evidence that he finds it difficult to walk any distance due to pain and often finds that he must take multiple breaks from standing or walking. That he has difficulty walking up and down stairs as well as walking on rough ground or uneven ground due to knee pain. That he has difficulties with household tasks that require him to walk due to the limp which causes further pain in his knees.[12]
[12] ARD p. 3.
The clinical notes from Sapphire Coast Physiotherapy record on 14 June 2022 that the applicant was mobilising with a stick,[13] on 17 June 2022 that the left knee was painful at times,[14] on 21 June 2022 that the applicant was “[s]till having difficulty walking around”[15] and on 29 June 2022 that the applicant was still in a lot of pain.[16]
[13] ARD p. 50.
[14] ARD p. 50.
[15] Ard p. 51.
[16] ARD p. 51.
On 9 October 2023 the applicant attended on Dr Learoyd (his first attendance since 27 June 2022) complaining of left knee pain and swelling. On 30 October 2023 Dr Learoyd noted that the left knee was swollen and unable to straighten and that the applicant was walking with an antalgic gait.[17] On 21 November 2023 Dr Learoyd noted that the applicant was getting back pain walking which the doctor thought was likely related to his antalgic gait[18] and on
[17] ARD p. 129.
[18] ARD p. 130.
[19] ARD p. 132.
12 February 2024 Dr Learoyd noted that the applicant was struggling with pain and limping.[19]
On 13 November 2023 Dr Learoyd reported to icare that the applicant walked with an antalgic gait favouring his left leg and that the left knee remained painful, swollen and with a limited range of motion. In the opinion of Dr Learoyd, the ongoing left knee symptoms were a consequence of the work injury and an inability to engage in rehabilitation due to being incarcerated.[20]
[20] Reply pp. 16-17.
On 12 July 2024 Dr Nott reported to Dr Learoyd that the applicant presented with “terrible” bilateral knee pain. Dr Nott reported that the right knee was probably the worst affected. The applicant struggled to walk any distance.[21]
[21] ARD pp. 10-11.
On 27 February 2025 Dr Nott reported to Dr Learoyd noting that the applicant was walking with a limp due to his left knee condition.[22]
[22] ARD p. 47.
Dr Richard Powell who provided a forensic report to the respondent dated 13 January 2025 also observed an antalgic gait with a short stance phase on the left side.
It is the applicant’s evidence that whilst incarcerated he was having difficulty walking due to his left knee pain which caused him pain in his right knee and lower back.
Consistent with the applicant’s evidence there is no record in the clinical records of any right knee complaint’s following the injury on 14 April 2022 and prior to the applicant being released from goal.
The first direct reference to right knee pain is in the forensic report of Dr Bodel dated
14 March 2024 who noted pain in the right knee and also difficulty with kneeling and squatting.
On 12 July 2024 Dr Nott reported to Dr Learoyd that the applicant presented with “terrible” bilateral knee pain. Dr Nott reported that the right knee was probably the worst affected.
On 1 October 2024 Dr Nott reported to icare that the applicant had also sustained injury to his right knee in the fall on 14 April 2022. Dr Nott thought that his traumatic injury and documented work-related fall in April 2022 had been a substantial contributing factor to the development of his right knee arthritis and ongoing pain and disability.[23] I do not accept this opinion from Dr Nott. As I have previously discussed, and for the reasons I have previously given, I am of the view that the injury sustained to the right knee in the fall on 14 April 2022 was minor and that the applicant recovered from that injury.
[23] ARD p. 9.
On 14 March 2024 Dr Bodel, orthopaedic surgeon, reported to the applicant. The examination was not performed in-person and was only able to be conducted with audio which the doctor concedes made the examination difficult. The doctor took a history that the applicant in the work-related fall fell onto his left knee
Dr Bodel noted that there was a complaint of right knee pain recorded in the clinical records on 18 August 2021 prior to the subject accident at work. The applicant was complaining of some pain in his right knee where he had a previous injury and had osteoarthritis in the right knee but not the left. As previously discussed, I have reviewed the clinical record of
18 August 2021 and whilst it does record as one of the reasons for the applicant’s attendance osteoarthritis of the knee it does not state which knee.
In the opinion of Dr Bodel, the applicant has suffered a consequential injury to the right knee by aggravation, acceleration, exacerbation and deterioration of the previously well-established arthritic change.
Dr Bodel provided a supplementary forensic report to the applicant dated 3 February 2025 in which the doctor noted that there is evidence of bilateral tricompartmental osteoarthritis which is largely constitutional. In the doctor’s opinion the right knee became increasingly painful while favouring that left side while recovering from the injury and the surgery on the left knee.
The doctor observed that there had been no direct blow to the right knee however in the doctor’s opinion the favouring caused by the accepted left knee injury had caused aggravation, acceleration, exacerbation and deterioration to the previously asymptomatic degenerative change in the right knee. In my view the inability of Dr Bodel to conduct a physical examination of the applicant does not negatively impact on his opinion as it is based on the history in relation to the development of the symptoms and the clinically accepted diagnosis of osteoarthritis.
On 13 January 2025 Dr Richard Powell, orthopaedic surgeon, reported to the respondent.
Dr Powell records a history of the applicant striking both knees in the fall at work on
14 April 2022. Dr Powell records that on examination the applicant complained of persisting bilateral knee pain noting that bilateral MRI scans confirmed significant tricompartmental osteoarthritis.
As previously discussed, Dr Powell as a result of the incident on 14 April 2022 diagnosed a soft tissue injury to the right knee with aggravation of underlying tricompartmental osteoarthritis. The doctor was of the opinion that any injury would have settled.
I prefer the opinion of Dr Bodel. Dr Bodel basis his opinion on what in my view is a correct history of events that being that the applicant did not sustain any injury of any significance to his right knee on 14 April 2022. Dr Bodel was aware of the prior injury to the right knee and accepts that the applicant had pre-existing osteoarthritis. In forming his opinion Dr Bodel considers the fact that the applicant had been favouring the injured left leg and suffered from a left sided limp since the work injury to the left knee whilst Dr Powell does not turn his mind to the potential for a consequential right knee condition as a result of the injury to the left knee.

For the above reasons I find that the applicant has sustained a consequential condition of the right knee as a result of the accepted injury to the left knee.
It is not necessary for me to deal with the reasonable necessity for the proposed surgery as a result of injury as the respondent correctly conceded, in my view, that if a consequential condition of the right knee is proven the surgery follows. I do however note that all that is required is that the injury materially contributes to the need for the surgery[24] which in my opinion it does by either causing the right knee to become symptomatic and/or aggravation the symptomatology of the right knee.
[24] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).

[2025] NSWPIC 409

15 August 2025