Trogami Pty Ltd t/as IGA Supermarket Bourke v McNeil - [2013] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Trogami Pty Ltd t/as IGA Supermarket Bourke v McNeil [2013] NSWWCCPD 14
APPELLANT:		Trogami Pty Ltd t/as IGA Supermarket Bourke
RESPONDENT:		Peter McNeill
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-10161/11
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:		7 December 2012
DATE OF APPEAL DECISION:		19 March 2013
SUBJECT MATTER OF DECISION:		Causation; application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; whether ankle injury resulted from earlier accepted work injury to the thigh
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stephen Lee Legal
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 7 December 2012 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) and whether an injury to the worker’s right ankle, which occurred when he fell from a veranda at his home in January 2010, resulted from an accepted work injury to his right thigh in 2003.

BACKGROUND

Peter McNeill worked for the appellant employer, Trogami Pty Ltd t/as IGA Supermarket Bourke (Trogami), as a security guard. While attempting to remove a person from the store on 3 January 2003, he was kicked in his right thigh. He attended Bourke District Hospital the same day and subsequently saw several different doctors at the Darling River Medical Centre.
On 14 October 2004, he settled a claim for lump sum compensation in the sum of $3,375 in respect of a 2.7 per cent whole person impairment because of continuing symptoms in his right thigh. The condition of his right thigh has deteriorated and, in July 2008, Dr Bentivoglio, orthopaedic surgeon, assessed him to have a seven per cent whole person impairment.
In late January 2010, Mr McNeill was walking on the veranda at his home when he fell and injured his right ankle. The exact cause of his fall is the subject of debate and is discussed below. His case is that the injury to his thigh in 2003 caused instability in his right knee, which gave way, and caused him to fall and injure his right ankle.
In proceedings commenced in the Commission in November 2011, Mr McNeill claimed lump sum compensation of $21,125 in respect of a 15.3 per cent whole person impairment due to the deterioration in his right thigh and the condition of his right ankle. He withdrew a claim for weekly compensation and an allegation that he had injured his back in a second fall in May 2010.
The appellant disputed liability on the grounds that the fall in January 2010 was unrelated to the 2003 injury, but consented to the claim for additional lump sum compensation for the deterioration in the right thigh being referred to an Approved Medical Specialist for assessment.
At the arbitration, Mr Judd appeared for Mr McNeill and Mr P Perry appeared for the appellant employer. The arbitration proceeded with oral submissions, but neither side sought leave to call any oral evidence. The Arbitrator said (at [7]) that his task was to determine whether or not there was any causal connection between the right ankle injury and the injury to the right leg in 2003. He was satisfied that such a connection existed because the injury to the right thigh led to instability in Mr McNeill’s right knee, which gave way in January 2010 and caused the ankle injury.
The Commission issued a Certificate of Determination on 7 December 2012 in the following terms:
“1. I refer to the Registrar to have an Approved Medical Specialist assess the applicant’s right lower extremity (thigh) for additional whole person impairment for the injury of 3 January 2003 and the consequential injury to the applicant’s right lower extremity (ankle).
2. The Approved Medical Specialist is to have regard to the earlier settlement of whole person impairment for the right lower extremity (thigh), these reasons and the exhibits in this case.
3. The respondent will pay the applicant’s costs as agreed or assessed to which costs I provide an uplift of 20 per cent for complexity to both parties.”
The appellant has appealed the Arbitrator’s finding of a causal connection between the injury in 2003 and the ankle injury in 2010.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred:
(a)     in determining liability on an affirmative answer to the question “Did the worker’s right knee give way in the event in January 2010 as a result of the work injury of 7 [sic] January 2003?”, when the logically anterior question was, “has the worker established that his fall in January 2010 resulted from a failure in his right knee?”;
(b)     to the extent that he addressed the anterior question, by ignoring the fact that the worker confessed to Dr Messerschmidt that “he does not recall how he came to fall”, and to Dr Burgess that “he is not sure whether the problem was the knee or what”, and
(c)     in his application of Kooragang, in ignoring evidence of a clear breach of the commonsense chain of causation, namely, the absence of injury to, or instability in, the knee.

CHRONOLOGY

Shortly after the assault, Mr McNeill attended on numerous general practitioners at the Darling River Medical Centre. In the following chronology, I have only referred to those attendances considered relevant to the current claim or those that have been referred to by the parties or the Arbitrator. I have also included references to the evidence from qualified and treating specialists where appropriate. Unless otherwise stated, all the doctors referred to below are general practitioners at the Darling River Medical Centre.
On 7 January 2003, Mr McNeill saw Dr Jodlowski-Tan, who recorded that his right leg was too sore to walk on, the right leg shook, and the (right) knee had collapsed on him that afternoon. On examination, the doctor noted:
“Walking with a limp. Large haematoma with purplish green bruising across the lower end of the quadriceps. A bit boggy superficial to the patella. Tender both sides of the lower patella. Cannot extend knee to 180 deg. Only to about 160deg [sic].”
On 13 January 2003, Dr Jodlowski-Tan recorded that the swelling was down and Mr McNeill could straighten his leg but could not bend his knee. He added that the “[l]eg goes into spasms and it shakes” and that it shook every 10–15 minutes over an hour the previous evening. On examination, Mr McNeill was in “extreme distress when weight bearing”. The haematoma had gone down, but Mr McNeill was very tender and hot over the previous swelling. The patella was “very tender”. Mr McNeill was advised to obtain crutches and to try not to bend his knee if it hurt.
On 14 January 2003, Mr McNeill’s mother told Dr Jodlowski-Tan that her son had “shakes” the previous night.
On 22 January 2003, Mr McNeill saw Dr Hamish Meldrum, who noted bruising on the right thigh. Mr McNeill saw Dr Meldrum again on 29 January 2003, when some (mild) improvement was noted and the doctor recorded, among other things, “[q]uery infected scar on knee”. The bruising was “much improved” at the attendance on Dr Meldrum on 19 February 2003.
Mr McNeill saw Dr Patrick, surgeon, for a medicolegal examination on 7 March 2003. Dr Patrick took a history that Mr McNeill had been kicked forcibly in the front of the right thigh and knee. Mr McNeill complained of pain in his right thigh, right hip and right knee region. In cold weather, his right leg shook. His gait was “significantly antalgic with [a] marked limp favouring (sparing) the right lower limb”. There was increased patellofemoral crepitus in both knees, but “a reasonably stable knee joint”. Dr Patrick diagnosed a resolving haematoma and a degree of post-traumatic chondromalacia patellae at the right knee, with quadriceps tendonitis/enthesopathy.
Dr Ross Lamplugh noted that Mr McNeill was still limping markedly on 12 March 2003, though he questioned the necessity for that.
On 8 May 2003, Mr McNeill saw Dr Myles Coolican, orthopaedic surgeon at the Royal North Shore Hospital, a doctor he had seen eight years previously for bilateral knee arthroscopies and open lateral releases for patellofemoral pain. Dr Coolican had seen Mr McNeill intermittently after that surgery because of “troubles in the right knee, but the knee was fairly serviceable for a number of years”.
Dr Coolican took a history that Mr McNeill had been kicked “around the front of the right knee” on 3 January 2003 and that, since then, he had pain on both sides of the patella, which was made worse by standing and kneeling. He was usually comfortable with stairs, but found that squatting hurt and was associated with cracking of the knees. His knees were occasionally swollen in the past, but not lately. The right knee felt “as though it will give way”.
On examination by Dr Coolican, both knees had full motion and no effusion. All ligaments were stable and there was no joint-line tenderness. McMurray’s test for both menisci was negative. The right patella was irritable. Radiographs of the right knee were normal. Dr Coolican said that Mr McNeill’s symptoms were arising from the patellofemoral joint, which had been irritated as a result of the injury. No surgery was required and Dr Coolican felt that Mr McNeill “ought be improved by a rehabilitation program for his quadriceps”.
On 12 September 2003, Mr McNeill saw Dr Oliver Haisken, complaining of further problems with his right leg about six weeks earlier. There was bruising of the anterior thigh, but the knee joint was stable, with no effusion.
On 15 September 2003, Mr McNeill saw Dr Meldrum, complaining of right leg pain. He had unusual blotchy bruising on his right thigh and was admitted to hospital until 18 September 2003.
Dr Lamplugh recorded on 14 November 2003 that Mr McNeill was improving with intensive physiotherapy.
On 4 December 2003, Mr McNeill saw Dr Patrick a second time and complained of continuing pain in his right thigh going down to the right knee, and anterior right knee pain. He also felt pain deep inside the right knee. His right leg seemed to “shake” less often. His gait was “more normal” – minimally antalgic – favouring the right leg. There was increased patellofemoral crepitus in the knees, with a positive compression test on the right. The knee joint was stable, with collateral and cruciate ligaments clinically intact. There was some muscle weakness “with regard to both right hip flexion and right knee extension Grade 4/5 to repeat examination”.
On 17 December 2003, Dr Okwun Ojah recorded that Mr McNeill was still having physiotherapy exercises for his right quadriceps and that he was getting better, but still needed the exercises. He had no new complaints.
Mr McNeill saw Dr Bodel, orthopaedic surgeon, at the request of Arnold Lawyers (presumably acting on behalf of the appellant) on 12 February 2004. Dr Bodel took a history of the assault and that Mr McNeill complained of painful stiffness in the knee and that he could not kneel or squat. On examination, Mr McNeill was observed to walk with a mild flat-footed gait on the right side. There was a slightly increased valgus angulation in both knees, which was a congenital variant. The right thigh was 1 cm smaller than the left. There was mild tenderness in the distal part of the quadriceps muscle just above the patella on the right and a lack of 20 degrees of flexion on that side. There was no ligament laxity or reflex abnormality in the legs, no retropatellar discomfort and no sign of sensory impairment in the legs.
Dr Bodel thought that the restriction of knee flexion on the right was due to tethering of the quadriceps muscle, which could have arisen as a result of the injury. He encouraged continued exercise and passive stretching, particularly of the quadriceps muscles. He thought there seemed to be a direct causal link between the injury in 2003 and Mr McNeill’s ongoing complaints in his right leg.
On 23 February 2004, Dr Ojah recorded that Mr McNeill walked without an antalgic gait and had mild tenderness at the lateral upper third of the right thigh and lower lateral (thigh). Movement of the knee joint was “okay”.
Dr Ojah certified Mr McNeill fit for work on 5 March 2004, but recorded on 18 March 2004 that Mr McNeill’s thigh pain was felt again, though it was not as severe as it used to be. The doctor thought he was able to return to normal duty.
On 24 March 2004, Mr McNeill made a statement in which he said he continued to experience pain in his right thigh running down to his knee. It seemed worse in cold weather and he tended to have increased pain and cramps at night. He felt pain deep inside his right knee. For a number of months after the assault, he would notice that his right leg would shake, particularly in cold weather. Though the shaking had subsided to a large extent, it still occurred.
Between 2004 and 2008, Mr McNeill attended at the Darling River Medical Centre on about 148 occasions for various problems, including, but not limited to: left shoulder pain, back pain, chest and respiratory problems, insomnia, headaches, sore throat, warts on his right hand, right shoulder pain. In this period, there are no records of Mr McNeill complaining of any symptoms in his right leg.
On 9 April 2008, Mr McNeill saw Dr Van Lill and expressed concern about his right leg. Mr McNeill felt that his pain was related to the assault in 2003. Dr Van Lill noted that Mr McNeill’s right thigh was normal in size and shape, but tender on deep pressure. Dr Van Lill recorded that Mr McNeill had not been seen at the practice for this problem since 2004 and that Mr McNeill said he had pain and took painkillers.
Dr Van Lill noted on 21 May 2008 that the ultrasound revealed fatty necrosis or an old haematoma.
On 2 June 2008, Mr McNeill saw Dr Messerschmidt, who took a history of the 2003 assault and that the “injuries [sic] came back on the leg”, were “affecting the hip” and kept Mr McNeill awake at night. Mr McNeill was walking without difficulty and Dr Messerschmidt questioned “possible trochanter bursitis of the right hip”. He gave him a Depo-Medrol injection.
On 27 June 2008, Dr Messerschmidt recorded that Mr McNeill’s leg and hip were troubling him. The injection had only helped for a short while. Dr Messerschmidt raised the question of a spinal problem, not related to the injury.
On 10 July 2008, Dr Messerschmidt said that Mr McNeill had seen a specialist in Dubbo and recorded “? has a problem with the ? bloodflow [sic] in the leg and also a problem with the patella”. On examination, Mr McNeill was sore to touch all over the leg and lumbar spine.
On 16 July 2008, Mr McNeill saw Dr Bentivoglio for a medicolegal assessment at the request of his solicitors. Dr Bentivoglio took a history that Mr McNeill had been kicked in the right thigh in 2003 and that he continued to experience symptoms in that region. The pain extended from the knee to the hip and back area. Walking made the symptoms worse. On a good day, he was only able to walk about 400 metres before he had to stop and, on a bad day, he was only able to walk 200 metres. Mr McNeill felt he had regained the movement in his knee and hip region but not the strength. His symptoms were worse at the end of the day and he did not feel there had been any improvement in his symptoms in recent years.
On examination, Dr Bentivoglio observed Mr McNeill to walk without a limp. He had a full range of movement in both hips and knee regions. While there was no wasting of his calf, there was minor muscle wasting in the right thigh. His knees were stable, with no joint-line tenderness, and his patellae appeared to track normally. There was some evidence of minor chondromalacia patellae, which was a pre-existing problem corrected by his lateral releases.
Though the ultrasound showed no evidence of any muscle rupture, Dr Bentivoglio felt that Mr McNeill would still have some degree of weakness present involving his hip flexor muscles and his knee extensor muscles.
On 18 November 2008, Mr McNeill saw Dr Rowe, orthopaedic surgeon, for a medicolegal assessment at the request of the insurer. He complained of an intermittent ache over the front of the whole of the right thigh, virtually from the front of the groin to the front of the knee, which seemed to occur irrespective of activity or posture. When the ache occurred, it may last for a few hours or for a few days. He may then have no problem for a few days or a week. Sometimes there was an ache in the side of the hip and sometimes an ache in the buttock, but they were less severe than the ache in the front of the thigh.
Dr Rowe observed Mr McNeill to walk with a normal gait. He was able to walk independently on his toes but, when walking on the toes of his right foot, the front of the right thigh was sore. Squatting was limited to two-thirds because of soreness in the right knee and front of the right thigh. His right hip was irritable and restricted, especially in flexion and internal rotation. The thigh muscles were normal, with no measurable wasting. The right knee was stable. Mr McNeill experienced some discomfort in the front of the thigh at the limit of flexion, of which there was a minor restriction (130 degrees, compared to 140 degrees on the left).
Dr Rowe felt that Mr McNeill’s right thigh pain could not be explained by the work incident in 2003, but was possibly arising from pathology in the right hip joint with a lesser chance that it was arising from pathology in the (right) knee. He thought that plain x-rays of the hip and knee would be helpful. Dr Van Lill arranged for x-rays of the right femur, hip and pelvis.
On 4 February 2009, Dr Van Lill saw Mr McNeill to discuss the x-rays and recorded that the “hips, femur and knee seems [sic] to be in good shape”.
On 20 May 2009, Mr McNeill saw Dr Van Lill and requested something for the pain (in his right thigh) because Panadeine was not working. Dr Van Lill prescribed tramadol hydrochloride.
On 2 June 2009, Dr Messerschmidt recorded that the pain in Mr McNeill’s leg was “giving him hell”. The doctor queried whether Mr McNeill had neuropathic pain.
On 22 July 2009, Dr Van Lill recorded that an ultrasound and CT scan of the right thigh revealed fatty necrosis and fibrous bands. An x-ray of the knee showed no abnormality. Dr Van Lill referred Mr McNeill to a specialist, Dr Meulman.
On 19 August 2009, Dr Van Lill recorded that Dr Meulman said there was no haematoma and no surgery indicated. Dr Meulman recommended physiotherapy, which Mr McNeill had previously tried with no improvement. Mr McNeill asked for a referral to another specialist, stating that his pain was unbearable. Dr Van Lill referred Mr McNeill to Dr Grassby, general surgeon.
Mr McNeill saw Dr Grassby on 28 September 2009. In his report to Dr Van Lill of the same date, Dr Grassby recorded a history of the 2003 assault in which Mr McNeill had been kicked in the thigh. Mr McNeill complained of pain in the lower lateral aspect of the right thigh. Examination of the (right) knee showed full range of movement passively and actively with no laxity of the cruciate ligaments or the lateral ligaments. There was diffuse non-specific and non-focused discomfort on rubbing or palpating the right thigh, but no mass felt. Mr McNeill walked with a normal gait and was able to rise from a sitting position without the use of a crutch.

On 12 October 2009, Mr McNeill saw Dr Messerschmidt complaining of pain in the right groin and down the leg.
On 29 January 2010, Dr Van Lill reviewed Mr McNeill and recorded “f/u of right ankle injury”. The doctor made no note of how or when the ankle injury occurred.
On 11 March 2010, Mr McNeill saw Dr Van Lill for his ankle. The doctor recorded, among other things:
“needs a letter to his sollisitor [sic] stating that fall that caused [the] ankle injury, could have been caused by his ongoing thigh issues I agree with that.” (punctuation as per original)
On 30 March 2010, Dr Messerschmidt recorded the following history from Mr McNeill:
“6 weeks ago he fell off the veranda
Injured the ankle.
Right leg gave way and he fell onto the sement [sic]
Has no recollection of how it happened and he was not drunk his mum adds.
Was taken to the hospital and had an x-ray taken
Was treated for a sprain but it turned out to be a fracture.
Was in plaster for 2 weeks and is [sic] was removed 4 weeks ago.
No physio.” (punctuation as per the original)

On 19 May 2010, Dr Van Lill recorded that Mr McNeill had had another fall in the bathroom, injuring his lower back, and had pain down his right leg.
On 22 June 2010, Mr McNeill saw Dr Flecknoe-Brown, clinical haematologist, at the request of the insurer. He thought he was being asked to comment on whether “a coagulation factor deficiency could have contributed to Mr McNeill’s injuries, whether there [was] an ongoing issue with coagulation deficiency, and whether it [was] safe for Mr McNeill to undergo surgery”, given his family history. He said there was no reason to suspect any problem with Mr McNeill’s coagulation system.
Dr Flecknoe-Brown noted a continuity of symptoms around the right thigh that suggested an injury as a result of the assault and so, on general principles, said that Mr McNeill’s employment with the appellant continued to be a contributing factor to his abnormal gait and complaints of pain.
Mr McNeill signed a supplementary statement on 22 June 2011 in which he said that his work-related injuries had worsened since the settlement in 2004. In respect of the January 2010 incident, he said that he was at home walking on the veranda when his “right leg gave way”, causing injury to his right ankle. He said he had injured his back in another fall on or about 18 May 2010, at home in the bathroom, as a result of his right leg giving way.
On 16 August 2011, Mr McNeill saw Dr Burgess, orthopaedic surgeon, for a medicolegal assessment at the request of his new solicitors. In his report of 24 August 2011, Dr Burgess took a history of the 2003 incident and that Mr McNeill had continuing pain in his thigh, which caused him to limp. Dr Burgess added:
“Apparently the swelling took months to settle down and the pain never went away. He states his quadriceps became weak and some time [sic] in January last year he says his right leg ‘gave way’ under him. He is not sure whether the problem was the knee or what but he fell down and hurt his right ankle causing it to become painful and swollen.”
Dr Burgess recorded that Mr McNeill complained of constant pain in his right quadriceps, which was made worse by being on his feet and walking. He also had pain in his right knee which appeared to be focused in the patellofemoral compartment, because he was intolerant of patellofemoral loading stresses such as kneeling, squatting and holding his knee flexed for prolonged periods. His knee felt weak, “click[ed]”, “crack[ed]”, and threatened to “give way”. Dr Burgess said that it “may have been his knee that caused him to fall”.
On examination of the right knee, there was an antalgic reaction to palpating the knee on virtually all its aspects. Mr McNeill appeared to have retropatellar tenderness medially, and medial and lateral joint-line tenderness. He flexed his knee to 90 degrees and had full extension. There was a Grade IV weakness of his knee extensors and 1 cm of quadriceps wasting.
Under “Opinion & Prognosis”, Dr Burgess referred to the 2003 injury and added:
“He was further injured in two falls he says as a result of his right leg ‘giving way’. He says this was a legacy of the weakness of the quadriceps and could have been a problem in his knee.”
Acknowledging that the exact cause of the persistence in the intensity of the pain (in the right thigh) was difficult to assess by any means other than suggesting “some kind of conversion reaction”, Dr Burgess said that the “disability seems real enough”. He concluded:
“Weakness and dysfunction in his right thigh caused a fall which has added what appears to be a significant lateral ligament complex injury to his right ankle and a level of chondromalacia patella in his right knee and a low back pain syndrome.
…
His problems all appear to be a legacy of his assault, notwithstanding the history of patellar tendon realignment in his right knee that was causing him no trouble prior to the more recent injury.”

SUBMISSIONS

Appellant’s submissions

The appellant’s submissions, which were prepared by Mr Perry, may be summarised as follows:
(a)     it was necessary for the Arbitrator to determine what caused the fall in January 2010 and Mr McNeill had not established that his right knee gave way;
(b)     the Arbitrator’s focus was on whether there was a link between the 2003 blow to the thigh and the right knee giving way in January 2010;
(c)     the anterior question, which the Arbitrator ought to have assessed, but failed to assess, was whether Mr McNeill had established that the fall in January 2010 resulted from the knee giving way;
(d)     Dr Burgess’s history contained the concession that Mr McNeill was “not sure whether the problem was the knee or what but he fell down and hurt his right ankle”;
(e)     when Dr Burgess’s history was combined with the account to Dr Messerschmidt on 30 March 2010, which was that Mr McNeill had no recollection of how it happened, it was clear that Mr McNeill did not recall how it was that he came to fall;
(f)      it does not assist Mr McNeill that Dr Van Lill recorded in March 2010 that Mr McNeill needed a letter to his solicitor that the fall caused the ankle injury and “could have been caused by his ongoing thigh issues”. The critical word was “could” and it was noted that there was no letter from Dr Van Lill tendered to support Mr McNeill’s case;
(g)     Mr McNeill did no more than establish “that he fell on or about 28 January 2010”;
(h)     At [11] of his submissions, Mr Perry said:
“The result of this is that the worker did no more on the evidence that he placed before the arbitrator than establish that he fell on or about 28 January 2010. It is clear from the entry of Dr Van Lill of 29 January 2010 that he had suffered a right ankle injury. He was given a [T]oradol injection at the hospital; no records of the hospital are produced. The learned arbitrator rejected the proposition that [Mr McNeill’s] case did no more than establish he had fallen. The recordings ‘right knee gave way’ are in the circumstances no more than speculation by the worker. There are, of course, multiple reasons why he might have fallen from the verandah”;
(i)      this error alone is sufficient for the decision to be reversed, and
(j)      it was incorrect for the Arbitrator to conclude that the facts established that the knee was affected by instability beyond 2003. The chronology demonstrates that it was not. There was no suggestion of instability and no account by Mr McNeill of instability. On examination by the medical practitioners, there was never a laxity of either the posterior or anterior cruciate ligament, no impairment in the range of movement of the knee, and no effusion. None of this was given any attention by the Arbitrator.

Worker’s submissions

Notwithstanding that counsel appeared at the arbitration, Mr Young, a solicitor, has prepared the submissions on appeal, on behalf of Mr McNeill. After noting the evidence referred to by the Arbitrator, Mr Young submitted:
(a)     the chronology prepared by Mr Perry (which was not identical to the chronology I have set out above) was superficial and had no probative purpose;
(b)     there was a consistent chronological history of Mr McNeill complaining to various medical practitioners of problems with the right knee “essentially from the time he was injured in January 2003 to the time he was injured on 29 January 2010”;
(c)     no mention was ever made by the appellant and no complaint made that hospital records had not been produced, and the proposition propounded by Mr Perry at [11] of his submissions was not put to the Arbitrator and there is no record of it ever being rejected (exactly which of the several propositions at [11] Mr Young was referring to was not identified);
(d)     to say, as Mr Perry said, the “recordings ‘right knee gave way’ are in the circumstances no more than speculation by [Mr McNeill]”, failed to consider the evidence the Arbitrator directed himself to, and
(e)     paragraph [11] of the appellant’s submissions does not demonstrate any error by the Arbitrator.
I have found these submissions of limited assistance and they have, yet again, highlighted the need for counsel to be briefed on appeal.

DISCUSSION AND FINDINGS

I do not accept that the Arbitrator failed to assess whether Mr McNeill had established that the fall in 2010 resulted from his knee giving way or that he failed to address the “anterior question”. The Arbitrator acknowledged that Mr McNeill was not sure whether the problem (that caused him to fall) was his knee or something else. That uncertainty did not prevent a finding in favour of Mr McNeill, but required careful consideration of the medical evidence and the histories in that evidence.
The Arbitrator had to determine if the fall resulted from the 2003 injury. He properly focused on that issue and was satisfied that it had because, as a result of the injury in 2003, Mr McNeill suffered right knee instability on 29 January 2010 that led to him falling from the veranda ([46]). He based this conclusion on the following:
(a)     the notes from Dr Messerschmidt on 30 March 2010 which (the Arbitrator said) recorded that Mr McNeill’s right knee gave way;
(b)     Mr McNeill’s knee “became shaky and gave way” (at [48]) in January 2003;
(c)     the clinical notes (from Darling River Medical Centre) revealed the haematoma in the right thigh eventually went down, but the bruising continued. Mr McNeill was having trouble weight bearing, “with the patella very tender shaking in the leg and [he] was only able to straighten the leg only after a few weeks” (at [49]). Dr Coolican had recorded Mr McNeill’s statement that, since the assault, his right knee felt it would give way. Though Dr Coolican had operated on the knees in about 1997 (with a good result), “the assault in January 2003 had aggravated [Mr McNeill’s] condition”, and
(d)     Dr Burgess said that the pain in Mr McNeill’s right leg (from the assault) never went away, his quadriceps became weak and that “weakness and dysfunction in [Mr McNeill’s] thigh caused [the] fall” in 2010.
He concluded, at [53]:
“On the history that the applicant continued to suffer pain and disability in his right leg from 2003 onwards, the fact that very close to his assault in 2003 his knee gave way and he had quadriceps weakness and dysfunction I find that the right ankle injury January 2010 has sufficient connection to the assault in 2003 to the applicant’s right thigh which in turn led to instability in his right knee. I find as fact that the applicant’s right knee gave way on or about 29 January 2010 as a result of the assault he suffered in January 2003.”
This conclusion was open on the evidence and was supported by the following:
(a)     evidence of the right knee giving way after the 2003 injury, as demonstrated by the evidence recorded by Dr Jodlowski-Tan that the right knee had collapsed on the afternoon of 7 January 2003;
(b)     evidence of distress when weight bearing, as recorded by Dr Jodlowski-Tan on 13 January 2003;
(c)     evidence from Dr Coolican in May 2003 that the right knee felt as though it would give way;
(d)     evidence from Dr Patrick in December 2003 that, notwithstanding that the knee was stable, Mr McNeill had Grade 4/5 muscle weakness in both his right hip flexion and right knee extension, a finding also made by Dr Burgess and Dr Bentivoglio;
(e)     the fact that, though there had been some improvement in Mr McNeill’s symptoms in 2003, his unchallenged evidence, which the Arbitrator accepted, was that he continued to have right leg symptoms up to (and after) the fall in 2010;
(f)      Dr Bentivoglio’s evidence in 2008 that, while Mr McNeill had regained movement in his knee and hip, he had not regained strength;
(g)     evidence of muscle wasting in the right thigh found by Dr Bentivoglio and Dr Bodel;
(h)     Dr Van Lill’s note of 11 March 2010 that he agreed that the fall could have been caused by the ongoing thigh issues, and
(i)      Dr Burgess’s evidence that, notwithstanding Mr McNeill’s admitted uncertainty as to the exact cause of the fall, it was caused by weakness and dysfunction in the right thigh, which was a legacy of the 2003 injury.
The Arbitrator’s conclusion was not inconsistent with Dr Rowe’s evidence that squatting was limited because of soreness in the right knee and front of the thigh, which restricted squatting to two-thirds, though that in itself was of limited weight and certainly not decisive.
I have not overlooked that fact that there is no reference to Mr McNeill having complained of his knee or thigh at the Darling River Medical Centre between late 2004 and 2008. That is not determinative of the dispute and it was open to the Arbitrator to accept, as he did, that Mr McNeill’s symptoms continued in that period and that the fall was caused by the right knee giving way, as it had on a previous occasion after the 2003 injury.
That Mr McNeill told Dr Messerschmidt that he had no recollection of how the fall happened is not determinative. Dr Messerschmidt also recorded that Mr McNeill’s right leg gave way. Though the Arbitrator recorded this as the “right knee”, that error makes no difference to the outcome. Dr Messerschmidt’s note of the right leg giving way was consistent with Mr McNeill’s statement on 22 June 2011 and his history to Dr Burgess. His uncertainty was about the exact cause of the giving way and that question had to be determined by reference to all the evidence, including the expert evidence from Dr Burgess, whose opinion was not challenged by any contrary expert evidence tendered by the appellant.
I do not accept that Mr McNeill’s evidence that his right leg gave way was no more than speculation. While it was clearly not enough on its own for him to succeed, it was evidence the Arbitrator was entitled to consider and, combined with the expert evidence from Dr Burgess, provided sound support for the Arbitrator’s conclusion on causation.
Causation can be established by a process of inference which combines primary facts like “strands in a cable” rather than “links in a chain” (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 (McGuiness) per Spigelman CJ at [91] citing Wigmore on Evidence (3rd ed) para 2497). That is essentially the approach the Arbitrator took when he referred (at [53]) to Mr McNeill’s pain and disability from 2003 onwards, the giving way of the right leg in 2003, the quadriceps weakness and dysfunction, and the giving way on or about 29 January 2010.
Dr Van Lill’s note that he agreed the fall could have been caused by the ongoing thigh issues was evidence the Arbitrator referred to at [22], though it is unclear what weight he placed on it in reaching his conclusion. Nevertheless, as noted above, it was evidence that supports his conclusion and Mr Perry’s emphasis on “could” does not advance the appellant’s position. As observed by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [61], citing McGuiness:
“the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. And a number of pieces of evidence, considered together, may justify the drawing of an inference as to causation when none of them, considered individually, could do so.”
The reference to the absence of hospital records for January 2010 was not developed on appeal and not referred to at all at the arbitration. Hundreds of pages of records were tendered from the Greater Western Area Health Service (Bourke District Hospital), but the absence of the relevant records for January 2010 has not been explained. That cannot be used as a ground of complaint on appeal. It neither advances the appellant’s case nor undermines Mr McNeill’s case.
The submission that there are “multiple reasons” why Mr McNeill might have fallen was, on its own, unhelpful and did not establish error by the Arbitrator. That submission might have had some force if there were any evidence of the “multiple reasons” referred to, but not identified, by Mr Perry. On the evidence tendered, the compelling inference is that Mr McNeill fell because of the condition of his right leg as a result of the 2003 injury.
I do not accept that the Arbitrator erred in concluding that Mr McNeill’s right knee was affected by instability beyond 2003. While that was not exactly what the Arbitrator found, I accept that it was a reasonable inference from his finding. He said that, for the reasons outlined at [53] of his decision, the injury to the right thigh “led to instability in [Mr McNeill’s] right knee”. The Arbitrator based that finding on the matters referred to at [53] and, for the reasons already explained, it was open on the evidence and disclosed no error.
If the Arbitrator erred in finding that the fall was because of the right knee giving way, and I do not accept that he did, the same conclusion is reached by an acceptance of Dr Burgess’s evidence that the fall was caused by weakness and dysfunction in the injured right thigh caused by the 2003 injury.
The lack of evidence of laxity in either the posterior or anterior cruciate ligament, was not decisive and was not a matter that required an express comment by the Arbitrator because it was never Mr McNeill’s case that he fell because of ligament laxity. The reference to there being a full range of movement of the knee and no effusion was not determinative and did not rule out a fall because of a lack of strength in the hip and knee, noting that Dr Bentivoglio, Dr Burgess and Dr Patrick all found weakness in both right hip flexion and right knee extension.
The third ground of appeal is that the Arbitrator erred in his application of Kooragang in ignoring evidence of a clear breach of the commonsense chain of causation, namely, the absence of injury to, or instability in the knee. I reject this ground of appeal.
Kooragang makes it clear that whether a condition has resulted from a relevant work injury is a question of fact. What is required is a commonsense evaluation of the causal chain and the mere passage of time between a work incident and subsequent incapacity is not determinative of the entitlement to compensation. The causative link may be broken because of an intervening act, or because of a “want of a sufficient connection” (Kooragang at 464).
However, as was emphasised (at 464) in Kooragang, a judge (or arbitrator) deciding the matter “will do well to return … to the statutory formula and to ask the question of whether the disputed incapacity or death [or condition] ‘resulted from’ the work injury which is impugned”. The answer to that question in the present case is clearly “yes”. There was no break of the chain of causation. Mr McNeill has consistently complained of difficulties with his right leg since the 2003 injury, which have been documented, and Dr Burgess strongly supports the connection between the fall and the 2003 injury. It was therefore open to the Arbitrator to find causation established.

CONCLUSION

I do not accept that the Arbitrator erred in his approach or conclusion. If he did err in his finding of knee instability, that error has not affected the outcome because the evidence is clear that the fall in January 2010 (and therefore the ankle injury) resulted from the accepted injury to the right thigh in 2003.

DECISION

The Arbitrator’s determination of 7 December 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
19 March 2013

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

ASSOCIATE