Taesali v CHEP Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taesali v CHEP Australia Ltd [2025] NSWPIC 227
APPLICANT:	Marieta Taesali
RESPONDENT:	CHEP Australia Limited
MEMBER:	John Wynyard
DATE OF DECISION:	26 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits, surgery, and section 60 expenses by worker with a 10-year history of hard work; whether right shoulder injured in face of respondent medical expert saying that injury not work-related; whether the right knee had been injured in the face of the respondent medical expert’s view that injury and pathology not work-related; whether applicant’s expert infringed the principles of expert evidence; Held – respondent expert opinion rejected as he did not consider the question of aggravation of the underlying pathology in the knee; expert had not seen recent MRI of the shoulder which showed relevant pathology; generally the respondent expert failed to explain his opinions; consequential back injury not considered by respondent expert; reliance on clinical notes not helpful to respondent; Mason v Demasi, and Qannadian v Bartter Enterprises Pty Limited considered and applied; applicant expert evidence preferred; ACW v ACX considered and applied; award applicant on all claims.
DETERMINATIONS MADE:	The Commission finds: 1. Mr Taesali injured his right shoulder and right knee on a deemed date of 17 July 2023. 2. Mr Taesali suffered a consequential lumbar spine condition on the same date. 3. The proposed surgery of an arthroscopic meniscectomy, chondroplasty and debridement to the right knee is reasonably necessary. The Commission orders: 1. The respondent will pay the applicant weekly payments of compensation as set out in paragraph 163 hereof. Liberty to apply is granted as to the period claimed. 2. The respondent will pay the applicant’s s 60 expenses upon production of accounts, receipts and/or HIC documentation. It will also pay the costs of and associated with the proposed surgery in accordance with the relevant SIRA charges. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

Background

Marieta Taesali, the applicant, brings an application for payment of weekly compensation and s 60 expenses together with a declaration that the proposed surgery to the right knee is reasonably necessary as a result of injuries he sustained whilst doing repetitive work for the respondent, CHEP Australia Limited.
Dispute notices were issued and the Application to Resolve a Dispute was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did Mr Taesali suffer injury to his right shoulder?
(b)    Did Mr Taesali suffer injury to his right knee?
(c)    If so, is the proposed surgery to the right knee reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 23 April 2025. The applicant was represented by
Mr Steve Hickey of counsel, instructed by Ms Jessica Sharma from Messrs Masselos & Co Lawyers. The respondent was represented by Mr Daniel Stiles of counsel, instructed by
Ms Laura Beatty from Messrs Spark Helmore Lawyers. The insurer was unrepresented in the hearing but present by telephone from Melbourne.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Amended Application to Resolve a Dispute filed 18 March 2025;
(c)    Amended schedule of earnings;
(d)    Reply and attached documents, and
(e)    Application of Admit Late Documents from the respondent filed 15 April 2025.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

The application as amended pleaded that Mr Taesali had sustained injuries to his right knee and right shoulder either by contracting a disease or by aggravating, exacerbating, accelerating or deteriorating a disease process on a deemed date of 17 July 2023.
He also submitted that he had suffered a consequential injury to his lower back as a result of his altered gait, which was pleaded to have occurred on 17 July 2023.

Evidence

Mr Taesali made a statement on 23 in December 2024.[1] He stated that he was born in 1967 in Samoa. He moved from New Zealand to Australia on 26 December 2012 with his wife and three children, and is now an Australian citizen.
[1] ARD page 2.
Mr Taesali set out his employment history which showed that he had been involved in physical work all his life.
He commenced work as a pallet repairer for the respondent in March 2013.
He said that he initially commenced doing a morning shift, but from 2015 worked an eight-hour shift from 2.00pm to 10.00pm, which included two breaks of 20 minutes and 30 minutes respectively. He was working five days per week.
His earnings were as set out in the Amended Wages Schedule and which have been reflected in the above order for weekly payments.
Mr Taesali’s duties required him to repair pallets. He would repair approximately 450 pallets per shift and a total of about 2,250 pallets per week, repairing each pallet would take between three and five minutes.
He described the process as follows:[2]
“21. In order to repair a palette [sic], I press a button for a palette to come down on your table from the conveyor belt. The table had 3 pedals at the bottom to operate and turn bid folds and wings to change pallets. The barrel on my right side was used to push and flip the palette up. When you push the other pedals, the palette can move sides and turn for repair. This allows you to check the palette from all sides. If the palette was broken, we would put a new piece of wood. We used a nail gun and would hammer. We also used a grinder and a lever par.
22. The palette repair required frequent use of your right shoulder. I am right-handed.
23. There was no chair at the table. We were not allowed to sit down when the line was active. We were required to stand for the whole shift unless if we were on our break which required me to be on my feet all day. We had to push down the pedals for which I used my right foot and placed force through my right knee.”
[2] ARD page 3.
Mr Taesali stated that on 3 June 2019 he started to experience pain in his right shoulder which he reported verbally. He also consulted with his general practitioner (GP), who was then Dr Loh, on the same day.
He was told that the lump that had appeared in his shoulder was a lipoma.
Mr Taesali said he continued to work and then experienced ongoing pain as he did so, which then gradually increased. He reported these symptoms to Dr Loh on several occasions, but thought that Dr Loh dismissed his concerns, saying that the cause was his lipoma.
Dr Loh would issue some medical certificates, Mr Taesali said, but did not instigate any other investigations into his shoulder.
Mr Taesali said that in late 2022 he started feeling pain in his right knee, but "I pushed through." However, by about 2 May 2023, his pain in his right knee was sufficiently severe that he reported it to Dr Loh and he underwent a right knee X-ray the following day, on
3 May 2023.
Dr Loh said that the results were that he had gout and was dismissive towards him.
Mr Taesali said his condition became such that he decided he needed a second opinion as he was “struggling to walk by this time and had a slight limp due to my pain and swelling”.[3]
[3] At [33].
He then altered his GP and consulted Dr Patu on 17 July 2023.
Dr Patu told him that the deterioration in his right shoulder and right knee was likely due to his work. He underwent an X-ray of the right shoulder that did not show any abnormality, and did some physiotherapy.
He continued to work until 2 December 2023 but ceased the following day and has not returned to work in any capacity since.
He was told that he needed to get his right knee drained of fluid by Dr Patu, who conducted that procedure on 28 July 2023.
Following that procedure, Mr Taesali continued to experience right knee pain which became worse than his shoulder condition and "It gradually became the focus of my treatment”.
An MRI of the right knee was taken on 10 August 2023 and Mr Taesali was referred to
Dr Pavitar Sunner, whom he first consulted on 23 August 2023.
Mr Taesali was advised that conservative management should first be applied using medication and physiotherapy twice a week, but he was informed that if that failed, he would be a candidate for a right knee arthroscopy.
Subsequently, an application by Dr Sunner for surgery of that nature dated
[4] Reply page 9.
27 September 2023 was declined by the insurer.[4]
Mr Taesali said he had not had any treatment for his right shoulder as the focus was on his right knee until liability was declined on 20 October 2023.

Medical

The clinical notes from Dr Sunner were obtained and demonstrated that on 8 August 2023, Mr Taesali was referred to him for management. Dr Sunner noted the MRI of the right knee of the same date.
On 23 August 2023, Dr Sunner reported to Dr Chan.[5] Dr Sunner took a history of the onset of right knee pain at the end of 2022. He noted that there was no particular trauma or injury, but rather that the knee simply became painful.
[5] Respondent ALD 15 April 2025 page 210.
At that stage, Dr Sunner advised treatment by medication, as the MRI showed some arthritic changes in the medial tibio-femoral compartment, as well as a medial meniscus tear.
Dr Sunner recorded:
"….[Mr Taesali] is adamant that being at work and walking on that knee is making his knee worse, so he was asking me about getting certificates to stay off work altogether......he certainly seems to be quite aggressive with how much pain he is getting and how much more damage he is doing by walking on that knee..." [6]
[6] At page 210.
Dr Sunner reported again on 27 September 2023 to Dr Chan.[7] Dr Sunner noted that
[7] At page 212.
Mr Taesali’s knee was still swollen and was "Stopping him from getting around".
A discussion was held as to undergoing a knee arthroscopy, which Mr Taesali expressed a keen interest in. Dr Sunner applied for authorisation to the insurer on 27 September 2023 which application was declined.
The respondent referred Mr Taesali to Dr Con Kafataris who reported on 26 January 2024.[8]
[8] At 112.
Dr Kafataris took a detailed history of the duties Mr Taesali was required to do, which was consistent with Mr Taesali’s statement. He noted the onset of right knee pain.
He recorded that Mr Taesali had suffered a right shoulder injury two years before, a claim for which had been declined, and he had returned to pre-injury duties.
Dr Endrey-Walder, general and trauma surgeon, was retained as Mr Taesali’s medicolegal specialist.

Dr Peter Endrey-Walder

On 28 February 2024 he took a detailed history:[9]
“His daily work was quite physically demanding and strenuous, standing through the eight hour shift, using nail guns, hammers, grinders. To handle the heavy pallets there was machinery on his workbench that was operated by three foot pedals which were in constant use in handling the pallets to be attended to.
It was your client’s testimony that he would have a work-load of 450 pallets to repair per shift.
Over the initial eight to nine years he had no difficulty coping with the heavy duty physical labour.
In about mid-2022 he began experiencing pain in his right knee, swelling of the knee, having recalled no particular injury or fall that might have precipitated the symptoms.
At about the same time, roughly concurrent with the right knee symptoms, he began experiencing pain at this right shoulder.”
[9] ARD page 28 – 29.

Dr Endrey-Walder's opinion was:[10]
“As a consequence of the heavy duty nature of his daily work at Brambles Industries over a period of close to 10 years, Mr Taesali began experiencing pain and swelling at his right knee, pain with physical activity at the right shoulder.
Documents provided attest to your client formally complaining of symptoms in July 2022, May 2023 and July 2023, in line with his reported symptoms today.
….
It would be appropriate to note that it is my opinion that your client’s injury consists in the aggravation, acceleration, exacerbation and deterioration of disease of gradual onset, the main underlying contributing factor to this having been the nature and conditions of your client’s employment with Brambles Industries….”
[10] ARD page 33.
With regard to Mr Taesali’s lower back condition, Dr Endrey-Walder recorded the following complaint:[11]
“Lower back
‘Over the years, because of my right knee pain, I have been putting more weight on the left leg and it has impacted on my lower back and my hip.
Standing, sitting, especially getting up from a sitting position aggravates my back.
I get pain going down my buttocks.”
[11] ARD page 31.
Examination of the thoraco-lumbar spine showed no obvious para-lumbar muscle spasm, although Dr Endrey-Walder noted Mr Taesali was unable to perform any measurable hyperextension beyond the vertical. The report of an X-ray of the lumbar spine dated
29 August 2023 was noted. It showed degenerative changes particularly at L3/4 and L5/S1 with facet joint sclerosis. He assessed a DRE lumbar category II of 5% WPI with a further 2% WPI for the restriction in the activities of daily living, it may be assumed – giving a 7% WPI.
In the second report dated 2 April 2024 Dr Endrey-Walder considered in more detail the injury to the right shoulder. He was also asked to comment on a report from Dr Raymond Wallace, the respondent's medicolegal expert, dated 5 October 2023.
Dr Endrey-Walder at that stage had the result of the MRI scan which he had recommended and noted that it showed supraspinatus tendinosis, bicipital tendinosis with subluxation of the long head of biceps tendon which Dr Endrey-Walder thought was "Much in line with my clinical assessment".
The MRI scan highlighted the "wear and tear", changes at the shoulder that Dr Endrey-Walder had noted in his main report. He said "I do believe that there is a direct connection between your client's condition of the right shoulder and the nature and conditions of his employment."
Dr Endrey-Walder noted that over 10 years, Mr Taesali had performed "heavy-duty physical work handling many heavy pallets that he had to repair on his workbench, using nail guns, hammers, grinders". He said:
“The lifting, twisting and turning of the pallets, having a workload of handling up to 450 pallets a shift, would have to be considered as being in line with the wear and tear of the rotator cuff.
I do believe that your client’s employment was a substantial contributing factor to his right shoulder condition.
This man had to lift, shift, turn heavy wooden pallets at a rapid rate during the work activity, using heavy tools and machinery in the repair of such damages items.
Mr Taesali had no issues with his right shoulder for many ears (sic) after he started his work with Brambles Industries Limited, the symptoms at the right shoulder came on gradually, clearly rated to his daily rapid physical activity with upper limbs. He is of course right handed by nature.
Thus, I do believe that the nature and conditions of his daily work over the years had resulted in a degree of tendinosis of the supraspinatus component of the rotator cuff. Subluxation of the log head of biceps tendon would contribute to his now chronic, daily symptoms.”
Dr Endrey-Walder then considered Dr Wallace's report.
He noted that Dr Wallace thought that the shoulder condition had resolved and thought that Dr Wallace may have formed that opinion on the basis of the range of motion measurements that Dr Wallace took of the shoulder girdles.
Dr Endrey-Walder said that it was five months since Dr Wallace had seen Mr Taesali.
Dr Endrey-Walder found that there was a significant difference in the range of motion.
Dr Endrey-Walder said:[12]
“I am confident that this man tried his best during my examination of his shoulder girdles, and I confirm my previous finding of moderate restriction in the range of motion at the shoulder, attesting to the fact that Mr Taesali has not recovered from the shoulder injury at work.
Given that Dr Wallace had examined your client accurately and in good faith, the fact that five months after his assessment I found your client with measurable restriction in the range of motion at the right shoulder should be considered as proof that the injury related symptoms and restricted functionality had not resolved.”
[12] ARD page 37.

Dr Raymond Wallace

Dr Wallace reported on 5 October 2023.[13]
[13] Reply page 24.
Dr Wallace took a history that Mr Taesali had been working for the respondent since 2013. He said:
"In 2023, he was employed on a full-time basis with work duties including repairing pallets, using tools, including a grinder, nail gun and hammer. He was also required to operate a foot pedal repetitively to turn the pallets over."
Dr Wallace took a history of the gradual onset of right shoulder pain in 2022, which was when the right knee pain also gradually became apparent.
He noted that the right knee was aspirated by Dr Patu on 28 July 2023, and he noted the treatment with Dr Sunner thereafter.
Dr Wallace noted further that Mr Taesali had not had any time off work, but continued at part-time hours of 20 hours per week until 31 August 2023 when he ceased “due to ongoing right shoulder and right knee pain”.
Dr Wallace examined Mr Taesali and examined the radiological investigations. In the case of the right shoulder at that stage the radiography was limited to an X-ray dated 17 July 2023, which showed no abnormality.
Dr Wallace's opinion was that with regard to the right shoulder, Mr Taesali suffered a "minor muscular ligamentous strain at the right shoulder girdle in the course of his duties at work in July 2023, which has now resolved”.[14]
[14] Reply page 28.
There was no evidence of pathology in the right shoulder shown in the X-ray, he noted, and stated:
"[Mr Taesali’s] minor work-related right shoulder injury of 17 July 2023 has resolved.
There is no objective medical evidence that Mr Taesali suffered any work-related injury at his right knee."
Dr Wallace noted the MRI investigation of the right knee in August 2023 and stated that it showed extensive synovitis with pre-existing degenerative osteoarthritis involving the medial and patellofemoral compartments.
Dr Wallace said:
" Mr Taesali’s right knee condition has not been caused by any work-related trauma.”
Later in his report, as to causation Dr Wallace repeated his observations.
In a further report of the same date,[15] Dr Wallace was asked to advise as to Mr Taesali’s work capacity. Dr Wallace advised that there was no work-related incapacity in either the right shoulder or the right knee, but he said:
“He would currently not be fit for activities requiring repetitive bending, squatting, crouching or kneeling at his right leg, working in confined spaces, at heights or on ladders or prolonged periods of walking or stair climbing.”
[15] Reply page 33.
He thought that the right knee incapacity was due to “concurrent inflammatory arthropathy at the joint, and early degenerative osteoarthritis which is unrelated to his employment".

Dispute notices

The respondent issued dispute notices on 20 October, 2023 and 31 May, 2024, which relied on Dr Wallace's opinion.

SUBMISSIONS

Mr Hickey submitted that Mr Taesali had been shown to have a background in physical work. He referred to the certification within the material and Mr Stiles kindly conceded that the certification demonstrated that Mr Taesali was unfit up until 29 August 2024, commencing on 28 August 2023 with an additional day off when his right knee was aspirated on
28 July 2023.

Mr Hickey submitted that there was further certification that effectively showed that
Mr Taesali had remained without any capacity to earn. Mr Taesali had been in receipt of Centrelink benefits after his employment was terminated on 19 June 2024.
At this stage in Mr Hickey's submissions Mr Stiles was asked whether, apart from the liability dispute, the respondent disputed that the proposed surgery to the right knee was reasonably necessary.
Mr Stiles replied that his instructions were to that effect, based on the report of Dr Wallace.
Mr Hickey then referred to the evidence of Dr Patu and Dr Kafataris saying that the latter report of 5 October 2023 was significant.
Dr Kafataris had given a consistent history of the duties carried out by Mr Taesali which, considering Dr Kafataris was reporting to the respondent, was significant in the light of
Dr Wallace's opinions, Mr Hickey said.
At this point, Mr Stiles was invited to address as to the dispute his client had raised, noting that the onus remained on the applicant. However in the light of the evidence already before the Commission and in particular the history as taken by Dr Kafataris, Mr Stiles was invited to address as to the respondent’s denial of liability.

Respondent

Mr Stiles helpfully delineated the periods that were to be indexed and the applicable pre-injury average weekly earnings (PIAWE). He then submitted that there was no evidence of any complaints about Mr Taesali’s right knee or right shoulder prior to July of 2023, bearing in mind that he had been working for the respondent since 2013.
Mr Stiles acknowledged that there had been a reference by Mr Hickey to some symptoms complained of in 2019 but the clinical notes regarding that complaint concerned only a lipoma in the shoulder. There were no complaints, Mr Stiles said, of structural shoulder problems before mid-2023.
The claim was that employment was responsible for the mid-2023 complaints which,
Mr Stiles submitted, was somewhat surprising in a nature and conditions case.
Mr Stiles noted that the complaint of 4 May 2023 to the GP suggested that Mr Taesali’s problem was gout, which Dr Wallace referred to in his report. The first complaint of right knee and right shoulder pain, Mr Stiles said was in the clinical notes of Dr Patu on 17 July 2023.[16] There was no suggestion at that point in time that the complaints were work-related, as they simply referred to the symptoms being complained of, Mr Stiles said. He referred to the X-rays of the right shoulder and knee of 17 July 2023. He noted that the right shoulder X-ray revealed no abnormality and that patellofemoral osteoarthritis was identified in the right knee.
[16] Respondent late documents 15 April 2025, pages 4-5.
Mr Stiles noted that there was a clinical note on 18 July 2023 referring to right knee pain and symptoms in the right shoulder.
Mr Stiles acknowledged that the entry referred to an injury at work in April 2021, but he said it was not clear where that date came from nor whether it referred to either the knee, the shoulder or both.
However, Mr Stiles submitted there was nothing in his review of the clinical notes that suggested that the applicant sought treatment around April 2021 - indeed the certificate was issued by a GP practice that Mr Taesali had not attended until July of 2023.
Mr Stiles referred to the MRI scan of the right knee of 14 August 2023, which Mr Stiles submitted simply confirmed the genetic pathology which was consistent with the earlier X-ray.
Mr Stiles referred to the reports of Dr Sunner, noting that the history taken suggested that the onset of the knee symptoms occurred in late 2022 but again, there was no reference in
Dr Sunner’s report as to the cause of the condition being work-related.
Mr Stiles also noted that the X-rays of the lumbar spine and left hip at 29 August 2023 also disclosed degenerative changes which was consistent with the other investigations.
Mr Stiles referred to the later report of Dr Sunner of September 2023, in which Dr Sunner suggested surgery, as conservative measures had not worked. The quote for the surgery, Mr Stiles observed, was made to the tax department, not to his client.
Mr Stiles then considered the report of Dr Wallace of 5 October 2024.
He referred to the history taken by Dr Wallace which was consistent with the other evidence of the nature of the work Mr Taesali was doing.
Dr Wallace noted the gradual onset of right shoulder symptoms in 2022 and the right knee problems in the course of operating the foot pedal.
Dr Wallace had noted a minor musculoskeletal strain in the right shoulder which had resolved and an inflammatory arthropathy and early degenerative osteoarthritis in the right knee which, Dr Wallace said, had not been caused by work.
In answer to questions for the basis for Dr Wallace's conclusion, Mr Stiles said that with regard to the shoulder there was no evidence that Mr Taesali had had any treatment for the shoulder. He had not seen a specialist. He agreed that Mr Taesali had been on Centrelink benefits at the time.
Mr Stiles submitted that Dr Wallace's examination found a normal strength, abduction and rotation, and it was open to Dr Wallace to reach the conclusion that he had.
Mr Stiles submitted that Dr Wallace acknowledged that Mr Taesali had a limited capacity which excluded activities such as bending, squatting, crouching, et cetera, but reiterated that Dr Wallace's opinion was that that incapacity was not work-related.
Mr Stiles then submitted that the opinion of Dr Endrey-Walder was deficient because he quite simply said that the nature and conditions of employment were the main contributing factor to the incapacity.
He submitted that Dr Endrey-Walder did not take the matter any further and did not go into any detail about the use of the foot pedal by Mr Taesali and the fact that Mr Taesali was constantly using it over the period of employment.
Mr Stiles acknowledged that Mr Taesali had given that evidence in his statement, but
Dr Endrey-Walder, Mr Stiles submitted, did not have that history and did not express any opinion that pedal use was the cause of the right knee injury, whether it was a cause of the injury or whether it was an aggravation of an underlying disease process.
Mr Stiles accepted that Dr Endrey-Walder had a general history of the duties, but submitted that Dr Endrey-Walder never expressed an opinion that the duties were the cause of his knee condition.
Mr Stiles accepted that there was a further report from Dr Endrey-Walder which dealt with the shoulder condition and that a direct connection with Mr Taesali’s work had been made.
However, Mr Stiles submitted that he did not take the causation of the right knee condition any further.
Mr Stiles addressed the medical certificates that had been issued, but again submitted that they did not show any complaints about either the right knee or right shoulder before early to mid 2023 and one would have expected complaints to have been made, bearing in mind that Mr Taesali had been working for the respondent since 2013.
There was some conversation about the law regarding the concept of an expert opinion being given in the context of a fair climate. Mr Stiles concluded by saying that if I was satisfied that the knee injury had been proven but not the shoulder, that the applicant would not have been able to establish his onus that he was entitled to a finding that he had a quantifiable incapacity in the absence of acceptable evidence regarding the shoulder.
Mr Stiles submitted that Dr Wallace had taken a full history and that Dr Wallace's opinion was open to him that the shoulder injury had resolved.
Dr Wallace had further noted the pathology shown in the right knee but again, his conclusion that it was not work-related was open to him, it was submitted.
Mr Stiles submitted that Dr Wallace's conclusion that the shoulder injury had resolved, had support from the fact that on examination, Dr Wallace could not find any symptomatology. He noted that the X-ray had not shown any pathology nor any limitation of movement.

Mr Hickey in reply

Mr Hickey first noted that Dr Sunner in fact did make an application to the respondent for payment of the proposed arthroscopy on 27 September 2023 which was in the respondent's late documents.
Mr Stiles clarified that he was not making that submission.
Mr Hickey then addressed a question of whether the gout discovered in Mr Taesali’s knee was relevant.
Mr Hickey referred to an X-ray which had been commented on by Dr Victor Chan on
8 August 2023, Dr Chan being one of Mr Taesali’s GP’s.
That X-ray indicated that there were, "no crystals".[17]
[17] Respondent late documents 15 April 2025, page 139.
The finding that there were no crystals was commented on by Dr Endrey-Walder in his report of 28 February 2024, who noted there had been some concern of whether the gout might account for the swelling in the right knee, but he noted that on 28 July 2023, the fluid was drained from the right knee, which highlighted that there was no evidence of infection or gout.[18] (I note in passing that Dr Wallace made no reference to gout in his reports).
[18] ARD page 29.
Mr Hickey observed that in any event the purpose of the proposed arthroscopy was to deal with the torn meniscus.
Mr Hickey then addressed the respondent's submission that Dr Endrey-Walder’s opinion would not attract the weight that would otherwise be given to it had Dr Endrey-Walder had a full history of the duties Mr Taesali was required to do.
Mr Hickey compared the evidence given in the later statement by Mr Taesali of
23 December 2024 with the history taken by Dr Endrey-Walder on 28 February 2024. In the light of that history it could not be said that it did not fulfill the required test of a fair climate of evidence on which Dr Endrey-Walder could form his opinion.
Mr Hickey also noted that Dr Wallace had observed that Mr Taesali walked with an antalgic gait. The scans showed that Mr Taesali was suffering from pre-existing degenerative change at L3/4 and L4/5.
This, Mr Hickey submitted supported the claim for a consequential lumbar injury caused by having to favor the injured right knee.

DETERMINATION

In ACW v ACX[19] Deputy President Michael Snell considered from [51] the history of the concept of a fair climate regarding the opinions given by expert witnesses and the material upon which such opinions were based. He said:
[19] [2022] NSWPICMP 19.
“51. In Paric No. 1 Samuels JA said:
It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
52. In Paric No. 2 the High Court said:
It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.
The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
53. In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) discussed the above principles in the context of the Commission. The discussion remains applicable since the relevant commencement of the 2020 Act. Her Honour said:
82.Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83.In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell per Hodgson JA.”(Citations omitted).
In Mason v Demasi [20] Basten JA at [2] urged caution when dealing with inconsistencies based upon clinical notes. He said:
[20] [2009] NSW CA 227.
“2 First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
Mason has been cited with approval in the Commission in Qannadian v Bartter Enterprises Pty Limited[21] where DP Michael Snell said:
“35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
[21] [2016] NSWWCCPD 50.
Mr Stiles relied on the contents of the clinical notes in part to claim that Mr Taesali had not met his onus, but that approach raised the above issues as to the probative value of clinical notes. His submission that the notes were unreliable because they did not stipulate that the treatment described had been caused for work-related reasons reflects no more than the usual record keeping practices of a busy health practitioner. The attendances referred to by Mr Stiles were consistent with the histories given to all the medical practitioners and in his statement. Perhaps more importantly as to their probative value, none of the entries he referred to suggested any other cause.
Mr Stiles expressed surprise that no complaints about either Mr Taesali’s shoulder or knee pain had been made any earlier, as Mr Taesali had been working for the respondent for over 10 years, but Mr Taesali said he did not experience any shoulder pain until June 2019, and his right knee pain did not become symptomatic until late 2022. I note further that Mr Taesali appeared to be a stoic individual who was willing to put up with some discomfort without complaining. Further, Mr Taesali was consulting a GP, Dr Loh, whose attitude was such that Mr Taesali sought a second opinion in July 2023. A perusal of Dr Loh’s notes from
[22] Reply page 55.
[23] At page 56.
28 May 2019 shows entries of a general nature, the first mention of any complaint concerning Mr Taesali’s right knee being recorded on 2 May 2023.[22] Moreover, Mr Taesali’s statement that he was told by Dr Loh that his knee pain was caused by gout was confirmed in the entry of 4 May 2023, following the X-ray of his knee, that noted “better with his gout” which was noted also as a reason for the visit.[23]
Mr Stiles’ essential submission was that the Commission would accept the reports of
Dr Wallace over those of Dr Endrey-Walder. The basis for that submission was that
Dr Endrey-Walder did not have sufficient facts at his disposal on which to reach the conclusion that he did regarding the right knee condition in his report of 28 February 2024.
Mr Hickey referred in reply to a number of examples within Dr Endrey-Walder’s
28 February 2024 report that spelled out in some detail the facts on which Dr Endrey-Walder based his assumption in concluding that the type of work Mr Taesali was required to do was causative.
I accept that submission. In his report dated 28 February 2024 Dr Endery-Walder noted the physical nature of Mr Taesali’s work, including the use of foot pedals “in constant use.”
Mr Stile’s submission that this report failed to justify Dr Endery-Walder’s opinion that the “heavy duty nature of [Mr Taesali’s] daily work over a period of close to 10 years” caused symptoms in both the right shoulder and the right knee, is accordingly rejected. Mr Stiles accepted that Dr Endrey-Walder’s second report of 2 April 2024 was sufficient to explain the facts on which his opinion regarding the right shoulder condition was based, but the detail of the duties Mr Taesali was doing recorded in Dr Endrey-Walder’s earlier report was also sufficient to establish a prima facie case regarding the right shoulder condition in any event. The relevant authorities regarding the sufficiency of the assumed facts to an expert’s opinion are referred to above, and the assumptions on which Dr Endrey-Walder based his opinions in his report of 28 February 2024 are clearly expressed regarding the right knee injury, and are in accordance with both principle and common sense.
Mr Stiles relied on the report of Dr Wallace to rebut the prima facie case made out by
Mr Taesali.
Dr Wallace suggested that all Mr Taesali’s problems had been caused by a degenerative condition, although he had to acknowledge that the right shoulder condition had been caused by the nature of Mr Taesali’s duties, but he nonetheless found that the aggravation to the degenerative changes in the shoulder had resolved.
There was no explanation given by Dr Wallace as to when that resolution might have occurred or indeed the facts and circumstances which caused him to come to that conclusion. The history he took was that Mr Taesali “noted the gradual onset of right shoulder pain in the course of his duties at work in 2022”.[24] This was against a more general history Dr Wallace earlier took that:
"In 2023, he was employed on a full-time basis with work duties including repairing pallets, using tools, including a grinder, nail gun and hammer. He was also required to operate a foot pedal repetitively to turn the pallets over."
[24] Reply page 25.

Dr Endrey-Walder’s comments regarding the differing range of motion measurements in the right shoulder have been noted. It is well known that ranges of motion can vary between examinations, and the contrast with the measurements five months before by Dr Wallace as opposed to those taken by Dr Endrey-Walder demonstrated a continuing problem.
Dr Endrey-Walder postulated that Dr Wallace’s opinion that the shoulder condition had resolved was based on the significant difference in range of motion when compared to
Dr Wallace’s measurement at that earlier time. Dr Endrey-Walder accepted Mr Taesali as presenting in a genuine manner, and accepted that the measurable moderate restriction of motion he took demonstrated that Mr Taesali’s shoulder condition had not resolved. I accept that opinion, but note further that the MRI scan requested in Dr Endrey-Walder’s report of
28 February 2024 was shown to reveal supraspinatus tendinosis, bicipital tendinosis with subluxation of the long head biceps, which in his report of 2 April 2024, Dr Endrey-Walder noted was “much in line with my clinical assessment”. Dr Wallace, whose reports were all dated 5 October 2023, did not see that scan, but relied on an X-ray of the right shoulder dated 17 July 2023 as showing no abnormality. Had Dr Wallace seen the later investigation with its enhanced radiographic capability, he might well have altered his view about resolution. I accordingly reject Dr Wallace’s opinion.
Dr Wallace noted that the right knee condition gradually became symptomatic whilst operating the foot pedal in 2022. Whilst he advised that there was “no objective medical evidence” to confirm a work-related injury, he thereupon accepted that MRI investigation on 10 August 2023 had revealed “extensive synovitis with pre-existing degenerative osteoarthritis involving the medial and patellofemoral compartments”.[25] His comment that the right knee condition “has not been caused by any work-related trauma” rather begs the question as to his finding that there was no objective medical evidence in the face of that MRI investigation. In any event, it has never been suggested that the right knee had undergone a “trauma”, but rather that the injury was of a gradual onset. Further, the pathology indicated on the MRI scan may well have been relevant had Dr Wallace considered the possibility that the pathology within the knee which he described as “inflammatory arthropathy”[26] had been aggravated.
[25] Reply page 28.
[26] Reply page 28.
Dr Endrey-Walder on 28 February 2024 was of that opinion, finding that the knee injury “consists in the aggravation, acceleration, exacerbation and deterioration of disease if gradual onset, the main underlying contributing factor to this having been the nature and conditions of your client’s employment with Brambles Industries”.[27]
[27] ARD page 34.
With respect, for the above reasons, I agree.
No submissions were addressed by Mr Stiles to the claim regarding the consequential lumbar spine condition. Mr Hickey referred to the evidence of Dr Endrey-Walder in support of the claim, which recorded Mr Taesali’s complaint of the onset of lower back pain, relevantly, as a result of his putting more weight on his left leg because of his right knee pain. This was the only evidence from Mr Taesali as to his back complaint, as his statement was silent on that subject.
Dr Endrey-Walder noted the X-ray result of 29 August 2023, which showed some pathology, and supported the claim, saying, to repeat:[28]
“Today [Mr Taesali] also made mention of central lower back pain which he attributed to overload of his left limb at take the weight off the painful right knee over the past couple of years.”
[28] ARD page 33.
Dr Wallace did not mention any complaint about the lower back and did not assess it in his reports of 5 October 2023. No later report was lodged following Dr Endrey-Walder’s report of 28 February 2024, and no explanation was given as to why Dr Wallace had not been asked to comment.
It is reasonable that Mr Taesali’s right knee condition would cause him to adopt an antalgic gait which in turn would cause back pain. Mr Taesali was shown to have degenerative pathology from L3-S1 and accordingly the consequential condition of back pain has been established,
Also claimed pursuant to s 60(5) of the 1987 Act was a declaration that the proposed surgery consisting of an arthroscopic meniscectomy, chondroplasty and debridement to the right knee was reasonably necessary, as recommended by Dr Sunner in his report of 27 September 2023.[29] As noted, Mr Stiles submitted that the application was opposed in view of the opinion of Dr Wallace that the right knee injury was not work related. This opinion has been rejected, and no submissions were made as to any other ground of denial. Dr Sunner stated:
“I have advised [Mr Taesali] that if the previously mentioned treatments have not worked, then the next step would be to do a knee arthroscopy where we can do a partial meniscectomy if required and do a general debridement…”
[29] ARD page 89
The previous treatments had been by way of physiotherapy and medication, and I am satisfied that the surgery is reasonably necessary. It is appropriate in the face of the failure of conservative measures, it is potentially effective and has not been opposed on any other ground.
The PIAWE figures and indexed rates were agreed as follows:
PIAWE:
·    $1,327.84;
·    Indexed 1 October 2023 - $1,360;
·    Indexed 1 April 2024 - $1,380;
·    Indexed 1 October 2024 - $1,410, and
·    Indexed 1 April 2025 - $1,420.
Section 36 (95%):
·    17 July 2023 – 30 September 2023 - $1,261.45, and
·    1 October 2023 – 15 October 2023 - $1,292.
Section 37 (80%):
·    16 October 2023 – 31 March 2024 - $1,088;
·    1 April 2024 – 30 September 2024 - $1,104;
·    1 October 2024 – 31 March 2025 - $1,128, and
·    1 April 2025 to date and continuing - $1,136.
Mr Hickey referred to the certification that was before the Commission, and in accordance the applicant lodged his wages schedule. The PIAWE has been agreed at $1,327.84, which has affected the calculations therein. Accordingly the weekly compensation payable to
Mr Taesali is as follows:
Period- 17 July 2023 to 30 September 2023: PIAWE 1,327.84
First entitlement period at 95% = $1,261.45
Period- 17 July 2023 – 21 July 2023 - less $356.04 earned = $905.41
22 July 2023 – 28 July 2023 - less $901.96 earned = $359.49
29 July 2023 – 4 August 2023 - less $1,020.64 earned = $240.80
5 August 2023 – 18 August 2023 no loss
19 August 2023 – 25 August 2023 - less $796.63 earned = $464.82
26 August 2023 – 30 September 2023 no capacity = $1,261.45 per week
Period- 1 October 2023 – 15 October 2023: PIAWE indexed to $1,360
First entitlement period at 95% = $1,292
1 October 2023 – 13 October 2023 no capacity = $1,292
14 October 2023 – 15 October 2023 no capacity = $369.13
Second entitlement period to 31 March 2024: PIAWE $1,360 at 80% = $1,088
16 October 2023 – 31 March 2024 no capacity = $1,088 per week
Second entitlement period to 30 September 2024: PIAWE indexed to $1,380 at
80%= $1,104
1 April 2024 – 30 September 2024 no capacity = $1,104 per week
Second entitlement period to 31 September 2024: PIAWE indexed to $1,410 at
80% = $1,128
1 October 2024 – 23 December 2024 no capacity = $1,128 per week
I note that the claim for weekly benefits was ongoing, but the schedule only included up to the completion of the second entitlement period. The parties have leave to approach in that regard.
Accordingly, I make the above orders.

[2025] NSWPIC 227

26 May 2025