Singh v ComfortDelGro Australia

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v ComfortDelGro Australia [2025] NSWPIC 411
APPLICANT:	Hardip Singh
RESPONDENT:	ComfortDelGro Australia
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	15 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of arthroscopy to right knee; applicant relied on section 4(b)(ii); injury and reasonable necessity of treatment disputed; applicant sustained non work-related injury to right knee approximately six months before pleaded injury; applicant did not refer to earlier injury in statement evidence or provide history of the injury to treating specialist or independent medical examiners; respondent submitted applicant’s credit in issue; consideration of Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office, AV v AW, and Diab v NRMA Ltd; Held – applicant sustained injury as result of aggravation, acceleration, exacerbation or deterioration of disease; surgery reasonably necessary as result of injury; respondent to pay costs of and incidental to surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay, pursuant to s 60 of the Workers Compensation Act 1987, the costs of and incidental to right knee arthroscopy, as proposed by Dr Daniel Biggs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Hardip Singh (Mr Singh), is employed by the respondent, ComfortDelGro Australia (CDC) as a bus driver.
Mr Singh claims to have sustained an injury to his right knee on 6 December 2022, when he was attempting to exit the seat of a bus.
Claims against CDC Australia Pty Ltd Workers Compensation Self Insurance are managed by QBE.
On 11 September 2023, QBE issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE disputed that the applicant had sustained an injury; that employment was a substantial contributing factor to the injury; that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the applicant’s disease injury; that the applicant was entitled to weekly payments, because he did not have total or partial incapacity for work; and that medical or related treatment was reasonably necessary as a result of an injury.
The applicant’s request that QBE review its decision is not in evidence. However, a request was made, and on 22 December 2023, QBE issued the applicant with a notice pursuant to
s 287A of the 1998 Act.
In this notice, QBE did not dispute that the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the applicant’s injury.
QBE added as a basis for disputing liability that the applicant was on a journey to or from work when the injury occurred; and there was no real and substantial connection between the applicant’s employment and the accident from which his injury arose, pursuant to
s 10 of the Workers Compensation Act 1987 (the 1987 Act). QBE also disputed that arthroscopy was reasonably necessary medical treatment.
The applicant lodged an Application to Resolve a Dispute (Application) on 25 February 2025.
The applicant claimed that on 6 December 2022, he sustained an injury to his right knee, or alternatively an aggravation, acceleration, or exacerbation of a pre-existing injury. The applicant claimed that while seated in the driver’s seat, he twisted his right knee. “The seats are quite high and positioned close to the wheel”, so when the applicant attempted to exit the seat, he twisted his knee.
The applicant claimed the sum of $8,000 for the costs of right knee arthroscopy, as proposed by Dr Daniel Biggs.
The respondent lodged its Reply on 12 March 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the applicant sustained injury on the date, or deemed date, of 6 December 2022, whether that be a frank injury or an aggravation within the meaning of s 4(b)(ii) of the 1987 Act, and
(b) Whether the proposed surgery by Dr Biggs is reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing in person on 23 June 2025. Mr Tanner of counsel, instructed by Ms Dunlop, appeared for the applicant, who was present. Mr Doak of counsel, instructed by Ms Caldwell, appeared for the respondent. Mr Douglas, the third party administrator, and Ms Good, the respondent’s representative, were also present.
The respondent’s Applications to Lodge Additional Documents dated 1 April 2025 and
11 June 2025, and their respective attached documents, were admitted without objection.
The applicant wished to rely on the clinical records of Myhealth Blacktown. The respondent did not object to the admission of the documents, as it also wished to rely on the records.
The records were therefore admitted, and the applicant was directed to lodge and serve an Application to Lodge Additional Documents, attaching the documents, on or before
30 June 2025. The applicant has complied with that direction.
Whilst Mr Tanner was able to complete his oral submissions, there was insufficient time for Mr Doak to make his submissions.
Directions were made for the respondent to provide its submissions in writing, and for the applicant to make any submissions in reply. The parties have complied with that direction.
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 and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 1 April 2025 and attached documents, lodged by the respondent;
(d)    Application to Lodge Additional Documents dated 11 June 2025 and attached documents, lodged by the respondent, and
(e)    Application to Lodge Additional Documents dated 26 June 2025 and attached documents, lodged by the applicant.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Hardip Singh

The applicant’s first statement is dated 28 January 2024.
He commenced work for CDC in or around 2017 as a bus driver. He had no pre-existing issues pertaining to his job prior to this injury.
On 6 December 2022, whilst seated on the driver’s seat, he accidentally twisted his right knee. The seats are very high and close to the wheel, so he twisted his right knee whilst getting out of the seat. It was very painful. He could immediately tell something was wrong.
He experienced an immediate onset of pain after stepping out of the bus. The pain was sharp and consistent and would not resolve.
He did not want to go off work and tried to continue working. He was certified fit for some work from 7 December 2022 to 16 December 2022, for six hours a day, five days a week.
After this, he returned to full-time duties “to try to get back on track.” He had been with the company a long time, and did not want the injury to affect his work, as he had a family to provide for.
On 13 December 2022, CDC approved an MRI in order for him to commence physiotherapy.
On 29 December 2022, his claim was accepted. He was undergoing physiotherapy with Myhealth in Blacktown, attending once a month. He went in accordance with his pain levels.
On 2 March 2023, he consulted Dr Biggs, orthopaedic surgeon, who recommended he undergo right knee arthroscopy. He wanted to undergo this surgery to return to some sort of normalcy in his work and everyday life, as he continued to suffer ongoing pain.
On 18 September 2023, he was stood down from work on full pay, as there were no suitable duties available. He felt that the surgery would help him return to his regular duties.
He had attended physiotherapy at Stanhope Leisure Centre and continued this at his own pace.
He struggled in his everyday life due to his injury. He had difficulty mowing the lawn and attending to garden maintenance, which he used to do weekly. He did not do this anymore, and if he did, he had to attend to it very slowly, so as not to aggravate his injuries.
He used to keep very active, going to the gym and on walks. He did not attend to this anymore as he did not want to aggravate his injury.
He found himself overcompensating with his left knee. This was also worrying him, as he did not want his left knee to deteriorate.
He often woke in the middle of the night to rearrange his position, due to ongoing pain in his knee.
When he was home from work, he found himself on the couch watching television most of the time. He did not feel motivated to go on walks or to the gym, as he did not want to aggravate his knee.
His knee felt stiff and difficult to move. His range of motion was completely limited. It was difficult to for him to stand or walk for longer periods of time due to the irritating and radiating pain in his knee.
He went back to work in or around October 2023. He did not want to lose his job and wanted to stay loyal to the company, “so I am not (probably a typographical error for
“now”) back to work.” He was finding it very difficult to drive for long periods. He had to take frequent breaks, and his knee felt swollen, tender, and sensitive by the end of the day.
He was unsure how much longer he could continue working with his knee in this condition. He was really trying but struggling.
His knee pain was continuing to get worse due to work. However, he felt he did not have a choice and needed to work.
He hoped to undergo the arthroscopy to help heal and recover his knee so he could live a life that was pain-free and manageable.
He hoped his surgery was approved so he could revert to a sense of normalcy. He felt constantly on edge due to his injury, and it had completely taken a toll on him.
The applicant’s second statement is dated 9 September 2024.
In or around January 2024, he returned to fulltime duties. He needed to support his family and pay off his mortgage and this was the only way he was able to do it, as he was not being supported by workers compensation.
He was not performing his duties as much as he used to.
Prior to his injury, he worked overtime a lot. He would also work through the short break period, between 10am and 1pm. He was unable to do this anymore as he needed the break due to pain in his right knee. He felt that the movement in his knee and sitting awkwardly for long periods created issues in his knee. He felt that he did not have a choice, he needed to work.
He wanted to be able to work without feeling pain, and to do this he felt he required the proposed surgery.

Medical evidence

Conrad Road Family Practice (Conrad Road)

On 27 June 2022, the practice recorded that the applicant had twisted his knee, “since then unable to walk”.
On examination, the applicant had:
“Mild swelling of knee
Effusion +”
Tender med[ial] joint line
Tender post knee and calf”
The diagnosis was recorded as “?? meniscal tear”. The applicant was sent for X-ray and ultrasound of the right knee and calf.
On 29 June 2022, there was a discussion of the ultrasound results. The applicant had a bulging meniscus and ongoing knee pain. He was advised to get an MRI and the doctor explained he would have to pay for it.
On 8 July 2022, the applicant was advised that MRI showed a medial meniscal tear. He was advised to keep doing his exercises and referred to Dr Jun Nagamori, orthopaedic surgeon.
On 26 July 2022, the applicant was advised to undergo physiotherapy. He was referred to Stanhope Physio.
On 29 July 2022, the applicant advised the doctor he wanted to take more leave for his knee. The physiotherapist asked him to take more leave but had not given him a medical certificate. The applicant was given a medical certificate from 29 July 2022 to 9 August 2022.
The applicant continued to present at the practice for treatment but there are no further references to his right knee.

Dr Jun Nagamori – orthopaedic surgeon

Dr Nagamori reported to general practitioner Dr Padma Kaluarachchi on 26 July 2022.
Dr Nagamori recorded a four week history of right global knee pain. The pain was aggravated by walking on stairs and level ground. Getting out of a chair was uncomfortable. Driving was painful. Mr Singh had not noticed any swelling. There was no recent history of trauma.
On examination, Dr Nagamori noted a small effusion and full range of motion with tender anteromedial joint line. McMurray’s test was negative. The posterior aspect of the medial joint line was non-tender. The patellofemoral joint showed crepitus without much irritability. The ligaments were intact.
Dr Nagamori reported that MRI scan (which is in evidence and dated 2 July 2022) revealed moderate medial compartment wear with bone marrow oedema affecting the anterior aspect of the medial compartment. The medial meniscus showed extensive intrasubstance degeneration, with an extensive tear at the posterior horn insertion, of unknown duration.
Dr Nagamori opined that the applicant had exacerbation of osteoarthritis, with a meniscus tear of unknown duration. There were no displaced meniscus fragments. There was a high likelihood that the applicant would require a knee replacement in the future.
Dr Nagamori did not think arthroscopy was likely to be of meaningful benefit, and there was “certainly no role for a meniscal repair.” The applicant should focus on physiotherapy to improve his function and strength. It was hoped the applicant could return to his usual duties without the need for procedures such as a knee replacement, which seemed premature, as he had not had any symptoms until four weeks ago.

MRI scan report 2 July 2022 – Dr Ian Clare

The copy of the report attached to the Reply is poor and somewhat difficult to read.
The clinical data recorded was “Meniscal tear? Ongoing pain.”
The findings were reported as:
· mild to moderate joint effusion
· moderate to marked OA (osteoarthritis) medial femorotibial joint compartment with full thickness loss of articular cartilage in the central weight-bearing portion of the medial femoral condyle and to a lesser degree tibial condyle and associated mild to moderate reactive marrow oedema as well as marginal osteophytes
The report recorded a tear of the posterior root of the medial meniscus, measuring about
five mm (?) transverse with associated mild extrusion of the body of the medial meniscus. There was also a horizontal tear with inferior surface extension of the posterior horn of the medial meniscus.
The report also noted grade IV chondromalacia patella with full thickness loss of articular cartilage in the medial facet over about five mm.
There was some slight muscle oedema in the lateral head of gastrocnemius, suggesting strain injury. There was moderate oedema in the Hoffa’s fat pad, “probably inflammatory.”
The report’s conclusion was:
·        Medial meniscal tear
·        Joint effusion
·        Moderate to marked OA femorotibial joint compartment

Myhealth Blacktown

On 7 December 2022, Dr Jonas Ilocto recorded:
“yesterday trying to get off the seat from the bus and accidentally twisted the right knee
noted ant[erior] right knee pain
but today pain on the right thigh and right leg aside from knee
no previous injury right knee
PE
slight antalgic gait
medial joint line tenderness right knee
slight effusion medial aspect right knee
slight pain on flexion of the right knee
plan
for thte [sic] MRI of the right knee
for knee brace
to see physio 2x per week”

MRI scan report 19 December 2022 (of scan performed on 16 December 2022) – Dr A Mackinnon

The history recorded was, “Rule out meniscal tear. Twisted right knee. Medial joint line tenderness.”
The findings were reported as:
·        Moderate to large joint effusion within the suprapatellar recess
·        No popliteal cyst
·        No intraarticular bodies
·        No significant subcutaneous soft tissue or intramuscular pathology
In the patellofemoral compartment, the findings were:
·        High grade chondral wear in the patellofemoral compartment, worse affecting the medial facet of the patella associated with subchondral marrow hyperintensity
·        Minor marginal osteophytes
·        Extensor mechanism intact
·        Hoffa’s fat pad outlines normally
In the medial compartment, the report recorded the following findings:
“Complex tear of the medial meniscus with predominant horizontal component affecting the body and posterior horn and up to the posterior root/horn junction and extrusion of the body of the medial gutter.
High grade chondral wear in the medial compartment with full-thickness chondral loss on both sides of the articulation predominantly affecting the central weightbearing portions, small subchondral cystic foci and subchondral marrow oedema. Moderate marginal osteophytes…”
The report concluded:
“Complex tear of the medial meniscus with predominant horizontal component affecting the body and posterior horn and up to the posterior root/horn junction and extrusion of the body of the medial gutter.
High grade chondral wear in the medial compartment.
Grade IV chondromalacia patella.
Moderate to large joint effusion.”
Dr Ilocto continued to review the applicant. The applicant was certified fit for restricted duties while he awaited approval for surgery.
On 14 September 2023, Dr Ilocto recorded that liability for the knee arthroscopy had been declined. The applicant was still getting pain in the right knee, but it was not as painful as before. There was pain only on certain movement.
Dr Ilocto recorded “normal gait”. The applicant was to trial pre-injury duties and was advised to see the physiotherapist for some strengthening exercises.
On 14 August 2023, Dr Ilocto issued the applicant with a certificate of capacity (COC) that certified him with capacity to work for eight hours a day, five days a week.
On 14 September 2023, Dr Ilocto issued the applicant with a COC that certified him fit for pre-injury work from 15 September 2023, eight hours a day, five days a week, with four hours driving and four hours in the depot. Dr Ilocto also referred the applicant to Fitness Embassy Physio for strengthening exercises.
On 20 September 2023, Dr Ilocto recorded that the applicant had seen the physiotherapist and was comfortable doing his normal hours and duties, “no more restrictions.” He issued the applicant with a COC certifying him fit for pre-injury work.
On 10 October 2023, Dr Ilocto recorded that the applicant needed a final certificate. He had been back to driving “and pain on his knee.” Dr Ilocto issued a COC certifying the applicant as fit for pre-injury work from 10 October 2023.
Dr Ilocto reported to the applicant’s solicitors on 24 July 2024.
The applicant had given a history of injuring his right knee in the course of his work on 6 December 2022. He gave no prior history of injury or symptomatology.
The applicant now had a symptomatic meniscal tear and chondromalacia of the right nee. Dr Ilocto opined he had clearly had an exacerbation of an underlying condition. The symptoms and exacerbation persisted. The symptoms were post-traumatic and not purely degenerative.
Arthroscopic surgery had been prescribed. The applicant required symptomatic relief and had failed an appropriate non-operative treatment.

Gold Standard Physiotherapy & Sports Medicine

The initial report of physiotherapist Mr Keith Leong is dated 6 January 2022, which is obviously an error for 2023.

Mr Leong recorded a history that on 6 December 2022, the applicant was going up the stairs onto the bus seat when he unexpectedly twisted his right knee in attempting to sit on the seat.
The applicant denied hearing any sounds, and worked with increasing pain, VAS (Visual Analogue Score) 8/10, for the next two days. He reported minor swelling and pain on the medial knee. He was aggravated by walking up and down stairs and prolonged walking. He was eased with a knee brace and massage.

Dr Daniel Biggs – orthopaedic surgeon, shoulder and knee surgery

Dr Biggs reported to Dr Ilocto first on 2 March 2023.
Dr Biggs recorded a history that the applicant had a twisting injury to the right knee in the course of his work in mid-December 2022. The applicant had since had a painful, swollen right knee.
The applicant gave Dr Biggs no prior history of injury or symptomatology of his right knee. He described activity-related pain, inability to kneel, bend or squat, and increasing pain when attempting to twist on his right knee.
On examination, Dr Biggs recorded a moderate effusion, a maintained range of motion, no patellofemoral irritability or instability, no ligamentous laxity, with marked mid-medial and postero-medial joint line tenderness and severe pain on forced tibio-femoral rotation.
Dr Biggs noted that MRI scan confirmed a medial meniscal tear and medial and patellofemoral compartment chondromalacia.
Dr Biggs opined that the applicant warranted right knee arthroscopy, which he planned to perform “in the not too distant future.”
On 4 July 2023, Dr Biggs reported to CDC. CDC had apparently posed questions of the doctor. The questions are not in evidence.
Dr Biggs opined that the applicant had a medial meniscal tear and medial and patellofemoral compartment chondromalacia as a result of the work injury on 6 December 2022. The diagnosis was consistent with the reported mechanism of injury.
Dr Biggs reported that the applicant had pre-existing chondromalacia of the right knee. This had been exacerbated by the workplace injury. The symptoms persisted. The exacerbation had not yet ceased.
Dr Biggs opined that the applicant’s work-related injury was a substantial cause of his ongoing symptoms and the need for surgical treatment. The applicant would require post-operative physiotherapy for six to twelve weeks.
Dr Biggs opined that the requested surgery represented a reasonable workers compensation medical cost.
Dr Biggs estimated that the applicant would return to work in a light duties capacity at six weeks post-surgery, and return to pre-injury duties eight to twelve weeks post-surgery.
Dr Biggs reported to the applicant’s solicitors on 24 July 2024.
Dr Biggs noted that the applicant had given no prior history of injury or symptomatology of the right knee. He now had a symptomatic meniscal tear and chondromalacia of that knee.
Dr Biggs opined that the applicant had clearly had an exacerbation of an underlying condition. His symptoms and the exacerbation persisted. His symptoms were post-traumatic and not purely degenerative.
Arthroscopic surgery of the right knee had been prescribed. The applicant required symptomatic relief and had failed an appropriate non-operative treatment program.
According to the history given to Dr Biggs, the applicant had had no prior history of injury or symptomatology of the right knee prior to his work-related injury of 6 December 2022.
Dr Biggs again reported to the applicant’s solicitors on 18 October 2024.
Dr Biggs noted that the applicant had undergone MRI of the right knee on 2 July 2022. Dr Biggs “assume[d]” the applicant had symptoms related to the right knee at that time that warranted imaging.
MRI scan on 2 July 2022 revealed medial meniscal tear, a joint effusion, and medial compartment chondromalacia. Dr Biggs opined that, on the basis of the history given to him, the applicant’s symptoms settled in the intervening months between July 2022 and December 2022, when Mr Singh sustained a workplace injury to the right knee, as described.
Dr Biggs opined that the applicant had pre-existing chondromalacia of the right knee and a medial meniscal tear, which was aggravated and rendered sufficiently symptomatic to warrant surgical intervention by the workplace injury, as described.
On the basis of the history given to Dr Biggs, the applicant’s symptoms worsened in December 2022.

Associate Professor Paul Miniter – orthopaedic surgeon

A/Prof Miniter was qualified by the respondent and reported first on 15 August 2023.
A/Prof Miniter reported that the applicant told him he had some minor issues with the medial aspect of his right knee, which occurred when he gave a minor twisting effect to his knee while he was sitting in a bus. He had not had a fall and had no episodes of instability.
The applicant had had some physiotherapy. A/Prof Miniter opined that this seemed to have been ineffective, as when he asked the applicant about the strengthening program, Mr Singh had no understanding of the need and method of such strengthening.
The applicant took anti-inflammatory medication when his knee was very troublesome but was not taking any medication at the moment. He had not worked in his usual capacity since December 2022 and was on light duties.
A/Prof Miniter reviewed the MRI scan of 16 December 2022. He reported that it simply demonstrated advanced medial and patellofemoral compartment osteoarthritic change. There was no evidence of recent injury. The bone oedema associated with the medial compartment was impressive and would reflect the current symptom complex.
On examination, A/Prof Miniter recorded marked medial pseudolaxity at the right knee, with a full range of flexion and a very subtle fixed flexion deformity. There was no overt patellofemoral irritation, with most of the applicant’s pain being over the medial compartment.
A/Prof Miniter asked the applicant “whether he was troubled enough by this matter to be considering a knee replacement”.
The applicant seemed surprised by this question, but A/Prof Miniter reported that “the truth is that he is simply not a candidate” for arthroscopy, and A/Prof Miniter was surprised it had been recommended.
The applicant saw himself as having ongoing issues and asked whether he could continue to work as a bus driver. On the information available, A/Prof Miniter thought the applicant should have been fit for his usual job for the entirety of the claim, and he was surprised he had been put on light duties.
The only question A/Prof Miniter raised was whether the applicant had issues with patellofemoral dysfunction that presented a risk to his employer while descending stairs from a bus. The applicant would need to do so with great care and should be advised to undertake a significant strengthening program. The applicant’s progress had been poor, raising some concerns with regard to motivation.
A/Prof Miniter opined that the pathology in the applicant’s right knee was that of degenerative change. There was no evidence of a work injury. The matter was not consistent with any mechanism of injury. The applicant simply had osteoarthritis. The matter was entirely
pre-existing. It was not aggravated by the applicant’s employment.
A/Prof Miniter further opined that the applicant’s pre-existing condition was not caused or aggravated by his employment.
The applicant should not undergo surgery “at this stage”. A/Prof Miniter did not believe surgery was reasonably necessary at this stage, for this claim or any other reason. The alternatives included a significant strengthening program. This had not been undertaken, which “puzzled” A/Prof Miniter. An exercise bike would be particularly useful.
The applicant’s prognosis was for a continuation of symptoms. He would eventually have a knee replacement, somewhere between now and the next 10 years.
A/Prof Miniter provided a supplementary report dated 30 July 2024. He had been provided with documents including the investigations of the applicant’s right knee in June/July 2022 and Dr Nagamori’s report.
It was “disappointing” that the applicant had “chosen not to reveal” the evidence of clearly pre-existing pathology. The new data suggested a significant previous history. A/Prof Miniter had been quite clear that the problem was longstanding, and there were acute findings identified on the imaging following the alleged episode at work.
A/Prof Miniter’s opinion was not altered. This was clearly a longstanding problem, and the fact that the applicant “chooses” to be on light duties related not to a work injury, but to
pre-existing issues.
A/Prof Miniter opined that the findings of the MRI on 2 July 2022 and that of December 2022 were similar.
A/Prof Miniter agreed that the applicant’s symptoms in getting out of a chair in December 2022 were no more than a reflection of the underlying degenerative changes.
A/Prof Miniter was “very surprised” that any orthopaedic surgeon would recommend arthroscopy in a case such as this. Arthroscopy had no chance of improving the applicant’s situation in a durable fashion.
A/Prof Miniter’s final report is dated 20 March 2025. He had been provided with Dr Biggs’ report dated 18 October 2024 and that of Dr Eugene Gehr, orthopaedic surgeon, who was qualified by the applicant, dated 21 September 2024.
A/Prof Miniter noted that Dr Biggs had not commented on whether the later MRI scan suggested alteration from the previous scan in July 2022.
Dr Gehr believed the MRI scan from December 2022 showed greater pathology involving the medial meniscus. A/Prof Miniter had “carefully reviewed both scans” and could see no significant alteration between them.
A/Prof Miniter opined that the applicant simply had osteoarthritic disease of the medial compartment. It was, and would continue to be, symptomatic, until he underwent joint replacement. The alleged injury in the workplace, which A/Prof Miniter did not regard as an “injury”, was of no relevance to the applicant’s current presentation.

Fitness Embassy – physiotherapists

On 5 September 2023, Mr Jeffery Yuen, physiotherapist, reported that the applicant initially presented on 1 March 2023, with a history of right knee pain following a twisting mechanism approximately eight months ago.
The applicant reported that his symptoms had progressively resolved following a guided strengthening program. He reported no persisting issues and was keen to return to his pre-injury duties.
Despite the report being dated 5 September 2023, Mr Yuen has recorded that as of
23 September 2023, the applicant’s status included:
VAS: 0/10
Observations: Nil effusion; even weight-bearing during gait; full range of motion upon squatting and lunging with good control
Meniscal/cruciate ligament testing: NAD (no abnormality detected)
Based on the applicant’s current progress, Mr Yuen supported him returning to his pre-injury duties with no restrictions. He had advised the applicant to continue his strengthening program and contact him should he have any concerns.

Dr Andrew Frean – occupational physician

Dr Frean reported to CDC on 17 October 2023, having been requested to assess the applicant for the purpose of his fitness for duty.
Dr Frean recorded a history that on 6 December 2022, the applicant was getting into his seat on the bus and experienced a sharp pain in the front of the right knee. The applicant could not recall any significant incident, unusual activity, or event that may have precipitated the symptoms. He was simply getting into his seat. He was able to drive to the depot, where he reported the incident.
The applicant worked the next day but ceased work after two or three hours of driving, due to pain in the front of the right knee, exacerbated by walking. The applicant denied other symptoms, such as stiffness, swelling, instability, or locking.
Dr Frean recorded that the applicant told him Dr Biggs had recommended an arthroscopy to “clean up” the right knee. This was not approved by the insurer. The applicant continued to receive physiotherapy weekly, and more recently had hydrotherapy. He worked on light, non-driving duties, initially for four hours and then for eight hours per day.
The applicant provided Dr Frean with a copy of A/Prof Miniter’s report dated 15 August 2023. Dr Frean noted A/Prof Miniter’s opinion.
The applicant’s claim had been declined on 25 September 2023. He was stood down with pay, pending further assessment of his fitness for duty. Prior to this, he had been working on light, non-driving duties.
The applicant reported to Dr Frean that his right knee symptoms had resolved fully at least one month ago. He denied any current pain, swelling, stiffness, instability or locking relating to the right knee.
The applicant was able to drive his automatic car without limitation or restriction. He was able to undertake all his normal activities of daily living, including personal care, domestic tasks, and maintaining his small garden. He was able to mow the lawn with a push mower.
The applicant’s recreational activities included walking and exercising in a home gym.
Dr Frean recorded that the applicant was able to sit, stand, walk, climb hills and stairs, reach, bend, kneel, and squat without limitation or restriction.
The applicant was not taking any regular medication. He continued to receive physiotherapy and hydrotherapy.
On examination of the applicant’s lower limbs, Dr Frean recorded no evidence of swelling, deformity, or muscle wasting. There was no obvious right knee effusion, no tenderness around the joint line or the patella area of the right knee, the right knee ligaments were intact, and meniscal provocation was negative. There was a near normal range of motion of the right knee joint. The applicant was able to stand on toes or heels and squat without difficulty.
Dr Frean reviewed the MRI report dated 16 December 2022.
Dr Frean diagnosed the applicant with osteoarthritis of the right knee, most marked in the medial and patellofemoral compartments – currently asymptomatic with no functional incapacity.
The applicant had experienced an exacerbation of right knee symptoms in December 2022. While the symptoms became manifest while he was getting into his seat in the bus, there was no significant history of any incident, unusual activity, or event that may have precipitated the symptoms.
Dr Frean diagnosed the applicant with osteoarthritis of the right knee, most marked in the medial and patellofemoral compartments.
Dr Frean opined that the applicant’s right knee condition was degenerative in nature and related to constitutional factors. He did not consider the condition to be consistent with the reported mechanism of injury.
Dr Frean was asked to opine as to whether the applicant’s employment had been the main contributing factor to the alleged injury. He responded that he did not consider employment to be a significant contributing factor.
Dr Frean opined that, as the applicant’s right knee condition was degenerative in nature, it was permanent but was currently asymptomatic. The applicant denied any significant symptoms or functional incapacity for at least one month or more.
Dr Frean did not consider any further treatment was necessary to enable the applicant to return to work. The applicant indicated that he continued to perform home-based muscle strengthening exercises, and this should be encouraged to minimise the likelihood of further exacerbation of symptoms.
The applicant’s prognosis for the degenerative condition of his right knee condition was for slow progression over time, with temporary exacerbation of symptoms from time to time.
Dr Frean considered the applicant was fit to work as a bus driver full-time without any restriction to working hours or functional restrictions. He did not pose a health or safety risk to himself or others.
Dr Frean considered that the applicant was currently fit to undertake the inherent requirements of his role as a bus driver. He did not consider that any reasonable accommodation or adjustments were necessary to enable Mr Singh to undertake his role.
Dr Frean did not consider that the applicant’s normal duties were likely to exacerbate or aggravate the right knee condition. The right knee condition was likely to progress slowly and be associated with intermittent flareup of symptoms. While these symptoms may become manifest at work, Dr Frean did not consider they were likely to be caused by the applicant’s work.
Dr Frean did not identify any other factors that were likely to impact Mr Singh’s capacity to undertake his role as a bus driver.

Dr Eugene Gehr – orthopaedic surgeon

Dr Gehr’s first report is dated 7 December 2023.
Dr Gehr recorded a history that prior to the accident on 6 December 2022, the applicant reported no previous problems with his cervical spine, thoracic spine, lumbar spine, upper extremities, or lower extremities.
The history of the injury recorded by Dr Gehr was that the applicant twisted his right knee when he was trying to get out of the bus. There was immediate pain and swelling. There was only an hour to go on the shift.
Dr Gehr noted the applicant’s GP had recorded on 8 July 2022 that the applicant had chronic knee pain. The applicant did not recall any problems with his knee dating from 2006.
Dr Gehr referred to both the MRIs dated 2 July 2022 and 16 December 2022.
The first MRI reported medial meniscal tear, joint effusion, and moderate to marked OA in the medial compartment. The second MRI reported complex tear of the medial meniscus with horizontal component and up to the posterior horn, root junction, and extrusion of the body of the medial gutter. It also reported high-grade chondral wear in the medial compartment.
The applicant had had 10 sessions of physiotherapy. He was no longer having physiotherapy but was having hydrotherapy. He recalled seeing Dr Biggs, and Dr Gehr noted Dr Biggs’ report dated 2 March 2023.
Dr Gehr opined that the applicant had sustained a twisting injury to the right knee on 6 December 2022. He had sustained a meniscal injury, confirmed by history, examination and imaging. There was underlying osteoarthritis “as per the imaging”.
The applicant’s knee had remained painful. An orthopaedic surgeon had recommended arthroscopic surgery.
On examination, the applicant had a reduced range of motion of the right knee, with clinical signs of meniscal pathology.
Dr Gehr’s diagnosis was right knee medial meniscal injury, with underlying osteoarthritis, “no previous knee problem he tells me, recommendation for arthroscopic surgery.”
Dr Gehr opined that the applicant’s prognosis was poor without arthroscopic surgery. He recommended that the applicant proceed with the surgery.
Dr Gehr opined that the injury was related to the applicant’s employment, and employment was the “main contributing cause of his injuries.”
Dr Gehr referred to A/Prof Miniter’s report dated 15 August 2023. He disagreed with A/Prof Miniter. The applicant was working full time prior to the accident, and had only the clearly defined injury, involving the meniscus, causing him to no longer work, and require surgery.
Dr Gehr opined that, whatever changes there were on the MRI, such as underlying OA, may well have remained asymptomatic for another 5 to 10 years, or indefinitely, if not for the accident.
In regard to the proposed surgery, Dr Gehr strongly recommended that the applicant proceed. It would address the meniscal pathology, which could provide significant symptomatic relief. The surgery was “reasonable and necessary” as it would deal with the meniscal pathology from the accident.
Dr Gehr provided a supplementary report dated 27 May 2024.
Dr Gehr opined that to characterise the applicant’s injury as degenerative in nature was “far too simple an approach.” The applicant sustained further injury to his knee to the already underlying OA. The injury or OA may well have remained quiescent if not for the further injury.
Dr Gehr did not agree with A/Prof Miniter that the applicant should undergo a strengthening program, and the proposed surgery was not reasonably necessary. At the time of Dr Gehr’s assessment, it was one year since the accident. The applicant had clearly failed non-operative management. A strengthening program was not enough to deal with the injury and arthroscopic surgery was a reasonable proposal to deal with the applicant’s problem.

Dr Gehr was asked to review the records of Myealth Blacktown. “Having accepted” the applicant’s solicitors’ statement that they made notations regarding the applicant's right knee swelling, and him being unable to work, “I am stating that he had a [sic] aggravation injury involving his right knee. That is from the injury of 6/12/2022.”
Dr Gehr provided a further supplementary report dated 24 August 2024.
Dr Gehr opined that it was well known that a tear of the meniscus could occur from a very simple manoeuvre. In this case, getting up from a sitting position with a possible torque element can be enough to tear a meniscus. It was a significant and rational mechanism of injury.
Dr Gehr disagreed with A/Prof Miniter’s opinion that the applicant’s problem was longstanding, and his choice to be on light duties related not to a work injury, but to pre-existing issues.
Dr Gehr noted the applicant reported no previous problems prior to the accident. He remained symptomatic and there was a recommendation for surgery by his treating surgeon. The applicant was on light duties because his torn meniscus with underlying osteoarthritis had not been addressed and because he remained disabled.
Dr Gehr noted there had been a lot of recent discussion about the role of arthroscopic surgery in a knee with degenerative changes. Where there was a tear of the meniscus with underlying arthritis, the general opinion seemed to be to proceed to total knee replacement rather than an internal procedure such as arthroscopy.
However, Dr Gehr opined, there was a vast difference between having a relatively low risk procedure such as arthroscopy and having a total knee replacement. The general discussion that arthroscopy had no role in the treatment of problems related to arthritis of the knee was not held by all orthopaedic surgeons, including Dr Gehr.
Dr Gehr was asked to compare the MRIs dated 2 July 2022 and 16 December 2022. He opined that the scan from 2 July 2022 was similar to the scan of 16 December 2022. It showed significant medial meniscal tear as well as underlying degenerative changes.
Dr Gehr’s last supplementary report is dated 21 September 2024.
In this report, Dr Gehr opined that the MRI from December 2022 showed greater pathology involving the medial meniscus. “Whatever existed there in July has been made worse.”
In terms of damage to the joint, described as chondral wear or osteoarthritis, Dr Gehr opined that it would be reasonable to state it was similar in both reports. However, what was of note was that the report from July 2022 reported joint effusion. The report from December 2022 reported moderate to large joint effusion, indicating an injury or further acute injury to the knee. Based on those MRIs, Dr Gehr opined that the injury to the applicant’s right knee deteriorated from July 2022 to December 2022.
The applicant had told Dr Gehr he had no problems with his lower extremity prior to the accident on 6 December 2022. However, based on this imaging, Dr Gehr opined that it was reasonable to state that the injury in December 2022 was an aggravation of the injury of
July 2022.
Dr Gehr opined that the injury in December 2022 had “certainly” worsened from July 2022, for the reasons he had outlined.

SUBMISSIONS

The applicant’s oral submissions have been recorded, and a transcript is available. The respondent’s written submissions and the applicant’s written submissions in reply remain with the Commission’s file. I will therefore provide a summary of the submissions.

Applicant

The applicant submitted that he relied on an injury deemed to have been received on
6 December 2022, as a result of the aggravation, acceleration or exacerbation of the pre-existing condition of his right knee and/or a frank incident affecting the right knee on that date.
The applicant referred to his evidence that he had no pre-existing issues pertaining to his job prior to this injury. We know from there were symptoms prior to December 2022. The applicant submitted the extent of his incapacity resulting from the episode that took him to his GP on 27 June 2022 was up to 9 August 2022.
The applicant submitted we were left with a period from August 2022 until the twisting event on 6 December 2022. The applicant submitted I would have no reason to doubt his version of what occurred and the immediate onset of symptoms.
The applicant submitted Dr Biggs understood there was a pre-existing condition. Whether that pre-existing condition was contributed to by an episode in July 2022 was irrelevant. The question was whether what occurred in December 2022 constituted an injury, as contemplated by s 4(b)(ii) of the 1987 Act.
The applicant submitted it would be surprising if it were suggested he did not suffer a knee injury, given the mechanism of injury and immediate onset of symptoms, which prompted him to seek medical care, and those treating him to obtain an MRI. There was evidence from the treating GP that the applicant had swelling of the knee.
When the MRIs of 2 July 2022 and 16 December were compared, the applicant submitted there was far more complex pathology recorded a matter of six months after the first MRI. The applicant submitted A/Prof Miniter had failed to refer to the detail of the investigations.
The applicant referred to Mr Yuen’s report, which he submitted should be read in the context of his endeavour to return to work. He submitted the report confirmed he had resorted to conservative measures to deal with his right knee pathology. He had undergone a guided strengthening program. He submitted that A/Prof Miniter’s suggestion of alternatives reflected a failure to take an accurate history.
The applicant submitted there was an acknowledgement by A/Prof Miniter of pain on examination, so there was no resolution of pain since the aggravation of 6 December 2022.
The applicant submitted he had been undergoing a guided strengthening program, took steps to return to work, and could clearly not fairly and legitimately be accused of lacking motivation.
The applicant submitted that A/Prof Miniter did not concede he was grappling with a complex tear of the medial meniscus. There was no acknowledgment of the chondromalacia or recognition of the chondral wear, and A/Prof Miniter did not refer to the effusion. Every answer was that the matter was not consistent with any mechanism of injury. To say that the applicant simply had osteoarthritis was a simplistic approach to complex pathology.
The applicant submitted that A/Prof Miniter’s opinion that the matter was entirely pre-existing did not “stack up”, given that, notwithstanding the pre-existing condition, he was able to work as a bus driver for many years before he sought treatment in mid-2022, and there was then the period from August 2022 until 6 December 2022 when he was working pre-injury duties.
The applicant submitted that it was not the respondent’s case that he did not twist his knee. If A/Prof Miniter’s evidence was to be of assistance to the respondent, he would need to address the mechanism of injury and explain why it would not have provoked the symptoms the applicant experienced immediately pursuant to that event.
The applicant accepted that his pre-existing condition was not caused by his employment. A/Prof Miniter opined that nor was it aggravated by his employment. The applicant submitted he would have to do more than simply say that, or he was offering a gratuitous bald assertion without any medicolegal explanation.
The applicant submitted that his case was this did constitute an aggravation of an underlying condition and that aggravation was manifested by the more complex pathology recorded in the MRI of 16 December 2022 and by the pain and swelling and incapacity certified by his doctors.
The applicant submitted A/Prof Miniter “basically undoes himself” because he said the prognosis was for continuing of symptoms. There were no symptoms before
6 December 2022. The only explanation for the applicant having symptoms, and that they would continue, was the event that triggered the symptoms in December.
The applicant submitted A/Prof Miniter had opined that arthroscopy had no chance of improving his situation in a durable fashion; and it could be taken that it would certainly offer a chance of improvement. It was a question of what was meant by durable. The applicant submitted he was entitled to symptomatic relief, which was what Dr Biggs was proposing.
The applicant submitted that to secure an order under s 60 of the 1987 Act, he did not have to show the treatment would result in durable results. Without any disclosure from A/Prof Miniter as to what he meant by “durable”, his attempt to offer an opinion resisting surgery lacked any proper medico-legal foundation.
The applicant submitted A/Prof Miniter could see no significant alteration between the two MRIs. The fact that A/Prof Miniter had to put in “significant” would confirm he had to acknowledge there was an alteration between the scans.
The applicant referred to Dr Nagamori’s evidence that he had not noticed any swelling in the knee. He submitted there was a very clear distinction between the effects of the episode in mid-2022 and the December 2022 episode, which resulted in swelling.
The applicant submitted that what occurred in December 2022 was a work-related trigger that gave rise to an aggravation and exacerbation, “etc”, as contemplated by s 4(b)(ii) of the 1987 Act, constituting a compensable injury.
The applicant submitted it was important to note Dr Nagamori’s opinion that he should resort to physiotherapy and strength training to improve his function. That is what he did, and notwithstanding these conservative measures, it was the view of Dr Biggs, in particular, that surgery was the appropriate treatment.
The applicant submitted that Dr Biggs is a knee surgeon. Dr Biggs opined that the diagnosis was consistent with the reported mechanism of injury. He was also aware of the applicant’s pre-existing condition. He acknowledged pre-existing chondromalacia of the right knee, which had been exacerbated by the workplace injury. He had provided an opinion that the work-related injury was a substantial cause of the applicant’s ongoing symptoms and the need for surgical treatment. That was an opinion that the proposed treatment was reasonably necessary as a result of the injury.
The applicant submitted that A/Prof Miniter had not acknowledged the chondromalacia as a starting point. The respondent did not have a medico-legal report that explained why that kind of stress would not exacerbate an underlying condition of chondromalacia.
The applicant referred to Dr Biggs’ opinion that the applicant required symptomatic relief and had failed appropriate non-operative treatment. He submitted that if symptomatic relief was feasible, he would be entitled to such relief. A/Prof Miniter did not exclude symptomatic relief.
The applicant submitted there was a clear distinction between an informed and responsible opinion by Dr Biggs, and A/Prof Miniter, who was not even aware the applicant had undergone a non-operative treatment program. The applicant asked me to give appropriate weight to the opinion of the treating surgeon.
The applicant submitted Dr Biggs had addressed explicitly the detailed pathology revealed in both MRIs. Dr Biggs opined that the applicant had pre-existing chondromalacia of the right knee and medial meniscal tear, which was aggravated and rendered sufficiently symptomatic to warrant surgical intervention by the workplace injury in December 2022. That was the applicant’s case, borne out by the evidence.
The applicant referred to Dr Gehr’s first report. He submitted he was wearing a knee brace when he was first examined by Dr Gehr. He was not wearing a knee brace before the incident in December 2022. It was over a year since the accident and the symptoms were getting worse.
The applicant submitted Dr Gehr and Dr Biggs were well aware of the underlying osteoarthritis, but it was an underlying condition that was, prior to mid-2022, not symptomatic, and there was no evidence of the applicant being symptomatic between
9 August 2022 and the date of the episode that resulted in aggravation.
The applicant referred to Dr Gehr’s evidence that employment was the main contributing cause of the applicant’s injuries. There was no evidence of any competing source of exacerbation in December 2022.
The applicant submitted his left knee was not problematic. I could assume both knees would be in a similar condition, having regard to the applicant’s age. He submitted the reason that the right knee was symptomatic was the exacerbation that was the subject of the claim.
Dr Gehr strongly recommended the applicant proceed with the surgery. The applicant submitted this was a wholehearted endorsement of what Dr Biggs proposed, which could be compared to the “one-liner” from A/Prof Miniter as to whether the benefits would be durable. Dr Gehr said it would address the meniscal pathology, which could provide the applicant with significant symptomatic relief.
The applicant referred to Dr Gehr’s response to A/Prof Miniter’s evidence.
The applicant submitted he was opting for the more conservative surgery. Dr Biggs considered that arthroscopy was the appropriate procedure. Under s 60 of the 1987 Act, there are different approaches by different specialists. Every case is appropriately dealt with on its merits and subject to the professional opinion of the relevant specialist.
With respect to the COC that certified the applicant fit for pre-injury duties from
20 September 2023, and Dr Frean’s report, the applicant submitted it was important to credit him with endeavouring to get back to work. There was no reason not to accept his evidence. The objective of the surgery was to return him to pre-injury duties, which would involve full and unlimited capacity to work in accordance with the hours of which he had given evidence.
The applicant submitted the evidence of Dr Biggs and Dr Gehr confirmed that he suffered an aggravation or exacerbation of the underlying condition. That was consistent with a s 4(b)(ii) (of the 1987 Act) injury.
With respect to the reasonable necessity for treatment, the applicant submitted there was ongoing pain and dysfunction, and the treating surgeon was of the opinion that arthroscopy was the appropriate treatment, supported by the applicant’s medicolegal case.
The applicant submitted the countervailing opinion was that of A/Prof Miniter, which “doesn’t start off well given what he has to say about injury which is plainly wrong”. His failure to acknowledge the detail of the applicant’s pathology indicated his was not a serious report provided by a specialist with any serious interest in the case.
Having regard to A/Prof Miniter’s failure to take a proper history of the applicant’s treatment, the applicant submitted I would give his report no weight.
The applicant submitted I would be satisfied with the opinions of his experts as providing a proper basis for a finding that the procedure was reasonably necessary and make an award pursuant to s 60 of the 1987 Act.
In written submissions in reply to the respondent, the applicant submitted that the respondent’s argument on the issue of injury “boils down to”:
(a)    the applicant’s case should be rejected on grounds of “credit”;
(b)    A/Prof Miniter’s opinion should be accepted, and
(c)    the rest of the medical evidence should be rejected.
As regards the “credit” argument, the respondent submitted the applicant had provided incorrect histories to Dr Biggs, Dr Gehr, and in his statement dated 28 January 2024; and contrary to this, the evidence established that he was treated for knee complaints prior to the injury that is the subject of these proceedings.
The applicant submitted that determination of the issue of injury must therefore proceed on the basis that he had pre-existing pathology affecting his right knee, a fact that Dr Gehr specifically took into account when providing his opinions dated 27 May 2024 and
21 September 2024.
The applicant submitted the incorrect history initially provided did not influence Dr Gehr’s conclusions, as recorded in his reports. The respondent’s approach is designed to divert attention from the material issue for determination, that is, did the applicant aggravate the underlying condition of his right knee in the course of his employment on 6 December 2022?
The applicant submitted it could not sensibly be suggested that an erroneous feature of the history initially provided by a worker has the consequence that everything else the worker states is to be dismissed, and no regard is to be had to expert opinions that are not reliant on any such erroneous feature.
The applicant submitted the respondent’s “misplaced ‘credit’ argument” was a feature of its attempt to suggest that there was merit in A/Prof Miniter’s opinion. His detailed critical analysis of A/Prof Miniter's reports had not been addressed by the respondent.
The applicant submitted that Dr Biggs’ opinion, expressed in his report dated
18 October 2024, in which Dr Biggs considered the MRI scan of 2 July 2022, was based on an understanding that the applicant had symptoms prior to that MRI, and there was a subsequent period preceding the workplace injury during which symptoms settled.
The applicant submitted it was also clear that Dr Biggs was aware that he had a medial meniscal tear, joint effusion, and medial compartment chondromalacia as of 2 July 2022, and that condition was “rendered sufficiently symptomatic to warrant surgical intervention, by the workplace injury in December 2022.” Dr Biggs reiterated the applicant’s “symptoms worsened in December 2022.”
The applicant submitted the respondent’s submissions regarding his “credit” failed to acknowledge that the treating specialist was well aware of the true picture of underlying knee pathology preceding the exacerbation on 6 December 2022.
As regards the reasonable necessity of the proposed surgery, the applicant submitted that A/Prof Miniter’s opinion can be readily rejected. The applicant submitted the Commission would give weight to the opinion of Dr Biggs, who specialises in knee surgery and has responsibility for the applicant’s care.
The applicant submitted the respondent had “picked one cherry” from Dr Gehr’s reports, that is the comment that there is “general opinion” preferring knee replacement to arthroscopic procedures. Such an “opinion” did not preclude the option of a more conservative and less invasive procedure, as proposed by a surgeon with expertise in treating knee pathology.
The applicant submitted A/Prof Miniter contemplated a knee replacement “eventually” at some time in the next 10 years. He was entitled to interim relief to address the symptoms that even A/Prof Miniter acknowledged were present.

Respondent

The respondent disputed that the applicant suffered either an acute injury or an aggravation injury, within the meaning of ss 4(a) and 4(b) of the 1987 Act.
The respondent also disputed that the applicant’s employment was either a substantial contributing factor to the injury, as required by s 9A of the 1987 Act, or the main contributing factor to the aggravation injury, as required by s 4(b)(ii) of the Act.
The respondent also disputed that the proposed arthroscopy is reasonably necessary as a result of an injury, as required by s 60 of the 1987 Act.
The respondent relied on the opinion of A/Prof Miniter. It submitted that, at his assessment in August 2023, A/Prof Miniter reviewed the actual MRI scan of the applicant’s right knee, rather than simply the report, which was of “considerable significance”.
The respondent referred to the evidence that the applicant experienced symptoms in his right knee some six months before the alleged injury. It submitted the significance of those records was that in his statement evidence and the history provided to doctors, the applicant denied experiencing any symptoms in his right knee prior to the alleged injury on
6 December 2022. Those records “clearly show that history to have been false and misleading.”

The respondent submitted the applicant spent considerable time attacking A/Prof Miniter’s opinion. That criticism included the contention that A/Prof Miniter’s opinion should not be accepted because of an insinuation of bias or lack of objectivity, without specifically identifying the basis for that contention, and whilst seeking to downplay the credit issues.
The respondent submitted that much the same sort of criticism might be directed at the opinion of Dr Gehr, who invariably, if not exclusively, provided reports for claimants.
The respondent referred to the applicant’s evidence of the mechanism of injury. It submitted that Dr Ilocto’s report dated 14 September 2023 did not include any history or description of the alleged injury on 6 December 2022.
The respondent submitted that Dr Ilocto’s findings on examination on 7 December 2022 were consistent with A/Prof Miniter’s observations that the circumstances of the injury were minor.
The respondent submitted there is no reference in the records of Conrad Road on either
9 November 2022 or 5 January 2023 to alleged injury to the applicant’s right knee on
6 December 2022. The doctor discussed the applicant’s work duties in the context of sleep apnoea without any reference to a right knee injury. The applicant had recently travelled to Adelaide and was intending to travel to India on the following Tuesday.
The respondent submitted the absence of any complaint to the doctor/s who saw the applicant at Conrad Road supported a finding that the applicant’s right knee symptoms were relatively minor, consistent with A/Prof Miniter’s opinion.
The respondent submitted the applicant’s evidence and the history he provided to the doctors who examined and assessed him were totally inconsistent with the records of Conrad Road in mid-2022, which contained multiple entries about right knee pain.
The respondent submitted the observation of swelling and effusion in the applicant’s right knee in June 2022 was significant. The applicant had submitted that swelling in his right knee had been observed following the alleged injury, in contrast to the observations of the right knee in June and July 2022. The respondent submitted that was clearly incorrect, given the Conrad Road records.
The respondent submitted that, when the records were considered, it was plain that the applicant’s evidence about the absence of prior injury or symptomatology in the right knee was false and misleading. The applicant had not provided any explanation for the inconsistency in his evidence and the history he gave to various doctors in mid-2022.
The respondent submitted the only available conclusion, in the absence of a plausible explanation from the applicant, is that he consciously sought to conceal the previous knee injury and symptoms to bolster his claim of injury on 6 December 2022. That action was, in itself, supportive of A/Prof Miniter’s opinion that the cause of the applicant’s right knee pain was not work-related.
The respondent submitted the false history provided by the applicant was significant when considering the weight that should be given to the applicant’s medical evidence.
The respondent submitted that Dr Biggs had not identified the basis of the assumption he relied on that the applicant’s right knee symptoms “settled” between July 2022 and December 2022. There was no evidence from the applicant to support that assumption.
The respondent submitted it was evident on the face of Dr Biggs’ report dated
18 October 2024 that Dr Biggs did not re-examine the applicant to allow him to take an updated history. The only possible source of the history relied on by Dr Biggs was an instruction by the applicant’s solicitor to make that assumption. That assumption had not been made out on the evidence.
The respondent submitted the inconsistent history relied on by Dr Biggs did not provide a “fair climate” for the opinion, contrary to the requirements stated in cases such as ASIC v Rich[1] and should be rejected on that basis.
[1] ASIC v Rich & Ors [2005] NSWCA 152; (2005) 54 ACSR 326.
The respondent submitted that, at best, the lack of any recorded complaint of right knee pain between July 2022 and December 2022 might support a finding that the applicant did not mention any knee pain he might have had to the doctor/s. In the absence of any direct evidence from the applicant that his right knee symptoms settled in that period, it was not open so to find, particularly when the applicant had given false evidence and history about prior knee problems.
The respondent submitted the Commission could not be satisfied there was a proper basis for Dr Biggs’ opinion in his report dated 18 October 2024, and it should reject his evidence.
The respondent submitted Dr Gehr was provided by the applicant with the same false history that he did not have any right knee injury or symptoms prior to the alleged injury on
6 December 2022. In his report dated 7 December 2023, Dr Gehr noted the right knee pathology reported in the MRI scan performed on 2 July 2022, without referring to the obvious inconsistency with the information provided.
The respondent submitted that Dr Gehr’s description of the (July) 2022 MRI scan was not a full or accurate recording of the pathology described in the report. When the full report of the July 2022 scan was read, it was clear that Dr Gehr’s initial conclusion that there was more significant pathology (in the second scan) was unsound and should not be accepted. Dr Gehr effectively made that concession in his report dated 24 August 2024.
The respondent submitted Dr Gehr’s opinion provided in his reports dated December 2023, May 2024, and August 2024, was undermined by the false history that the applicant did not have any issues with his right knee prior to the alleged incident in December 2022. Dr Gehr appeared to have wrongly focused on whether asymptomatic underlying degenerative change of the described incident was the cause of the applicant’s symptoms. Given those limitations, the Commission could not rely on the opinion expressed by Dr Gehr.
The respondent referred to Dr Gehr’s fourth report, dated 21 September 2024, in which Dr Gehr responded to a question as to whether, based on a comparison of the scans, the applicant’s “right knee deteriorated.”
The respondent submitted it was apparent that Dr Gehr did not have the scans themselves to compare, as he simply referred to the reports. Dr Gehr again mis-reported the extent of the pathology reported in the July 2022 scan as the basis for asserting the pathology reported in the December scan was “worse”. Dr Gehr also did not properly identify any pathological change based on a proper comparison of the scans themselves. On that basis, the respondent submitted the Commission could not be satisfied Dr Gehr’s opinion was soundly based.
The respondent submitted there were a number of references to effusion in the records and reports following the injury to or symptoms in the applicant’s right knee in
June and July 2022. Dr Gehr had not given proper consideration to those records. Given the significant limitations in the comparative method used by Dr Gehr, the Commission could not be satisfied his opinion was properly based.
The respondent relied on A/Prof Miniter’s report dated 20 March 2023 to meet the opinions of Drs Biggs and Gehr. A/Prof Miniter made the point that Dr Biggs had failed to address the inconsistencies in the history of previous right knee symptoms and had not provided a properly reasoned basis for his opinion.
The respondent submitted A/Prof Miniter noted that Dr Gehr had referred to the reports of the two scans, rather than comparing the scans themselves. A/Prof Miniter reviewed both scans and observed no significant alteration in the pathology. On that basis, A/Prof Miniter concluded the applicant did not sustain injury to the right knee in December 2022.
The respondent submitted A/Prof Miniter’s comments might be thought to support a possible finding of injury based on the onset of or increase in symptoms following the alleged work injury. Even if that conclusion were drawn, it would not support the claim for surgery, as A/Prof Miniter stated any incident was minor, and was not the cause of the pathology the proposed procedure is intended to address.
Given the applicant’s credit issues, the respondent submitted there was an absence of sufficiently sound evidence to support a finding of even a mild onset of or increase in right knee symptoms.
The respondent submitted the Commission would not be satisfied the applicant had established on the balance of probabilities that he suffered injury on 6 December 2022, either by way of acute injury or aggravation injury; and that employment with the respondent was a substantial contributing factor to such injury.
The respondent submitted it followed that the applicant’s claim for the cost of the proposed right knee arthroscopy must also fail, as s 60 of the 1987 Act requires a causal connection between the alleged injury and proposed treatment.
With respect to whether the proposed treatment was reasonably necessary, the respondent relied on A/Prof Miniter’s opinion. It submitted Dr Gehr’s opinion in his report dated
24 August 2024 supported that view to a great extent. Despite referring to the difference in the risk of an arthroscopy and that of a total knee replacement, Dr Gehr stated, “the general opinion now seems to be to proceed to a total knee replacement rather than to use an internal procedure such as an arthroscopy”.
The respondent submitted Dr Gehr’s comment was not consistent with Dr Biggs’ recommendation that the appropriate procedure for the applicant’s right knee pain was an arthroscopy. Given that inconsistency, even if the Commission was satisfied the applicant sustained an injury to his right knee in December 2022, it would not be satisfied the applicant had established that the proposed treatment was reasonably necessary.

SUMMARY

Injury

Section 4 of the 1987 Act provides:

“Definition of ‘injury’
In this Act--
‘injury’ --

(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

The applicant claims that on 6 December 2022, he sustained a “disease injury”, pursuant to
s 4(b)(ii) of the 1987 Act, that is, he sustained injury as a result of the aggravation, acceleration, exacerbation, or deterioration of a disease, to which his employment was the main contributing factor. I will refer in these reasons to “aggravation” for convenience.
The applicant sustained a non-work related injury to his right knee on or about 27 June 2022. The applicant has not referred to this injury in his statement evidence, despite making two statements. He has not given any evidence to explain this omission. The respondent submitted his credit is in issue.
The applicant did not provide Dr Biggs, A/Prof Miniter or Dr Gehr with a history of the injury in June 2022, about six months before the alleged injury on 6 December 2022. Dr Gehr in fact recorded a history that, before 6 December 2022, the applicant had no previous problems with, among other parts of his anatomy, either lower limb.
The applicant sought medical treatment for his right knee from Conrad Road (the names of the medical practitioners do not appear in the records, but it appears that the GP was Dr Kaluarachchi) on 27 June 2022, and I have noted above what was recorded on that date.
The applicant was referred for investigations, and to Dr Nagamori.
Dr Nagamori opined that Mr Singh had an exacerbation of osteoarthritis, with a meniscus tear of unknown duration. An arthroscopy was unlikely to be of meaningful benefit, and there was no role for meniscal repair.
As the applicant submitted, determination of the issue of injury must proceed on the basis that the applicant did have pre-existing pathology affecting his right knee; and the material issue for determination is whether Mr Singh aggravated the underlying condition of his right knee in the course of his employment on 6 December 2022.
The applicant had a period of incapacity following the injury on or about 27 June 2022, but there is no evidence that it extended beyond 9 August 2022.
The applicant presented to Myhealth Blacktown on 7 December 2022, providing the history recorded above (even though that is not recorded in Dr Ilocto’s report). Dr Ilocto recorded objective signs on examination and prescribed a knee brace and physiotherapy. The applicant was referred for MRI and ultimately for specialist treatment by Dr Biggs. There is therefore contemporaneous evidence in the form of clinical records that the applicant sustained a twisting injury to his right knee on 6 December 2022.
The respondent submitted that the “false history” provided by the applicant is significant when considering the weight to be given to the applicant’s medical evidence. However, as the applicant submitted, both Dr Biggs, the applicant’s treating specialist, and Dr Gehr, independent medical examiner, were provided with the history that the applicant had sustained an injury, with resultant investigation and treatment, in June 2022. Their opinion that the applicant had sustained an injury in December 2022 did not change.
The respondent submitted that Dr Biggs had not identified the basis of his assumption that the applicant’s right knee symptoms settled between July 2022 and December 2022, and the applicant had not given that evidence.
However, there is evidence that the applicant did not report symptoms to his right knee or seek treatment between August 2022 and 7 December 2022, the day after the alleged injury.
There is no evidence that the applicant required time off work in the period between August 2022 and December 2022. There is no evidence that he consulted or required treatment from Dr Nagamori after July 2022. Dr Gehr reported on 7 December 2023 that the applicant was working full time before the injury on 6 December 2022.
In my view, the inference may be drawn that the condition of the applicant’s right knee did settle in the period between August 2022 and December 2022. I do not accept there was not a “fair climate” for Dr Biggs’ opinion.
As the applicant submitted, Dr Biggs was aware that the applicant had a medial meniscal tear, a joint effusion, and medial compartment chondromalacia as of 2 July 2022. In his report dated 4 July 2023, Dr Biggs recorded that the applicant had pre-existing chondromalacia.
Whether the MRI scans were “similar” (Dr Gehr and A/Prof Miniter both used this description) is in my view not determinative of the issue of whether the applicant sustained an injury.
Dr Biggs, a specialist knee surgeon, opined that the applicant’s symptoms worsened in December 2022. He had access to both MRI scans and opined that the applicant’s pre-existing condition was aggravated and made sufficiently symptomatic, such as to warrant surgical intervention, by the injury in December 2022.
In Federal Broom Co Pty Ltd v Semlitch,[2] Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[2] [1964] HCA 34; (1964) 110 CLR 626 (Semlitch).
Discussing whether there was an “aggravation, etc,” Windeyer J said, “…the answer depends upon whether for the sufferer the consequences of his affliction have become more serious” (at 637).
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office,[3] said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
[3] [2000] NSWCC 37; (2000) 20 NSWCCR 88.
Dr Biggs’ opinion, which I accept, is that the applicant’s symptoms had become sufficiently serious when Dr Biggs examined him to warrant undergoing surgery. That was not the opinion of Dr Nagamori in July 2022. The intervening event was the injury on
6 December 2022.
In order to establish injury, The applicant is required to establish that employment was the main contributing factor to the aggravation of the disease, not to the disease itself.
In AV v AW[4], after considering the authorities, Deputy President Snell said (at [77-78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor' to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the ‘main contributing factor’ to the aggravation, not to the underlying disease process as a whole.”
[4] [2020] NSWWCCPD 9.
The “competing causal factors” in this matter are the twisting injury on 6 December 2022, which I am satisfied occurred, the prior injury to the applicant’s right knee on or about
27 June 2022, and the underlying degenerative changes in the applicant’s right knee.
Having considered the evidence, which I have discussed above, including in particular the evidence of Dr Biggs, I am satisfied that the applicant’s employment was the main contributing factor to the aggravation of the disease that occurred on 6 December 2022.

Reasonable necessity of proposed treatment

In Diab v NRMA Ltd,[5] Roche DP discussed the case law relating to the reasonable necessity of medical treatment.
[5] [2014] NSWWCCPD 72 (Diab).
Roche DP cited with approval the decision of Burke CCJ in Rose v Health Commission (NSW):[6]
“[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…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.”
[6] (1986) 2 NSWCCR 32 (Rose).

There is a divergence of opinion between the medical experts in this case, and apparently more widely, as to the appropriateness of the proposed surgery.
Dr Biggs opined that the applicant warranted right knee arthroscopy. As the applicant submitted, Dr Biggs specialises in knee (and shoulder) surgery.
A/Prof Miniter opined that the applicant was not a candidate for arthroscopy, but he also opined that the applicant should not undergo surgical treatment “at this stage” and surgical treatment was not reasonably necessary “at this stage”. These responses were in answer to questions regarding the proposed surgery, and not total knee replacement, which A/Prof Miniter opined the applicant will require.
A/Prof Miniter later expressed surprise that arthroscopy had been recommended. Arthroscopy had “no chance” of improving the applicant’s situation in a durable fashion.
Dr Gehr addressed the controversy, noting that where a patient had a tear of the meniscus with underlying arthritis, the general opinion appeared to be to proceed to total knee replacement. Dr Gehr pointed out that not all orthopaedic surgeons, he among them, held that view. Dr Gehr also pointed out the difference between the relatively low risk of arthroscopy and total knee replacement.
I accept the opinion of Dr Biggs, as the treating specialist, and Dr Gehr, that the proposed treatment is appropriate for the applicant.
As regards the availability of alternative treatment, and its potential effectiveness, A/Prof Miniter opined that the applicant should undergo a strengthening program. However, as the applicant submitted, he has undertaken strengthening exercises. Dr Biggs nonetheless recorded activity related pain, increasing when the applicant attempted to twist on his right knee, and inability to kneel, bend, or squat, which are significant restrictions.
Another alternative treatment may be a total knee replacement, but Dr Gehr’s comments comparing that surgical procedure with arthroscopy are apposite.
The cost of the surgery is relatively modest, although obviously not to the applicant, and cost was not raised by the respondent as a reason for disputing liability.
Dr Biggs was of the opinion that the arthroscopy would provide the applicant with symptomatic relief, and the applicant had failed non-operative treatment.
Dr Gehr strongly recommended that the surgery proceed, as it could provide the applicant with significant symptomatic relief. A strengthening program was not enough.
A/Prof Miniter opined that arthroscopy would not improve the applicant’s situation “in a durable fashion”. That appears to suggest that the surgery has at least the prospect of providing the applicant with some improvement in his condition.
A/Prof Miniter has not explained what he meant by “durable”, but he may have been referring to the inevitability of the applicant coming to total knee replacement. Once again, Dr Gehr’s comparison of the two surgical procedures is apposite. Both he and Dr Biggs believe the applicant would experience symptomatic relief from an arthroscopy.
As for the acceptance by medical experts of the treatment as being appropriate and likely to be effective, I have referred above to the differences of opinion.
A/Prof Miniter’s opinion appears to be based at least in part on him not accepting that the applicant has sustained injury, and the applicant’s failure to provide a history of the injury in June 2022.
However, despite the applicant having provided an incorrect history to Drs Biggs and Gehr, as well as to A/Prof Miniter, I have determined the dispute as to injury on the basis that the applicant did have pre-existing pathology to his right knee; and both Drs Biggs and Gehr were made aware of this, albeit not by the applicant himself.
I prefer the opinions of Dr Biggs, the applicant’s treating specialist, and a specialist knee surgeon, and Dr Gehr to that of A/Prof Miniter.
I am satisfied that the proposed medical treatment is reasonably necessary as a result of the injury on 6 December 2022.
I therefore find as follows:
(a) the applicant sustained injury to his right knee, deemed to have happened on 6 December 2022, arising out of or in the course of his employment with the respondent
(b) the proposed medical treatment is reasonably necessary as a result of the injury on 6 December 2022.
The order is set out in the Certificate of Determination.

[2025] NSWPIC 411

15 August 2025