Tulczyn v Westrac Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tulczyn v Westrac Pty Ltd [2023] NSWPIC 533
APPLICANT:	Craig Tulczyn
RESPONDENT:	Westrac Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of accepted right knee injury; whether consequential conditions at lumbar spine and left knee as a result of the right knee injury; whether proper foundation for acceptance of expert opinion; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held – the applicant sustained consequential conditions at lumbar spine and left knee; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition at his lumbar spine as a result of the injury on 11 September 2017. 2. The applicant sustained a consequential condition as his left knee as a result of the injury on 11 September 2017. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 11 September 2017 Body parts: Right lower extremity (knee) Left lower extremity (knee) – consequential Lumbar spine – consequential Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Craig Tulczyn (the applicant) was in the course of his employment with Westrac Pty Limited (the respondent) when he sustained an injury to his right knee on 11 September 2017. Liability for the right knee injury was accepted by the respondent’s insurer.
On 22 December 2022, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied on an assessment by Dr James Bodel of 29% whole person impairment (WPI) of the right lower extremity (knee), left lower extremity (knee) and lumbar spine resulting from the injury on 11 September 2017.
On 9 May 2023, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability in respect of the left knee and lumbar spine as well as the degree of permanent impairment resulting from injury.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (the Commission) on 14 July 2023. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether applicant sustained a consequential left knee condition as a result of the injury to his right knee on 11 September 2017;
(b)    whether applicant sustained a consequential lumbar spine condition as a result of the injury to his right knee on 11 September 2017, and
(c)    the degree of permanent impairment resulting from injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 5 October 2023. The applicant was represented by Mr Allen Parker of counsel, instructed by Mr Lachlan McGregor. The respondent was represented by Mr Tom Grimes of counsel, instructed by Ms Jacklyn Dooley. A representative from the insurer, Ms Tan, was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents; and
(b) Reply and all attachments.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 13 July 2023.
The applicant described receiving various forms of treatment for his right knee injury including rest, analgesia and cortisone injections, which were unsuccessful.
On 1 November 2017, the applicant underwent an arthroscopy performed by orthopaedic surgeon, Dr Robert Sharp. Following that surgery, the applicant underwent physiotherapy to assist his recovery.
Dr Sharp performed a further two operative procedures on the right knee on 8 May 2018 and 28 May 2019. The applicant said the procedures did not provide much improvement to the right knee condition.
The applicant was subsequently referred to a different orthopaedic surgeon, Dr Jai Kumar, who performed a meniscal repair on 1 June 2020.
A total knee replacement surgery was performed by another orthopaedic surgeon, Dr Matthew Alfredson, on 14 October 2021. Dr Alfredson also performed a manipulation under anaesthetic on 5 May 2022.
The applicant said his recovery following the knee replacement and manipulation procedures had been good. The applicant was receiving physiotherapy and the condition at his right knee had improved.
Prior to the knee replacement surgery, the applicant said his right knee was in pain on a daily basis rated at around 6 to 7/10 on a good day and about 8/10 on most other days.
The applicant said,
“Following my work injury, I have also developed aches and pains in my left knee, hips and lower back. I believe this pain has come on because I have an uneven gait and I have been favouring my injured right knee and overusing my left side. I walk leaning to the left. I started to notice the pain in my left knee and hip in approximately March/April 2020. I had occasionally experienced the odd pain there towards the end of 2019, but it got worse in March/April 2020.”
The applicant described two previous injuries to his right knee but said that these had been documented in a pre-employment medical assessment undertaken when he commenced employment with the respondent.
The applicant said that he did not have any problems with his left knee or back prior to the injury in 2017.

Treating evidence

There is before the Commission a large body of treating evidence, including radiological investigations and specialist reports dealing with the right knee injury.
In a report to the applicant’s general practitioner, dated 22 September 2017, orthopaedic surgeon, Dr Robert Sharp noted that the applicant had previously injured his right knee but prior to the injury on 11 September 2017 the knee had been asymptomatic.
The applicant underwent a right knee arthroscopy on 1 November 2017, which identified two meniscal tears that Dr Sharp considered were responsible for most of the applicant’s symptoms.
Things progressed well until a manipulation from the applicant’s physiotherapist caused a ruptured ACL and a new tear of the lateral meniscus. A right ACL reconstruction was performed on 8 May 2018.
In a report dated 10 August 2018, Dr Sharp noted that the applicant had a dull ache in the medial side of the right knee most of the time and reported the knee giving way. The applicant was working with a physiotherapist.
Aching symptoms were again reported to Dr Sharp in September and October 2018. It was noted that the applicant had returned to employment, performing suitable duties. In a report dated 18 April 2019, Dr Sharp noted that the knee still ached by the end of the day. Nonetheless, the applicant was able to do nearly all of his pre-injury duties.
On 13 May 2019, the applicant reported an increase in symptoms after climbing up and down a vertical ladder at work. On examination, Dr Sharp found some medial sided swelling and tenderness to palpation laterally and medially.
A further MRI of the right knee was performed and, on 20 May 2019, Dr Sharp reported that there was now a large complex lateral meniscus tear. An arthroscopic meniscal repair was performed by Dr Sharp on 28 May 2019. At reviews following the surgery, Dr Sharp noted that he had increased the applicant’s Lyrica dosage.
The notes of an initial exercise physiology assessment performed at Vital Health Inverell on 17 January 2020 recorded the history of injury and treatment to the right knee. The notes also recorded:
“L knee – pain – compensating for R side. Hasn’t been doing any exercises for L side.
Current Client Concerns: Walking down stairs – lead with L side.
…Musculoskeletal px: LBP ongoing. L knee px. No hip px.”
The applicant was seen by a different orthopaedic surgeon, Dr Jai Kumar, on 11 February 2020. In a report of the same date, Dr Kumar noted that despite the applicant’s best efforts and the efforts of Dr Sharp, he had been unable to return to normal function. The applicant had daily pain, pain when driving and pain at night. Following a review of the relevant imaging and operation reports, Dr Kumar, sought approval for an arthroscopy to assess the cartilage surfaces, debride the cartilage surfaces, take synovial samples and assess the ACL reconstruction. The procedure was performed on 1 June 2020.
At a review on 30 July 2020, Dr Kumar noted that the applicant had some resolution of swelling and pain but overall was still struggling. Dr Kumar expressed the view that post-traumatic arthritis was the main problem.
A clinical note recorded by the applicant’s general practitioner on 25 August 2020 noted:
“L knee/hip/upper/lower back chronic pain – relates this to his R knee injury”
On 22 September 2020, the applicant’s general practitioner noted that the applicant was requesting referral to an orthopaedic surgeon or further imaging for lower back and left hip pain. A referral for a CT scan of the lumbar spine due to chronic left sided low back pain “??2@ to gait dysfunction with R knee injury” was prepared.
The applicant underwent the CT scan of the lumbar spine on 22 September 2020, the report of which noted bilateral sacroiliac joint degeneration, multilevel lower lumbar spondyloarthropathy, and high-grade foraminal narrowing at L5/S1, particularly on the left.
In a report dated 24 September 2020, Dr Kumar noted that the applicant continued to struggle with significant post-operative pain which was out of proportion to what would normally be expected. Dr Kumar noted that the applicant now complained of “collateral knee, hip and lower back” pain. Referral to a pain specialist was recommended.
A clinical note made by the applicant’s general practitioner on 29 October 2020 recorded:
“describes chronic hip/back pain which he attributes as 2@ to knee injury”
On 17 February 2021, Dr Kumar again noted that the applicant reported getting back pain as a consequence of his knee injury.
In report dated 19 February 2021, exercise physiologist, Rachael Williams, reported that the applicant had been attending exercise physiology at Vital Health for the past 11 months. Ms Williams stated:
“Since May/June 2020 Craig reported a significant increase in R knee pain. During this time his mobility and gait has been significantly altered to compensate for pain and he has reported an increase in lower back, bilateral hip, right knee and L foot/ankle pain.”
The applicant was seen by a third orthopaedic surgeon, Dr Matthew Alfredson, on 10 May 2021. In a report of the same date, Dr Alfredson noted:
“Craig experiences pain in his right knee. More recently in the last few months his left knee has begun to hurt. Additional areas of pain include the lateral aspect of his left hip and lower back that occasionally radiates into the legs.”
On examination, Dr Alfredson noted that the applicant had normal lower limb alignment but held his right leg in a flexed posture of approximately five degrees. Dr Alfredson noted that the applicant had a “markedly antalgic gait with a slow cadence” and no thrust.
Dr Alfredson performed a right total knee replacement on 14 October 2021.
At review on 29 October 2021, Dr Alfredson noted that the applicant was recovering exceptionally well and had achieved a reasonable range of motion.
On 17 December 2021, Dr Alfredson noted that the applicant was very happy with his current level of function and had minimal discomfort. Range of motion was, however, reduced and Dr Alfredson recommended more aggressive physiotherapy.
On 28 March 2022, Dr Alfredson recommended a manipulation under anaesthetic to improve the applicant’s range of motion but noted that the applicant was relatively pain-free.
A manipulation under anaesthetic of the right knee joint was performed on 5 May 2022.

Dr Bodel

The applicant relies on a medico-legal report prepared by orthopaedic surgeon, Dr James Bodel, dated 26 September 2022.
Dr Bodel took a history of the right knee injury that was broadly consistent with the applicant’s statement evidence. Dr Bodel noted that none of the conservative surgical procedures to the right knee had been of any great benefit. The applicant underwent extensive post-operative physiotherapy after each procedure but this had not helped. The applicant eventually underwent a total knee replacement, which had reduced the applicant’s pain and “helped immensely”.
Dr Bodel recorded that in early March 2020, the applicant developed increasing lower back and left knee pain which came on gradually. The applicant underwent some scans of the lumbar spine but had no specific treatment apart from physiotherapy.
The applicant complained of pain in the lower part of the back and pain in the left knee, aggravated by attempting to kneel, squat or climb.
On examination, Dr Bodel noted that the applicant walked without a limp but rose from a chair with some difficulty due to pain in the left knee. There was retropatellar crepitus and restricted range of movement at the left knee. There was tenderness and guarding at the lumbosacral junction and a restricted range of back movement.
Dr Bodel diagnosed consequential injuries involving the lower part of the back, both hips and the left knee, commenting:
“Because of the long, protracted problem with the right knee, he began to favour the left side, and developed increasing symptoms in the left knee, which are still tolerable, but worsening over time. He has also developed back and hip pain, and he has early arthritic change in both areas.”
In response to a question asking whether the nature and conditions of the applicant’s employment had been a substantial or the main contributing factor to an aggravation of a degenerative condition or disease process, Dr Bodel responded:
“He also had a well-established disease process in both knees and lower back and hips, and the nature and condition of his work, particularly after the injury to the right knee, has caused an aggravation, acceleration, exacerbation and deterioration of the disease process in accordance with the Workers’ Compensation Act.”

Dr Powell

The respondent relies on a medico-legal report prepared by orthopaedic surgeon, Dr Richard Powell, dated 27 March 2023.
Dr Powell took a history of the injury to the right knee on 11 September 2017 and the series of surgical procedures on the right knee which followed. Dr Powell noted that the applicant also complained of symptoms involving the lower back and the contralateral left knee, which had developed “in an insidious fashion without any further specific precipitating incident”.
The applicant reported symptoms developing in the lower back around 2019. The applicant was reviewed by his local doctor and referred for a CT scan. Conservative management was recommended.
Left knee symptoms developed in late 2020 following the total knee replacement surgery, without any specific precipitating incident. The applicant did not recall undergoing any investigations and there had been no specialist review or treatment.
On examination, Dr Powell found no focal tenderness to palpation of the posterior bony elements of the lumbosacral spine and no paraspinal muscle tenderness or spasm. Range of motion was restricted.
Examination of the left knee revealed the patella to be located and tracking centrally. There was no effusion and no extensor lag. There was some tenderness to palpation over the medial joint line and the medial tibial plateau.
Dr Powell commented,
“The symptoms and functional limitations relating to the lower back, pelvis, hips, and left knee are pre-existing, developmental and degenerative in nature and are not related to his employment.”
Dr Powell responded in the negative to a series of questions around whether the applicant had sustained an “injury” to the lumbar spine or left knee.
Asked whether, in the alternative, the applicant’s lumbar spine symptoms were consequential and causally related to the right knee injury on 11 September 2017, Dr Powell responded:
“The symptoms involving the lower back are entirely consistent with the natural history of the underlying developmental and degenerative disease processes. There is no evidence that he has suffered any consequential injury to the lower back that is causally related to his right knee condition sustained on 11/09/17. Any alteration in the gate would not involve biomechanical forces sufficient to have caused any significant structural pathology in the lumbar spine. The development of symptoms in the lower back does not constitute injury and the symptoms need to be interpreted in the context of the widespread degenerative disease processes which in Mr Tulczyn’s case do not only involve the lower back, but also the sacroiliac joints, bilateral hips and contralateral knee. These point to a primary generalised osteoarthritic process, which is clearly not the result of a twisting injury of the right knee in September 2017.”
Similarly, in respect of the left knee, Dr Powell commented,
“As I have indicated previously any alteration in biomechanics relating to the disrupted gait pattern are insufficient to cause structural pathology in an otherwise normal knee, hip or lower back.
…
His left knee symptoms most likely reflect some underlying degenerative pathology.”

Applicant’s submissions

The applicant submitted that the dispute in these proceedings arose essentially due to a difference of opinion between Dr Bodel and Dr Powell. The applicant noted that the respondent had indicated at the preliminary conference that a further report would be obtained from Dr Powell but none had been tendered.
The applicant submitted that Dr Bodel took an uncontroversial history, noting that the disputed body parts were asymptomatic prior to the 2017 injury. The applicant noted Dr Bodel’s opinion that the protracted problem with the right knee had caused the applicant to favour the left side and develop symptoms in the left knee and back. Dr Bodel diagnosed consequential conditions involving both the lower back and left knee.
The applicant submitted that Dr Bodel’s opinion was consistent with the applicant’s evidence regarding a change in gait. The delayed development of symptoms was consistent with an alteration of gait following the right knee surgeries.
The applicant noted that Dr Powell did not take a history of altered gait and submitted that the history upon which his opinion was founded was therefore incomplete. Dr Powell’s comment that the “symptoms and limitations” in the lower back and knee were “pre-existing” was inconsistent with the other evidence. There may have been underlying conditions but there was no evidence to support the view that symptoms and limitations were present prior to the 2017 injury. The applicant submitted that Dr Powell’s report was of no evidentiary value.
The applicant submitted that Dr Powell’s report focused on the question of whether there was an injury but what was alleged in the Application to Resolve a Dispute was a consequential condition to the disputed body parts. Dr Powell’s reliance on the delayed onset of symptoms and his references to the main contributing factor test were misplaced. Dr Powell appeared to accept that the left knee and lumbar spine were not normal but attributed this to underlying degenerative pathology. The applicant submitted that the Commission would not accept Dr Powell’s report as relevant and would prefer Dr Bodel’s opinion.

Respondent’s submissions

The respondent observed that the applicant had described consequential conditions due to altered gait and leaning to the left in the Application to Resolve a Dispute.
Noting that the applicant’s submissions were confined to the medico-legal evidence, the respondent submitted that the findings on examination made by Dr Bodel did not support the presence of an altered gait. It was noted that the applicant walked without a limp and there was no evidence of leaning to the left. Although Dr Bodel said there was difficulty squatting, this was not what the applicant relied on to establish a consequential condition.
The respondent submitted that Dr Bodel’s opinion that there were consequential conditions at the lumbar spine and left knee flew in the face of his own clinical examination.
Although Dr Bodel referred to altered gait in explaining a causal relationship between the right knee injury and the left knee condition, no explanation of the causal relationship between the right knee injury and the lower back symptoms was provided. Dr Bodel simply said there were early arthritic changes present. No reference was made to the mechanism or the treating evidence and Dr Bodel’s opinion on causation was inconsistent with his own findings on examination.
The respondent noted that Dr Powell also took no history of altered gait and made no findings of altered gait or leaning to the left on examination. Dr Powell’s report addressed whether there was an “injury” for the sake of completeness, however, the Commission was only required to consider his findings on the claimed consequential conditions.
Dr Powell traversed the question of whether there were consequential conditions and gave an opinion consistent with the history and findings on examination.
The respondent noted that no other doctor had provided an opinion on causation. In the circumstances, the Commission would prefer the opinion of Dr Powell.

Further submissions

Noting that the parties had confined their submissions to the medico-legal evidence, the Commission invited the parties to comment further on a number of references to left knee and lumbar spine symptoms in the treating evidence. The applicant indicated that he relied on the treating evidence and submitted that it was consistent with Dr Bodel’s opinion.
The respondent identified a number of treating reports in which there was no reference to a history of leaning to the left or altered gait.
The respondent submitted that neither Dr Powell nor Dr Bodel found any evidence of altered gait at the time of their reports. None of the treating doctors had provided a comprehensive opinion on causation.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 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.”
It is accepted that the applicant sustained an injury for the purposes of s 4 of the 1987 Act to his right knee on 11 September 2017. What is in dispute in these proceedings is whether the applicant has sustained consequential conditions at his lumbar spine and left knee as a result of the injury to his right knee.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[1] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[2] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[3] Snell DP referred to the decisions in Moon v Conmah[4] and Kumar v Royal Comfort Bedding[5] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[3] [2016] NSWWCCPD 23.
[4] [2009] NSWWCCPD 134.
[5] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[6] where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[6] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained consequential conditions affecting his lumbar spine and left knee. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[7] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[7] [2008] NSWCA 246.
The applicant relies predominantly on the medicolegal opinion of Dr Bodel in support of his claim to have sustained consequential conditions affecting his lumbar spine and left knee due to an alteration in his posture and gait as a result of his right knee injury.
The history recorded by Dr Bodel with regard to the right knee injury and its subsequent treatment is uncontroversial. It is apparent that following the injury on 11 September 2017 the applicant came to multiple surgeries over the course of the next four years. Despite these surgical interventions, physiotherapy and exercise physiology, the applicant continued to experience a significant degree of pain and disability in the right knee until he came to a total knee replacement, performed by Dr Alfredson 14 October 2021.
Dr Bodel recorded that the knee replacement surgery had reduced the applicant’s pain and helped immensely. That account is consistent with what was recorded in Dr Alfredson’s treating reports. It also explains the relatively findings on examination recorded by both Dr Bodel and Dr Powell in late 2022 and early 2023, in particular, the absence of evidence of altered gait or limp at that time.
The respondent submitted that Dr Bodel’s opinion that the applicant had sustained consequential conditions at the left knee and lower back was unreliable, in part, because it was inconsistent with Dr Bodel’s findings on examination.
That submission ignored the body of treating evidence before the Commission relating the condition of the right knee before the knee replacement surgery. Although the applicant’s submissions did not initially refer the Commission to that evidence, and it is not specifically identified in Dr Bodel’s report, I considered that the treating material was relevant to the Commission’s determination and invited the parties to comment upon it at arbitration.
Consistently with the history provided to Dr Bodel, the treating evidence includes references to left knee and lower back pain and compensating for the right sided symptoms in the exercise physiology notes from January 2020.
In August 2020, the general practitioner’s notes referred to left knee and lower back pain which the applicant related to his right knee injury. The general practitioner’s records around the time of referral for a CT scan of the lumbar spine in September 2020 suggested that the applicant’s lower back pain may be secondary to gait dysfunction resulting from the right knee injury.
“Collateral” left knee and lower back pain was noted by Dr Kumar in September 2020 and again in February 2021.
The parties were referred, in particular, to a report from the applicant’s exercise physiologist, Ms Williams, dated 19 February 2021, which described the applicant’s mobility and gait being “significantly altered” to compensate for the pain in the applicant’s right knee. In this context, the applicant had also reported an increase in lower back pain.
Symptoms in the left knee and lower back were also described to Dr Alfredson who also noted a “markedly antalgic gait” at the time of his initial assessment of the applicant in May 2021.
The applicant indicated at the arbitration hearing that he relied upon the treating evidence on the basis that was consistent with the views of Dr Bodel. Although, as noted by the respondent, there are numerous treating reports which do not identify symptoms or restrictions in the disputed body parts or refer to altered gait or posture, I am satisfied on the evidence identified above that the history of a gradual onset of pain in the left knee and back and favouring the left side to compensate for the protracted problem in the right knee recorded by Dr Bodel is in fact consistent with the treating evidence.
The fact that there was no evidence of altered gait or favouring the left side at the time of Dr Bodel’s (or Dr Powell’s) examination is not determinative and is in fact consistent with the evidence of a significant improvement in the applicant’s right knee symptoms following the surgeries performed by Dr Alfredson.
The respondent correctly submits that Dr Bodel is the only doctor who has provided an opinion on causation of the left knee and lower back symptoms which favours the applicant’s case. Dr Bodel’s opinion on causation was criticised by the respondent for its lack of proper explanation of the mechanism by which the right knee injury had resulted in the alleged consequential conditions, particularly in relation to the lumbar spine.
Whilst I accept that the language used in Dr Bodel’s report does not expressly articulate the causal relationship between the back pain and the right knee injury, reading the report as a whole, I am satisfied that it is tolerably clear that Dr Bodel considered that the favouring of the left side had caused both the increasing symptoms in the left knee as well as those in the lower back.
Consistently with the views expressed by Dr Powell, Dr Bodel acknowledged that there were well-established disease processes in both knees and the lower back. Both experts appear to agree that the pathology at the left knee and lumbar spine was pre-existing and had not itself resulted from the right knee injury. Dr Bodel found, however, that the applicant developed new or increasing symptoms at both sites as a result of the right knee injury.
In contrast, Dr Powell commented that the “symptoms and functional limitations” at the applicant’s left knee and lumbar spine were pre-existing. There is, however, no evidence of prior symptoms at either site in the histories recorded by the experts, in the applicant’s evidence or in the treating evidence before the Commission.
Although, I accept that Dr Powell did consider whether there were consequential conditions at these sites, I am not satisfied that in doing so he asked the correct question. Dr Powell appears to have been erroneously occupied with the cause of the structural pathology at the left knee and lumbar spine. It is clear from the authorities referred to above, the applicant need not establish that any pathology at the left knee or lumbar spine resulted from altered gait due to his right knee injury. It is sufficient that symptoms resulted from the right knee injury. The applicant is not required to demonstrate an “injury” at these body parts.
For these reasons, I do not accept that Dr Powell’s report identifies any basis on which the opinion of Dr Bodel ought to be rejected.
Dr Bodel’s articulation of the causal relationship is not perfect but it does not have to be. As Spigelman CJ explained in Australian Security and Investments Commission v Rich:[8]
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”
[8] [2005] NSWCA 152 at [170].
I am satisfied that Dr Bodel has sufficiently identified the facts and reasoning process which justified his opinion. The factual history relied on by Dr Bodel was consistent with the contemporaneous treating material before the Commission and provided a sound basis for that opinion.
In all the circumstances, I am satisfied on the balance of probabilities that conditions at both the applicant’s lumbar spine and left knee resulted from the right knee injury.
It will be a matter for a Medical Assessor to determine the degree of permanent impairment resulting from the injury. The matter will be remitted to the President for referral to a Medical Assessor for that purpose.

[2023] NSWPIC 533

9 October 2023