Westpac Banking Corporation v Taumoepeau - [2025] NSWPICPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Westpac Banking Corporation v Taumoepeau [2025] NSWPICPD 35
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Josephine Taumoepeau
INSURER:	Westpac Banking Corporation
FILE NUMBER:	A1-W1910/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	23 April 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987 – claim for the cost of surgery; threshold requirements not satisfied; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; dismissal of proceedings; failure to identify error on part of the Member; monetary limit to a direction by President under s 297(2) of the 1998 Act not relevant to the appeal
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Ainsworth, solicitor
Hall & Wilcox Lawyers
Respondent:
Mr J Lemoto, solicitor
PK Simpson & Co
DECISION UNDER APPEAL:	Taumoepeau v Westpac Banking Corporation [2024] NSWPIC 322
MEMBER:	Ms F Seaton
DATE OF MEMBER’S DECISION:	19 June 2024

INTRODUCTION

The appeal is from an Amended Certificate of Determination dated 19 June 2024.
The Commission determined:
“1. The [respondent] sustained an injury to her left knee in the course of her employment with the [appellant] on 26 April 2023.
2. The left knee arthroscopic surgery proposed by Dr Bijoy Thomas is reasonably necessary medical treatment as a result of the [respondent’s] injury on 26 April 2023 within the meaning of s 60 of the Workers Compensation Act 1987 [the 1987 Act].
The Commission orders:
3. The [appellant] is to pay the future medical hospital and related expenses of the left knee arthroscopic surgery proposed by Dr Bijoy Thomas in accordance with his request dated 13 September 2023 at the gazetted rates.”
The appellant seeks to have the Amended Certificate of Determination set aside and to have substituted the following findings:
(a) that the respondent did not suffer an injury within the meaning of ss 4 and 9A of the 1987 Act; and/or
(b) that the proposed surgery is ‘not reasonably necessary’ for the purpose of s 60 of the 1987 Act.
For the reasons that follow, the appeal is dismissed and the Member’s Amended Certificate of Determination confirmed.

BACKGROUND FACTS AND MEMBER’S STATEMENT OF REASONS

The facts are not substantially in issue. The following summary is taken from the Member’s Statement of Reasons.[1]
[1] Taumoepeau v Westpac Banking Corporation [2024] NSWPIC 322 (reasons).
The respondent is a business lending officer employed by the appellant since 1997. On 26 April 2023 there was a fire drill at her office which required her to walk down stairs from level 33. When she reached about level 20 she felt a click in her left knee and had difficulty moving it. She reported the injury to the fire warden who asked that she continue to walk down to level 12 where she was able to take a lift to the ground level.
The appellant issued notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 September 2023 and 20 February 2024 disputing that the respondent had sustained an injury to her left knee and denying liability for weekly payments of compensation and medical expenses as a result of such injury.
In the Application to Resolve Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 8 March 2024, the respondent claimed future medical expenses for arthroscopy to the left knee recommended by Dr B Thomas.
The parties agreed that the issues for determination were:
(a) whether the respondent sustained an injury to her left knee on 26 April 2023 pursuant to s 4 of the 1987 Act, and
(b) whether the left knee arthroscopic surgery proposed by Dr Thomas is reasonably necessary as a result of injury on 26 April 2023 pursuant to s 60 of the 1987 Act.
There was no oral evidence. The documentary evidence comprised the ARD and the documents attached; the respondent’s Reply and attached documents and the respondent’s Application to Admit Late Documents (AALD) dated 24 May 2024, the contents of which were admitted by consent.
The Member summarised the respondent’s evidence, she said:
“13.   On 23 April 2023 [sic] while walking down stairs during a fire drill she injured her left knee. She felt a click in her left knee and had difficulty moving it. She was having a very hard time walking down the steps.
14.    She reported her injury, she was unable to return to her office and she then lodged a claim form for her left knee injury. The claim was accepted and she received weekly compensation payments from the date of injury for about two months.
15.    She consulted Dr Shrestha and Dr Titus Thomas, general practitioners, and she was referred to Dr Bijoy Thomas, orthopaedic surgeon, who recommends she have left knee surgery.”
The clinical records revealed prior left knee pain on 1 December 2022. A left knee ultrasound of 17 June 2023 noted a ganglion cyst. An MRI of the left knee was carried out on 26 July 2023 which the Member said showed:
“1. Medial compartment OA with torn medial meniscus and small parameniscal cyst and reactive bone oedema and partial tearing of the MCL.
2. PF OA.”[2]
[2] Reasons, [21].
The Member referred to Dr Bijoy Thomas’s report to Dr Shrestha dated 13 September 2023:
“Dr Bijoy Thomas, treating specialist, in his report to Dr Shrestha of 13 September 2023 refers to a meniscal tear along with some degenerative changes, saying that conservative management since the injury in April including a cortisone injection has failed to alleviate symptoms, and that the [respondent] was ‘getting frequent mechanical symptoms like painful clicking and locking of the knee’. He reports the [respondent] would benefit from an arthroscopy to deal with the mechanical symptoms.”[3]
[3] Reasons, [22].
Dr Thomas requested approval for the respondent to undergo the surgery.
Dr Bodel, an orthopaedic surgeon qualified by the worker, said on 4 December 2023:
“The injury to the left knee was caused by the descending of the set of stairs. The pathology which includes the degenerative change is not caused by that specific event, but the event has caused some aggravation, acceleration, exacerbation and deterioration. There does appear however to have been a frank injury involving the medial meniscus’.”[4]
[4] Reasons, [24], ARD, p 20.
Dr Bodel supported the proposed surgery as “reasonably necessary” for the management of the injury that was caused by the accident. The Member noted that Dr Bodel suspected that while the surgery may improve function. Dr Bodel believed a total knee replacement was inevitable and likely within the next five to seven years.[5]
[5] Reasons, [25].
The appellant relied upon reports from Associate Professor Miniter, an orthopaedic surgeon.
In the first report dated 29 August 2023 the doctor described the osteoarthritic change, diagnosed degenerative changes in the medial compartment affecting the left knee for which employment was not the main or substantial contributing factor. A/Prof Miniter said, “I do not believe there is any place for surgical treatment at this stage.” A/Prof Miniter said that the matter would continue until joint replacement had been completed successfully.[6]
[6] Reasons, [26]–[27].
In his supplementary report of 29 September 2024, A/Prof Miniter commented upon the surveillance report and footage. He said that that the material did not cause him to change his opinion. The respondent has a genuine issue though it is not work related. A/Prof Miniter confirmed his previous opinion that the respondent had issues with medial compartment arthritic change.
The Member noted that the documentation included the ultrasound of the left knee dated 17June 2023 and the MRI of 26 July 2023. There were surveillance reports from Procare dated 10 November 2023 and correspondence with respect to conduct issues which the Member did not regard as relevant to the issues in dispute in the proceedings.[7]
[7] Reasons, [30].
The AALD included a supplementary report from A/Prof Miniter dated 17 April 2024, together with updated clinical records from Our Medical Home Marsden Park to March 2024, which describe ongoing treatment to the left knee.
In the supplementary report, A/Prof Miniter commented on Dr Bodel’s report of 4 December 2023. The Member quoted from A/Prof Miniter’s report as follows:
“There is no evidence of a frank injury. The meniscal tear is clearly longstanding and is not the result of descending stairs during a fire drill on 26/4/2023. You will note I have previously provided my methodology in relation to this matter, and I fail to understand the need to change my opinion.”[8]
[8] Reasons, [32].
A/Prof Miniter said there was a meniscal tear but that it was not an acute lesion. He thought it was part and parcel of the respondent’s severe osteoarthritic disease. The doctor confirmed his opinion that arthroscopic treatment was not appropriate management and that in his opinion the respondent was a poor candidate for any type of surgical treatment.
After summarising the submissions of the parties at length and in detail, the Member under the heading “Findings and Reasons” expressed her conclusions.
She said:
“101. The weight of evidence supports the conclusion that the [respondent] experienced a sudden identifiable pathological change being a medial meniscus tear of her left knee while descending stairs during the fire drill on 26 April 2023.
102. The [respondent] describes a click in her knee and difficulty moving it while descending stairs on that date. Her general practitioner records on 8 May 2023 that she had pain at her left knee for a week after a fire drill with a painful range of motion.”
The Member supported her conclusion by the following matters:
(a)    the symptoms appeared severe;[9]
(b)    the Certificates of Capacity attributed the lack of capacity to left knee injury when using stairs during a fire drill on 26 April 2023;
(c)    the reports of Dr Bijoy Thomas, the treating specialist;[10]
(d)    Dr Bodel’s report dated 4 December 2023 says that the investigations show a tear of the medial meniscus of the left knee and some early degenerative change in the medial compartment. Dr Bodel said “[t]here does appear however to have been a frank injury involving the medial meniscus”;[11]
(e)    A/Prof Miniter in his supplementary report of 17 April 2024 accepts that the MRI shows a tear of the meniscus. However the doctor disputes that a frank injury occurred on 26 April 2023,[12] and
(f)    the respondent in her statement says that she did not suffer any prior injury to the left knee or hip and Dr Bodel says that she was previously quite well and had no problem with her knees.[13]
[9] Reasons, [103].
[10] Reasons, [105]–[106].
[11] Reasons, [107].
[12] Reasons, [110].
[13] Reasons, [111].
The Member deals with two arguments advanced by the appellant.
Firstly, the appellant says that Dr Bodel did not view the actual films and scans, however the doctor refers to the ultrasound dated 18 June 2023 and an MRI scan report of 26 July 2023 as part of the documentation provided to him. The Member said:
“It is not clear whether viewing the ultrasound and MRI film would have altered Dr Bodel’s opinion that the [respondent] tore her left medial meniscus on 26 April 2023”.[14]
[14] Reasons, [109].
Secondly, the appellant points out that the statement by Dr Bodel that the respondent did not suffer any prior injury to the left knee or hip appears to be “at odds” with the general practitioner’s records of 1 December 2022.
The Member considered the GP’s notes.
The Member says that Dr Thomas in his report of 13 September 2023 describes “frequent mechanical symptoms like painful clicking and locking of the knee, symptoms not recorded on 1 December 2022.”[15] She said:
“117. While the [respondent’s] problem with her left knee recorded as osteoarthritis on 1 December 2022 is inconsistent with the past medical history noted by the doctor that she has had no problems with her knees, the doctor goes on to find that an injury occurred on 26 April 2023 in addition to the osteoarthritis condition. It is not apparent that this inconsistency impacts the doctor’s conclusion that an injury occurred on the 26th of April 2023. [The doctor in this passage is referring to Dr Bodel.]
118. Any inconsistency between the clinical notes taken on 1 December 2022 and the [respondent] stating she had no prior injury to the left knee does not in any event preclude her proving she sustained a left knee injury on 26 April 2023.”
[15] Reasons, [114].
The Member noted that the clinical records from 26 November 2021 make “no other reference” to left knee symptoms prior to 26 April 2023.
The medical evidence of Drs Thomas, Bodel and A/Prof Miniter confirmed that the respondent had a pre-existing osteoarthritic condition of her left knee. The Member observed that injury on 26 April 2023 and osteoarthritis of the left knee were not mutually exclusive. She said:
“The fact that the injury may be connected to the [respondent’s] underlying disease process does not prevent the conclusion that an injury occurred on 26 April 2023”.[16]
[16] Reasons, [120], citing North Coast Area Health Service v Felstead [2011] NSWWCCPD 51, [77].
The Member said the histories of injury provided by the respondent in her statement, to her general practitioner, and to Drs Thomas, Bodel and A/Prof Miniter were “broadly consistent; while descending stairs during the fire drill she felt a click and then pain in her left knee.”[17]
[17] Reasons, [124].
Dr Bodel’s history that the respondent suffered a “twisting injury to the left knee while walking down the stairs” was the only reference to the injury being a twisting injury, but “this assumed fact does not however negate the conclusion that a frank injury occurred on that date [26 April 2023].” She says:
“The fact that an injury occurred is supported by the [respondent’s] evidence, the contemporaneous clinical record and Dr Thomas, the [respondent’s] treating specialist.”[18]
[18] Reasons, [127].
The Member says of the evidence of A/Prof Miniter:
“132. I understand that methodology to be set out in the doctor’s report of 29 August 2023. In that report the doctor comments that the standing X-rays and the MRI scan at Western Imaging Group demonstrate advanced medial compartment osteoarthritic change with no features of acute injury.
133. The doctor says there were no signs of acute meniscal pathology on examination and he comments that the available evidence ‘would suggest that Mrs Taumoepeau has constitutional degenerative changes of the knee subsequent upon her weight and age’.
134. This opinion is difficult to reconcile with the findings of the ultrasound and particularly the left knee MRI of 26 July 2023 which reported on medial compartment osteoarthritis with torn meniscus, small parameniscal cyst, reactive bony oedema and partial tearing to the MCL. The doctor does not refer to the medial meniscus tear until his supplementary report of 17 April 2024.”
In that report he refers to the meniscal tear but says that he thinks it is “clearly longstanding and is not the result of descending the stairs on the 26 April 2023.”[19]
[19] Reasons, [135].
The Member says of that opinion:
“136. There is no evidence however to support the opinion that the meniscal tear shown on the MRI on 26th July 2023 is longstanding and part and parcel of the osteoarthritic condition.
…
139. A/Prof Miniter’s reasoning in forming the opinion that the meniscal tear is longstanding and part and parcel of the osteoarthritic condition is not fully explained. It is also inconsistent with the evidence of the severity of the [respondent’s] symptoms and the ongoing treatment she is receiving following the incident on 26 April 2023.
140. I prefer the opinions expressed by Drs Thomas and Dr Bodel to that of A/Prof Miniter as in my view the basis of the opinion that the medial meniscus tear is longstanding and is part and parcel of her constitutional degenerative changes is not supported by the balance of the evidence.
141. Whilst acknowledging the issues discussed above, the weight of evidence is that a physiological change took place on 26 April 2023 and the nature and severity of the symptoms that followed lend support to that conclusion.
142. On the basis of a commonsense evaluation of the causal chain, I am persuaded on the balance of probabilities that the [respondent] sustained a left knee injury on 26 April 2023.”
The Member then went on to consider whether the respondent had shown that the employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. She noted the factors referred to in s 9A(2), making reference to the decision of Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited.[20] She concluded:
“145. The injury occurred while the [respondent] was at work on 26 April 2023. There is no evidence that the injury would have happened anyway if the [respondent] had not been at work. Although she had complained of left knee pain in December 2022 she had returned to work after two days and continued to work for five or six months without further consultations with her general practitioner or treatment until the date of incident.
146. Dr Bodel’s opinion is that the events that [led] to the injury on 26 April 2023 are a substantial contributing factor to the left knee injury.
147. A/Prof Miniter’s opinion is that the [respondent’s] employment was not the main or substantial contributing factor to her current presentation, being the degenerative change affecting her left knee.
148. Having found that the [respondent] did sustain a left knee injury on 26 April 2023, the evidence supports the conclusion that the [respondent’s] employment with the [appellant] was a substantial contributing factor to the left knee injury.”
[20] [2009] NSWCA 324, [80]–[82].
The Member goes on to consider whether the proposed left knee surgery was reasonably necessary as a result of the injury of 26 April 2023.
Relying upon the decision in Murphy v Allity Management Services Pty Limited,[21] the Member said that the test was whether the injury materially contributed to the need for surgery. Dr Thomas proposed surgery to deal with the respondent’s mechanical symptoms like painful clicking and locking of the knee.
[21] [2015] NSWWCCPD 49, [58].
The Member said:
“Having found the [respondent] sustained a left knee injury on 26 April 2023, I find on the basis of the evidence that the injury has materially contributed to the need for the arthroscopic surgery.”[22]
[22] Reasons, [156].
Next she considered “whether the proposed treatment is ‘reasonably necessary’”. After discussing the opinions of Drs Bodel and Thomas and noting that A/Prof Miniter strongly opposed the proposed surgery, the Member preferred the opinion of Dr Thomas as the treating specialist who has reviewed the respondent’s condition on several occasions and whose opinion was supported by Dr Bodel.[23]
[23] Reasons, [168].
A/Prof Miniter referred to alternative treatment available to the respondent. The Member discounted that opinion in the following terms:
“170. It is now over a year since the injury occurred. The [respondent] has had conservative treatment including pain medication, anti-inflammatory medication, physiotherapy, she has worn tape and a brace on her knee and she has had a cortisone injection that Dr Thomas found failed to alleviate her symptoms. Surgery is now recommended by her treating specialist.
171. The [appellant] concedes the cost of the proposed surgery is not prohibitive.
172. On the question of whether the proposed surgery is accepted by the medical profession, Dr Thomas and Dr Bodel are of the opinion that it is reasonably necessary and A/Prof Miniter expresses a strong contrary view.
173. It is her treating specialist Dr Thomas who has reviewed and investigated the [respondent’s] left knee injury and who proposes the arthroscopic surgery.”

The Member concludes:
“Taking into account all of the evidence and having considered the criteria in Rose and Diab I find that the surgery proposed by Dr Thomas is reasonably necessary medical treatment for the [respondent’s] left knee injury of 26 April 2023 pursuant to s 60 of the 1987 Act.”[24]
[24] Reasons, [176], citing Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32; Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab).
In light of those findings, the Member expressed conclusions consistent with the Certificate of Determination.

GROUNDS OF APPEAL

The appellant seeks to agitate three grounds of appeal, namely:
(a)    The Member made an error of fact or discretion by taking into account some irrelevant matter and failing to give sufficient weight to some relevant matter when accepting that the meniscal tear was acute or sudden rather than degenerative pathology (Ground 1).
(b)    The Member made an error of law and discretion by failing to give adequate reasons and proper consideration to the evidence in determining that the surgery was reasonably necessary (Ground 2).
(c)    The Member made an error of law in the manner in which she placed the onus of proof (Ground 3).

PROCEDURAL ISSUES

Time

The Amended Certificate of Determination was issued on 19 June 2024. The appeal was registered on 18 July 2024. The appeal was filed within time.

Monetary threshold

Section 352(3) provides there is no appeal under this section (i.e., s 352(1)) unless the amount of compensation at issue on the appeal is both:
“(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
Order 3 in the Amended Certificate of Determination, is:
“3. The [appellant] is to pay the future medical hospital and related expenses of the left knee arthroscopic surgery proposed by Dr Bijoy Thomas in accordance with his request dated 13 September 2023 at the gazetted rates.”
The request from Dr Thomas dated 13 September 2023 includes a quote for $3,855.[25]
[25] ARD, p 26.
I issued a Direction asking the parties to identify the evidence to establish that the monetary threshold contemplated by s 352(3) is satisfied. As this goes to the right of appeal granted by s 352, the parties cannot confer jurisdiction by consent. Accordingly, a statement by each party that the monetary threshold imposed by s 352(3)(a) of the 1998 Act is satisfied is insufficient.
Pursuant to the Direction, the appellant provided written submissions dated 8 April 2025 in support of the submission that s 352(3) was satisfied.
In summary, the appellant’s submissions were as follows:
(a) section 297(2) of the 1998 Act provides for the President to make an interim payment direction but only if the amount is less than $10,450.50. The appellant submits that in so far as the respondent filed an ARD, the claim for medical expenses must be greater than $10,450.50;
(b) the quote from Dr Thomas dated 13 September 2023, in total $3,855, is not the totality of the cost of the proposed surgery. The appellant submits that there will be a liability to pay ancillary costs of the surgery including, but not limited to, hospital fees, anaesthetist fees, post-surgery rehabilitation, and likely costs of post-surgery physiotherapy, post-surgical review by the surgeon and general practitioner. The appellant refers to Dr Bodel’s report which indicates that there will be “follow up treatment”. The appellant submits that it is clear that the costs will not be limited to the sum of $3,855 per the invoice of Dr Thomas dated 13 September 2023;
(c) the worker claimed in the ARD an amount of $5,355. The appellant says that it is unclear as to where this figure originates but that it is clear that the claim by the worker exceeds $5,000 as required by s 352(3)(a) of the 1998 Act, and
(d) section 352(3)(b) of the 1998 Act requires that the amount of compensation at issue in the appeal is at least 20% of the amount awarded in a decision appealed against. As the objection is to the entire amount of the worker’s claim for surgery expenses, s 352(3)(b) of the 1998 Act is satisfied.
The respondent filed a submission dated 15 April 2025 in which it affirmed its previous submission that s 352(3) of the 1998 Act was satisfied.
For the reasons that follow, in my view s 352(3)(a) is not satisfied in the circumstances of this appeal.
First, s 352(3) is pre-emptive; there is “no appeal” “unless the amount of compensation at issue” is both “at least $5,000” and “at least 20% of the amount awarded in the decision appealed against”.
Whilst the appellant may be correct as to ancillary and follow up costs, the fact is there is no evidence as to how much those costs would involve. To conclude that the total necessarily exceeds $5,000 is just speculation. The material available does not establish that the amount of compensation at issue is at least $5,000.
Secondly, the order made by the Member was that the proposed surgery be paid in accordance with Dr Thomas’ request dated 13 September 2023 at “the gazetted rates”. There is no evidence as to what difference, if any, the qualification “gazetted rates” might mean to the quoted sum of $3,855. Accordingly, the only evidence as to the cost of proposed surgery is that contained in the 13 September quote.
Thirdly, s 297(2) provides that the President may make a direction but that is not the case in this matter. The fact that the President could have made a direction on an interim basis is not relevant to the appeal, which deals with the order made by the Member after a full hearing.
Fourthly, the fact that the respondent chose to claim a specific amount of $5,355 in the ARD does not provide evidence that the amount in issue in the appeal is greater than $5,000. The amount in issue in the appeal is the amount contemplated by Order 3 in the Certificate of Determination. Had the respondent appealed on the basis that the order should have been $5,355, then s 352(3)(a) would have been satisfied. But that is not the case in this appeal.
Finally, s 352(3)(b) is plainly satisfied.
Notwithstanding the respondent’s concession, the appeal is dismissed as incompetent as s 352(3)(a) is not satisfied.
Although in my view the appeal is determined as being incompetent, I have nevertheless determined the grounds of appeal on their merits against the prospect that my conclusion with respect to s 352(3)(a) is not correct.

ON THE PAPERS

The parties agree the appeal can be determined on the papers.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 and WC3, provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.

NATURE OF THE APPEAL

The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Workers Compensation Nominal Insurer v Hill[26] in the Court of Appeal, Basten JA said at [20]:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”
[26] [2020] NSWCA 54.
The point being made is that it is not an error of fact on the part of the Member to prefer one conclusion based on the evidence even if the Presidential Member might have reached a different conclusion on the same evidence. In reality, where the Member has expressed a preference for a view of the evidence which is “open”, the fact that an alternative view of the evidence is preferred by the Presidential Member will not satisfy the requirements of s 352(5).

DISCUSSION

Ground 1 – The Member made an error of fact or discretion by taking into account some irrelevant matter and failing to give sufficient weight to some relevant matter when accepting that the meniscal tear was acute or sudden rather than degenerative pathology

Appellant’s submissions

The appellant submits that the Member accepted there was an acute or sudden injury on the basis that an MRI identified a torn medial meniscus. The appellant submits that this was an erroneous assumption.
It was not in dispute that the MRI of 26 July 2023 showed a torn medial meniscus as well as degenerative osteoarthritis. Dr Bodel expressed the opinion that the torn medial meniscus was acute in nature, that it had been torn as a result of the respondent’s twisting while walking down the stairs. A/Prof Miniter considered the torn meniscus was degenerative in nature, that is, torn gradually as a result of degenerative process present in the respondent’s knee. The treating surgeon did not express an opinion as to whether the tear was acute or degenerative in nature.
The appellant submits that in relation to Dr Bodel’s opinion:
(a)    there were no X-rays or images available for review at the time of his examination;
(b)    Dr Bodel considered the medial meniscus tear was caused by a twisting injury on 26 April 2023, and
(c)    Dr Bodel did not have an accurate history in relation to the respondent’s pre-existing left knee condition.
The Member acknowledged each of these shortcomings.[27]
[27] See reasons, [109], [126], [117]–[118].
The appellant submits that absent Dr Bodel’s history of a “twisting” injury, he may not have formed the opinion he did. Likewise in the absence of knowing of the pre-existing knee complaint, Dr Bodel could not have formed a proper opinion as to whether the tear was acute.
The appellant challenges the Member’s conclusion at paragraphs [133] and [134] in relation to A/Prof Miniter’s opinion, that the absence of a reference to the torn meniscus in the initial report was difficult to reconcile. The appellant submits that A/Prof Miniter considered the meniscal tear degenerative, not acute. He did not say there was no meniscal tear, but that there was no acute meniscal pathology. The appellant submits that is entirely consistent with A/Prof Miniter’s opinion overall.

Respondent’s submissions

The respondent submits that it is well accepted that acute injuries can be caused by sudden trauma, such as a fall, twist or blow to the body. It is well known that a degenerative condition is a degeneration of a body part which involves the gradual loss of normal structure and function over time. Degeneration may be caused by ageing or result from trauma, infections or disease.
The Member had a full and complete statement from the respondent worker dated 4 March 2024.
The MRI of Dr Lee on 26 July 2023 concluded that there was a torn meniscus with a small parameniscal cyst, reactive bony odalman (sic, oedema) and partial tearing of the medial cruciate ligament. Dr Thomas’s opinion of 13 September 2023 was that the worker “had a meniscal tear along with some degenerative changes.”
Dr Bodel’s opinion is that the injury to the left knee was caused by the descending of the set of stairs and that she was asymptomatic prior to the injury. His opinion is that “(t)he main feature however is the tear of the medial meniscus caused by the event at work.”
A/Prof Miniter in his report of 17 April 2024 is of the opinion that the meniscal tear is longstanding and not the result of descending the stairs during a fire drill on 26 April 2023. A/Prof Miniter agrees there is a meniscal tear but it is not an acute lesion and is part and parcel of her severe osteoarthritic disease. He states that if there has been an aggravation of the medial compartment osteoarthritis then it is a 2 to 4 week period and no more. He is of the opinion the respondent worker does not require a knee arthroscopy whether this is a work related injury or not.
The respondent submits the appeal is not based on the respondent worker’s credit and accordingly there is no reason why the respondent worker’s past medical history should not be fully accepted as stated by the Member and as is relied upon by Drs Bodel, Thomas and Lee.

Appellant’s written submissions in reply

The appellant’s submissions in reply at paragraphs [5] and [6] repeat what has previously been submitted. At [7] the appellant submits:
“… whether a tear is acute or degenerative in nature requires medical support and cannot simply be reliant on the history reported by the [respondent]. The [appellant] submits that for the above reasons and those set out in the Appeal, the opinion of Dr Bodel should not be preferred.”
The appellant’s submission in reply at [8] seems to be a further assertion of the inadequacy of Dr Bodel’s assumption that the respondent had been previously quite well and without problems in her knee. At [9] the appellant submits that it does not understand the respondent’s submissions in paragraph [16] regarding the worker’s past medical history.
The appellant submits that the worker’s past medical history should not be fully accepted as it was inconsistently reported by Dr Bodel. An inconsistent history in relation to the respondent’s pre-existing condition might have influenced Dr Bodel’s overall opinion as to whether she suffered an acute meniscal tear on 26 April 2023.

Consideration

It is not altogether apparent from the submissions what material the appellant asserts was wrongly taken into account; wrongly not taken into account or been given insufficient weight. The appellant’s real complaint appears to be the Member’s preference for Dr Bodel’s opinion (over that of A/Prof Miniter).
The criticisms made of Dr Bodel’s opinion by the appellant before the Member were rejected by the Member. Advancing essentially the same argument(s) on appeal without demonstrating error on the part of the Member does not satisfy s 352(5) of the 1998 Act.
The unchallenged evidence of the respondent is that whilst descending the stairway she felt a click in her knee and had difficulty continuing descending the stairway on 26 April 2023.
There is no dispute that the respondent had a tear of the medial meniscus in the left knee.
The appellant and A/Prof Miniter have no explanation of the events of the respondent’s symptoms of pain and difficulty of movement following the stair incident on 26 April 2023.[28]
[28] Reasons, [138].
The Member accepted the opinion of Dr Bodel who said:
“The [respondent] has a tear of the medial meniscus in the injury that occurred whilst descending the fire stairs during the fire drill. This also caused the aggravation, acceleration, exacerbation and deterioration of an underlying disease process.
The main feature however is the tear of the medial meniscus caused by the event at work.”[29]
[29] ARD, p 23.
Given the undisputed finding of fact as to what happened to the respondent on the occasion of the incident, plus the undisputed medical opinion of a torn medial meniscus together with the acceptance of the worker’s history by all of the doctors, the Member’s finding adverse to the appellant was, with respect, inevitable.
The last sentence of Dr Bodel’s opinion, which was accepted by the Member, depended on the description of the injury on 26 April 2023 provided by the respondent worker in her accepted statements.
Furthermore, as the respondent observed:
“This appeal is not based on the Respondent Worker’s credit and accordingly there is no reason why the Respondent Worker’s past medical history should not be fully accepted as stated by her and as relied upon by Doctors Bodel, Thomas and Lee.”[30]
[30] Respondent’s submissions, [16].
The Member found:
(a) Dr Thomas in his report of 13 September 2023 described frequent mechanical symptoms like painful clicking and locking of the knee, “symptoms not recorded on 1 December 2022”,[31] and
(b) the clinical records date from 26 November 2021 making no other reference to the left knee symptoms prior to 26 April 2023.[32]
[31] Reasons, [114].
[32] Reasons, [115].
The Member said:
“117. While the [respondent’s] problem with her left knee recorded as osteoarthritis on 1 December 2022 is inconsistent with the past medical history noted by the doctor that she has had no problems with her knees, the doctor goes on to find that an injury occurred on 26 April 2023 in addition to the osteoarthritis condition. It is not apparent that this inconsistency impacts the doctor’s conclusion that an injury occurred on 26 April 2023.
118. Any inconsistency between the clinical notes taken on 1 December 2022 and the [respondent] stating that she had no prior injury to the left knee does not in any event preclude her proving she sustained a left knee injury on 26 April 2023.”
The Member rejected the opinion of A/Prof Miniter, making the point that A/Prof Miniter’s reasoning in forming the opinion that the meniscal tear was longstanding and part and parcel of the osteoarthritic condition was not fully explained and was inconsistent with the evidence of the severity of the respondent’s symptoms and the ongoing treatment she is receiving following 26 April 2023.[33]
[33] Reasons, [139].
The appellant’s criticisms of Dr Bodel’s opinion and its acceptance by the Member assumes incorrectly that Dr Bodel’s opinion depended on his conclusion that there was a twisting injury. Rather, Dr Bodel’s opinion was that there was an event at work which resulted in a tear of the medial meniscus on 26 April 2023.
The Member said:
“The weight of evidence supports the conclusion that the [respondent] experienced a sudden identifiable pathological change being a medial meniscus tear of her left knee whilst descending stairs during the fire drill on 26 April 2023.”[34]
[34] Reasons, [101].
She was correct. Ground 1 of the appeal is not made out and is dismissed.

Ground 2 – The Member made an error or law and discretion by failing to give adequate reasons and provide proper consideration to the available evidence

Appellant’s submissions

The appellant refers to r 78 of the Personal Injury Commission Rules 2021 and to the decision of Deputy President Snell in City of Ryde v Clarke,[35] and submits that the Member failed to give proper and due consideration to the opinion of A/Prof Miniter in the AALD at pages 2 and 3.
[35] [2023] NSWPICPD 22.
It submits that the Member made an error of law by failing to give sufficient weight to a number of factors when reaching the conclusion that the surgery was reasonably necessary:[36]
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment and its potential effectiveness, and
(c)    the actual or potential effectiveness of the treatment.
[36] Citing Diab.
The appellant submits that the Member simply preferred the opinions of Drs Bodel and Thomas over that of A/Prof Miniter, seemingly on the basis that Dr Thomas has reviewed the respondent’s condition on several occasions and his opinion is supported by Dr Bodel.
The appellant submits:
“Whilst the Member briefly summarised the opinion of [A/Prof] Miniter, Member Seaton failed to provide adequate reasons for preferring the opinions of Drs Bodel and Thomas over that of [A/Prof] Miniter. In this regard the [appellant] contends that there was a failure to provide the reasoning processes that led the Member to that conclusion reached in accordance with rule 78 of the [Commission’s] Rules.”[37]
[37] Appellant’s submissions, [30].

Relevant to the Member’s discretion, Drs Bodel and Thomas also either did not provide or provided minimal consideration of the significant concerns and alternative treatment options A/Prof Miniter raised. Had the Member provided appropriate consideration to A/Prof Miniter’s reasoning, the appellant contends that the Member would not have reached the conclusion that the surgery is reasonably necessary.

Respondent’s submissions

The respondent submits the Member provided the 22-page Certificate of Determination wherein she clearly set out the full history and her findings in the matter. She referred to and considered all the medical evidence and submissions on behalf of the respondent worker and the appellant. The Member has made clear her findings and has provided detailed reasons for such findings. Her conclusion that the proposed left knee surgery was reasonably necessary as a result of the injury on 26 April 2023 is correct.
The respondent submits the Member had a choice of following the opinion of Dr Bodel or that of A/Prof Miniter. She preferred the opinion of Dr Bodel and gave full reasons for her preference.

Appellant’s submissions in reply

The appellant submits that the respondent has not specifically responded to its submissions under Ground 2 of the appeal relevant to the Member’s reasoning and discretion. The appellant repeats its submissions.

Consideration

The preference for the opinion of the treating specialist, Dr Bijoy Thomas, and Dr Bodel over A/Prof Miniter’s view was clearly “open” on the evidence.
Furthermore, the Member engaged with the opinions of the expert witnesses in great detail. The Member noted in a summary way Dr Bodel’s opinion as follows:
“Dr Bodel sets out the facts on which he relies including the history provided by the [respondent], information from the investigations of her left knee, the opinion of the treating specialist Dr Thomas and his examination of the [respondent]. Dr Bodel draws on his entire body of experience fundamental to his professionalism and he is not required to ‘offer chapter and verse in support of every opinion’. I am satisfied however that the doctor has set out the basis for his opinion that the proposed surgery is reasonably necessary.”[38]
[38] Reasons, [164].
The Member then goes on to deal with A/Prof Miniter’s opinion that the proposed surgery is not appropriate. She correctly expresses the basis of that opinion as being that the respondent has advanced osteoarthritis and that in that circumstance she is most unlikely to achieve a positive outcome. She notes A/Prof Miniter’s view that arthroscopic procedures can make the knee worse, resulting in the next step of a knee replacement and that the respondent is a poor candidate for any type of surgical treatment.
She directly assesses the proposed surgery as “limited to alleviating the mechanical symptoms and managing the tear of the meniscus”.[39]
[39] Reasons, [167].
She was clearly entitled to prefer the opinion of a treating specialist who had reviewed the respondent’s condition on several occasions, even if it had not been supported by Dr Bodel. But in any event the treating specialist was supported by Dr Bodel.
The Member did advert to A/Prof Miniter’s alternative treatments but she said:
“It is now over a year since the injury occurred. The [respondent] has had conservative treatment including pain medication, anti-inflammatory medication, physiotherapy, she has worn tape and a brace on her knee and she has had a cortisone injection that Dr Thomas found failed to alleviate her symptoms. Surgery is now recommended by her treating specialist.”[40]
[40] Reasons, [170].
She plainly adverted to the cost of the proposed surgery as not being prohibitive, a point conceded by the appellant. The Member has provided the parties with a clear and detailed statement of her reasons.
The appellant’s criticisms of the Member’s Statement of Reasons amount to no more than a complaint that she did not prefer the evidence of A/Prof Miniter.
Ground 2 of the appeal is dismissed.

Ground 3 – The Member made an error of law in her treatment of the onus of proof

Appellant’s submissions

The Member expressed a view that the respondent discharged the onus. The appellant submits that the treatment of the expert witness, given that the characterisation of the meniscal tear was only addressed by Drs Bodel and Miniter, is such that the Member was effectively requiring the appellant to prove that the meniscal tear was degenerative in nature, rather than the respondent to prove that it was acute.
The appellant submits that at reasons [136], the Member notes there was no evidence to support that the meniscal tear is longstanding. There is also no evidence to support that it was acute, other than the opinion of Dr Bodel. It was for the respondent to prove, not the appellant.
At reasons [137], the Member has noted that it might be difficult to determine when the tear occurred from MRI. This however is what A/Prof Miniter in fact did. Dr Bodel did not as he did not see the imaging. The absence of earlier scans is an issue for the respondent, not for the appellant.

Respondent’s submissions

The respondent submits that the Member had a choice of following the opinion of Dr Bodel or that of A/Prof Miniter. She preferred the opinion of Dr Bodel and gave full reasons for her preference. It is submitted the appellant’s appeal in this matter has failed to establish that the Member made errors of fact or law and has therefore failed to prove the grounds of appeal.

Appellant’s submissions in reply

The appellant again contends that the respondent has not specifically addressed the submissions made under Ground 3 of the appeal.

Consideration

The Member found for the respondent after considering all of the evidence available to her. She did not dispose of the matter on the basis of the onus of proof.
What she found was that the evidence adduced by each of the parties when considered in its totality permitted her to draw a conclusion favourable to the respondent.
The statements at reasons [136] and [137] are not statements that the Member was placing any onus on the appellant. They were statements of fact. There was no evidence to support the opinion that the meniscal tear shown on the MRI of 26July 2023 was longstanding and there was no comparative imaging to enable a conclusion that the meniscal tear did not occur on 26 April 2023.
That this is so and was the Member’s reasoning process is plain from what follows in paragraph [138] where the Member concluded: “There is no evidence of an alternative occasion when a medial meniscus tear may have occurred.”
The weakness in A/Prof Miniter’s reasoning, as the Member observed, is that it is “inconsistent with the evidence of the severity of the [respondent’s] symptoms and the ongoing treatment she is receiving following the incident of 26 April 2023.”[41]
[41] Reasons, [139].
Ground 3 of the appeal is rejected.

DECISION

The appeal is dismissed.
The Certificate of Determination is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

23 April 2025