White v Secret Gardens of Sydney Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	White v Secret Gardens of Sydney Pty Ltd [2021] NSWPIC 331
APPLICANT:	Brian Lavel White
RESPONDENT:	Secret Gardens of Sydney Pty Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	3 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed left knee surgery; dispute regarding injuries to knees and/or consequential condition in the left knee; prior right knee injury; accepted injuries to shoulders; worker claimed that focus of treatment was on his shoulder injuries and he gave little notice to the alleged injuries to his knees; lack of complaints in treating doctors’ notes; failure to mention potentially significant novus actus in his statement and to independent medical examiners; scan taken after the incident showed meniscal pathology; Kooragang Cement Pty Ltd v Bates, Lyons v Master Builders Association of NSW Pty Ltd, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga and Hancock v East Coast Timbers Products Pty Ltd discussed and applied; Held - worker failed to discharge onus; employer not liable to pay for proposed surgery; award for the respondent.
DETERMINATIONS MADE:	1. The date of injury in the Application to Resolve a Dispute is amended by deleting “23 March 2018 (deemed)” and inserting “27 March 2018 (deemed)”. 2. The applicant has not discharged the onus of proving that he sustained injury to his knees, or that he developed a consequential condition in his left knee, arising out of or in the course of his employment with the respondent on 27 March 2018 (deemed). 3. The respondent in not liable to pay for the medical expenses for the cost of and incidental to the left knee arthroscopy proposed by Dr Thomas.
ORDERS MADE:	4. There will be an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Brian Lavel White (the applicant) is 58 years old and commenced employment with Secret Gardens of Sydney Pty Ltd (the respondent) in about May 2017. He last worked for the respondent on 27 March 2018.
There is no dispute that the applicant injured his shoulders arising out of or in the course of her employment on 27 March 2018 (deemed). Liability was accepted by Employers Mutual Ltd (the insurer) and I understand that weekly compensation and medical expenses have been paid. Precise details are unknown.
On 30 April 2020, the applicant’s treating surgeon, Dr Thomas, sought approval from the insurer to perform a left knee arthroscopy and meniscal repair. It would seem that the doctor also sought approval to perform similar surgery on the right knee on 7 May 2020. This later request is not in evidence and is not relevant to the current dispute.

On 24 June 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had sustained a consequential injury to his right knee as a result of his accepted right shoulder injury. It disputed that the applicant’s employment was a substantial contributing factor to his injury and denied that the applicant was entitled to the payment of weekly compensation and medical expenses. The insurer cited ss 4, 9A, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
On 22 July 2020, the insurer issued a further notice pursuant to s 78 of the 1998 Act, disputing that the applicant had sustained an injury to his right knee on 27 March 2018 (deemed). It disputed that the applicant’s employment was a substantial contributing factor to his injury and denied that the applicant was incapacitated and that it was liable to pay medical expenses. The insurer cited ss 4, 9A, 33, 59 and 60 of the 1987 Act.

On 10 September 2020, the insurer reviewed its decision pursuant to s 287A of the 1998 Act and confirmed that it intended to maintain its position. It disputed that the applicant had injured or developed consequential conditions in his knees, and it disputed that the surgery on the left knee that was proposed by Dr Thomas was reasonably necessary as a result of a work injury. The insurer cited ss 4, 9A, 33, 59 and 60 of the 1987 Act.

By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 7 April 2021, the applicant claims the cost of proposed left knee surgery pursuant to s 60 of the 1987 Act due to an injury sustained on
23 March 2018 (deemed).
The date of injury pleaded in the Application differs from the accepted date of injury of
27 March 2018. Accordingly, I have amended the date of injury to 27 March 2018 (deemed).

PROCEDURE BEFORE THE COMMISSION

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.

10.At the arbitration hearing on 9 June 2021, the parties agreed that the condition in the applicant’s left knee was such that the surgery proposed by Dr Thomas was reasonably necessary.
11.The applicant’s counsel completed his submissions, but I was concerned that the copy of the clinical notes of the Leichhardt Medical Centre that were attached to the Application were incomplete. Accordingly, I adjourned the matter and issued a Direction regarding the filing of this evidence and submissions. Due to difficulties in obtaining copies of the clinical notes, the timetable for compliance was extended, and I issued a further Direction on 24 June 2021.

12.Written submissions were filed by the applicant on 4 August 2021 and by the respondent on 11 August 2021.
13.In the course of reviewing the evidence, I observed that the dispute notices referred to ss 4 and 9A of the 1987 Act. At the arbitration hearing, the issue of substantial contributing factor was not identified as requiring a determination by me. This was obviously an oversight by the parties and is a relevant matter to consider in any injury dispute. Accordingly, I directed that the parties file further written submissions because neither counsel had addressed on this issue.
14.Written submissions were filed by the applicant on 18 August 2021 and by the respondent on 19 August 2021.

ISSUES FOR DETERMINATION

15. The parties agree that the following issues remain in dispute:

(a) Whether the applicant sustained an injury to his knees arising out of or in the course of his employment on 27 March 2018 (deemed) – s 4 and/or 4(b)(ii) of the 1987 Act.
(b) Whether his employment was the main or a substantial contributing factor to his condition – ss 4(b)(ii) and 9A of the 1987 Act.
(c) Whether the applicant developed a consequential condition in his left knee as a result of an injury sustained to his right knee on 27 March 2018 (deemed).
(d) Whether the respondent is liable for the cost of the proposed left knee surgery –
s 60 of the 1987 Act.

Documentary evidence

16.The following documents were in evidence before the Commission and taken into account in making this determination:
(a) The Application with attached documents;
(b) Reply with attached documents, excluding pages 22 to 26, and
(c) Application to Admit Late documents received on 12 July 2021.

Oral evidence

17.Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statements

18.The applicant provided statements on 21 August 2019, 25 November 2020 and
29 March 2021.
19.In his first statement, the applicant confirmed that he commenced employment with the respondent in about May 2017. He stated that he injured his left shoulder on
27 March 2018 when he was using a petrol hedger above shoulder height. He sought treatment and Dr Soo performed surgery on 6 June 2018. Due to over-reliance on his right shoulder, he began to experience symptoms. Surgery had been proposed and he wished to have the operation. The applicant did not mention any symptoms in or injuries to his knees.
20.In his statement dated 25 November 2020, the applicant indicated that he was required to lift and carry heavy items, climb up and down ladders, bend, twist, and squat, often in awkward positions for lengthy periods of time. He often operated hedging machinery above shoulder height for up to 40 minutes at a time. He claimed that this work took a toll on his neck, back, shoulders and knees.
21.The applicant stated that when he commenced employment with the respondent, he was recovering from a prior knee injury sustained in 2016, for which he had surgery. He advised that his right knee was not causing him any incapacity and was receiving no treatment. He had stopped having physiotherapy and taking medication.
22.The applicant stated that after he commenced employment with the respondent, he noticed an aggravation of pain in his right knee, and pain in his left knee due to the repetitive lifting, squatting, bending, and twisting.
23.The applicant stated that when he lodged his workers compensation claim, his primary concern was for his shoulder injuries, and he pushed the problems in his knees aside. His knee pain did not subside, and as his right knee condition deteriorated, he began over-compensating with his left knee. He developed a limp and clicking in his left knee, and weakness in both knees.
24.The applicant stated that the injury to his lumbar spine caused him to walk with an altered gait, which placed additional pressure on his left knee. He stated that he reported the referred pain into his lower extremities to his doctor on 19 September 2018.
25.The applicant stated that as his knee injuries became more painful, he consulted Dr Lim in late 2019. He told the doctor about his right knee injury sustained in 2016 and he discussed how his work at the respondent had impacted on his condition.
26.The applicant stated that his knees continued to deteriorate, so he was referred for an MRI scan of the left knee that revealed a complex tear of the posterior horn and body of the medial meniscus. Dr Lim referred him to Dr Thomas, who recommended an arthroscopy.
27.The applicant indicated that he was involved in a motor vehicle accident on
27 February 2019 and he suffered a temporary aggravation to his neck and shoulder injuries. He did not require any treatment or suffer any injury to his knees.
28.The applicant stated that he has constant pain in his knees, and he has difficulty sitting or standing for prolonged periods. He is also depressed. He can only walk short distances and he avoids walking up and down stairs. He experiences swelling in his left knee and he relies on daily analgesic and sleep medication. He is keen to undergo the recommended left knee surgery.
29.In his statement dated 29 March 2021, the applicant indicated that following his right knee injury and arthroscopic surgery in 2016, he was off work from 24 May 2016 to 4 July 2016. After the operation, he noticed intermittent pain in his left knee that he attributed to the use of crutches. He reported his pain to his doctor following the surgery and was referred for ultrasound investigation, which revealed no abnormality. He began to regain normal function in his right knee and the pain in his left knee subsided without the need for treatment.
30.The applicant stated that when he commenced employment at the respondent, he was not not suffering from any incapacity in his knees, but over the course of the next six to nine months, he developed pain his knees due to the nature and conditions of his employment. He stated that he was constantly required to lift and carry heavy items, climb up and down
ladders, bend, twist, and squat, often in awkward positions for lengthy periods. He also used
a jackhammer, did manual hammering, and carried large boulders.
31.The applicant again stated that when he lodged his claim, his focus was on his shoulder injuries. He had never been someone who liked to complain, and he avoided attending the doctor where possible. He was a proud person and had found it difficult to come to terms with the physical restrictions caused by his injuries.
32.The applicant stated that he consulted Dr Scarcella on 24 March 2019 and reported his left knee pain. He was not referred for any investigations or prescribed any treatment. The doctor did not at advise him to take any further steps regarding the knee injury and at that time the applicant’s focus was on his shoulder injuries.
33.The applicant stated that his knee injuries became more painful, and he consulted Dr Lim in late 2019. At around this time, he had an MRI scan that confirmed the left meniscal tear. Dr Thomas recommended that he have left knee surgery, and he was keen to do so.

Clinical notes of Leichhardt Medical Centre

34.The clinical notes of Leichhardt Medical Centre commence on 30 May 2016 and conclude on 24 June 2021.
35.On 30 May 2016, the applicant attended with right knee pain of one week’s duration after an incident when he was gardening. This was on the background of an injury 20 years earlier. He was referred for an ultrasound and an MRI scan. He had surgery on 14 June 2016.
36.On 20 July 2016, it was reported that the applicant had been certified fit to return to his pre-injury duties on 13 July 2016, but he had suffered an exacerbation of his pain and swelling.
37.At the consultation on 24 October 2016, the applicant complained of left knee pain. Dr Scarcella questioned whether this was compensation pain following the applicant’s right knee surgery. He referred the applicant for an ultrasound. The history in the report dated
27 October 2018 was “developed after injury and torn meniscus to right knee, query compensative pain to left knee, query cause?”. The findings were reported as being within normal limits.
38.The applicant attended the surgery on a regular basis in 2017, and on only one occasion in July 2018, but there were no further complaints regarding his knees.

39.At the next consultation on 24 March 2019, Dr Scarcella recorded that the applicant had been in a motor vehicle accent. He had suffered injuries to his neck and left wrist. The applicant did not see the doctor again until 6 January 2020.
40.On 6 January 2020, Dr Scarcella made the following entry:
“History:
Left knee pain 2-3 days
Can’t lock knee into straight position.
Twisting injury
Examination
Tender over medial aspect knee
McMurray’s positive
Draw test neg
PLAN
Reassured and Advised
MRI
Review
Actions:
Imaging request printed to Campsie Medical Imaging: MRI Scan - Knee, Left (inability to extend knee suggestive of meniscal tear
? Meniscal tear
Please bulk bill).”

41.The applicant had an MRI scan on his left knee on 9 January 2020. This showed a flap tear of the posterior horn and posterior body of the medial meniscus, an inner meniscal fragment attached to the posterior root, and a moderate radial tear of the mid-body segment of the medial meniscus.
42.On 11 January 2020, Dr Scarcella discussed the MRI scan findings that disclosed a left meniscal tear. He referred the applicant to two knees specialists, Dr Boyle and Dr Solomon. A further referral was issued on 2 February 2020, but it is unclear whether this related to the applicant’s left knee.
43.In a report dated 2 February 2020, Dr Scarcella advised that the applicant required surgery on his left knee, but he did not comment on causation.
44.The applicant did not attend the surgery again until 22 September 2020, at which time he complained about worsening back pain and right knee pain. The doctor recorded the past history of the right knee injury and surgery in 2016 and he noted that the previous claim had been closed. The doctor reported that the reason for the visit was for his neck and back symptoms. He referred the applicant for scans of his right knee and cervical and lumbar spines.
45.In the MRI scan dated 2 November 2020, it was reported that that applicant had a “previous meniscal tear a few years ago while at work. Underwent surgical intervention. Knee remains painful with pre-injury symptoms.? cause”. The previous meniscal surgery was observed by the radiologist, and he reported that there was no evidence of a meniscal tear or ligament damage. There was some chondral wear and bursitis.

46.On 7 November 2020, Dr Scarcella discussed the scan findings, and he referred the applicant to Dr Thomas for an opinion and management of the applicant’s right knee, neck and back symptoms. The applicant subsequently consulted the doctor on 12 occasions in 2021 regarding bilateral foot pain and general health issues.
47.Dr Scarcella issued certificates that the applicant had no current work capacity due to his right knee injury and he cleared him to return to work on 13 July 2016. The applicant suffered an aggravation and he had further time off from 19 July 2016 to 20 July 2016.
48.The notes contain doctor and hospital reports and scans relating to the applicant’s right knee injury in 2016. The claim form dated 7 June 2016 shows that the applicant suffered a right knee injury on an unspecified date when he was working for the St John of God Hospital. A claim was submitted to Allianz Australia Workers Compensation (NSW) Limited.

Clinical notes and reports of Workers Doctors

49.The clinical notes of Workers Doctors commence on 3 May 2018 and conclude on
17 April 2019. They include the notes of the general practitioners, physiotherapists, psychologists and Dr Soo.

50.On 3 May 2018, Dr Calvache-Rubio reported that the applicant injured his neck and shoulders due to heavy lifting and over shoulder height work, and he had back pain from overcompensation and numbness and tingling in his left hand. The doctor noted the history of the prior knee injury in 2016. He attributed the applicant’s injuries to his work as a gardener. The doctor diagnosed a cervical and lumbar strains, and a left shoulder labral tear and glenoid chondral fissure. This entry is consistent with the report that the doctor completed on that date. There was no report of any problems with the applicant’s knees.
51.The applicant attended the surgery on a regular basis throughout 2018 for treatment of his neck, back, left shoulder and psychological symptoms. Indeed, sometimes he attended a number of clinicians on the same day or every couple of days. On 4 September 2018, Dr Soo reported that the applicant had noticed the onset of right shoulder pain one week earlier. The applicant’s symptoms deteriorated and eventually Dr Soo referred the applicant for an MRI scan on 13 November 2018. This showed a labral tear, so the doctor sought approval for surgery in December 2018.
52.On 9 January 2019, Dr Lim noted that the applicant had meniscal surgery two years earlier. It seems that the applicant was experiencing some symptoms when walking, so the doctor referred him for MRI scans on both knees.
53.The applicant continued to attend the surgery on a regular basis in 2019. He would often see a general practitioner, physiotherapist and a psychologist on each occasion. In April 2019, Dr Calvache-Rubio reported that the applicant had been involved in a motor vehicle accident in February 2019. The nature of his injuries, if any, were not disclosed. There was no report of any problems with the applicant’s knees in these clinical notes.
54.Dr Lim reported on 8 August 2019. He recorded that the applicant injured his neck and shoulders due to heavy lifting and over shoulder height work for about a year. He also had back pain from overcompensation and numbness and tingling in his left hand. The doctor noted the history of the prior knee injury in 2016, but he recorded no complaints of knee pain.

55.Dr Lim diagnosed cervical spine herniations, a left shoulder labral tear and glenoid chondral fissure, tingling in the left hand, a right shoulder strain due to overcompensation, lumbar spine herniation at L5/S1, and chronic pain with psychological barriers. This diagnosis was reflected in the medical certificates. There was no mention of any problems with the applicant’s knees.

56.Dr Soo has provided a number of reports, but his focus was on treatment of the applicant’s shoulder injuries. In his initial report dated 3 May 2018, the doctor recorded a consistent history regarding the applicant’s left shoulder injury. he performed surgery on the applicant’s left shoulder on 8 June 2018.

57.On 27 July 2018, Dr Soo recorded that the applicant had developed compensatory pain in the right shoulder from overuse. Reports of these symptoms featured in the doctors later reports.
58.On 11 December 2018, Dr Soo advised the insurer that the applicant might have subluxed his right shoulder in the incident on 27 March 2018 and did not take notice of this due to the severity of the Injury to his left shoulder, or overuse of the right shoulder had resulted in gradual stretching of the posterior capsule, resulting in posterior instability. He felt that the latter was the most plausible cause of the right shoulder condition. There was no mention of any problems with the applicant’s knees in Dr Soo’s reports.

Reports of Dr Lee, Associate Professor Geevasing and Dr Singh

59.The applicant was troubled by ongoing paraesthesia in his left arm following the surgery, so he was referred to Dr Lee and Associate Professor Geevasing. There was no mention of any problems with the applicant’s right shoulder or knees.
60.The applicant was referred to Dr Singh for management of his back symptoms. Dr Singh stated that it was likely that the applicant’s low back symptoms were due to a mild annular tear and disc bulging at L5/S1. There was no mention of any problems with the applicant’s knees.

Reports of Dr Thomas

61.Dr Thomas reported on 30 April 2020. He noted that the applicant had been having trouble with his left knee for about a year, with pain and some clicking sensation in the medial aspect. of the knee. An MRI scan had revealed a complex tear involving the posterior horn and body of the medial meniscus and there was mild effusion on examination. He had an arthroscopy of his right knee about two years earlier and his right knee had recently started to give him similar symptoms.
62.Dr Thomas recommended that the applicant have an arthroscopy of his left knee. He did not comment on causation.
63.In his report dated 14 August 2020, Dr Thomas advised that the applicant had told him that he had been compensating with the left knee for a significant amount of time, so the doctor felt that this has contributed to the worsening of symptoms in his left knee. Conservative measures had not assisted, so surgery was appropriate. He stated that it was unlikely that the flap segment of the tear, which was longstanding, could be repaired.
64.Dr Thomas stated that the applicant was compensating for his right knee injury and recovery, so his right knee was not doing its share of the work, which lead to overcompensation from the left knee and the subsequent left knee issues. The doctor expected that the applicant would benefit from the surgery, with relief from his pain, an improved range of motion, and the loss of the locking.
65.Finally, in his report dated 19 October 2020, Dr Thomas indicated that during the applicant’s slow recovery from his right knee surgery, he was working, and his left knee bore the brunt and extra strain. Given the heavy and repetitive nature of the applicant’s duties, this would have contributed directly to an exacerbation and deterioration of his left knee symptoms.

Reports of Dr Gehr

66.Dr Gehr reported on 20 June 2019. He recorded that the applicant was involved in constant and heavy repetitive lifting, climbing ladders, and keeping his arms placed in precarious positions, often operating a hedging machine above shoulder height for periods greater than 40 minutes. He developed pain with his left shoulder, which became severe on
27 March 2018.
67.Dr Gehr noted that Dr Soo performed surgery on the applicant’s left shoulder on
6 June 2018. He subsequently developed problems with the right shoulder, and Dr Soo recommended right shoulder surgery. He had pain in his neck and back and was referred to Dr Singh. He was also involved in a motor vehicle accident in February 2019, sustaining a left wrist injury and an aggravation of his neck pain.
68.Dr Gehr diagnosed labral tears in both shoulders, soft tissue injuries to his cervical and lumbar spines, and an ulnar nerve lesion in his left elbow. He stated that the applicant’s employment was a substantial contributing factor to his left shoulder problem, and his was also related to his employment. He stated that the applicant’s capacity was limited due to his neck and back problems, the surgery on the left shoulder, and the prospect of surgery on the right shoulder.

69.Dr Gehr reported on 12 August 2020. He reported that the applicant had an arthroscopy on his right knee in 2016, and “it more or less resolved the problem”. He recorded a consistent history of the applicant’s pre-injury duties and noted that the applicant heard a pop and developed severe pain in his left shoulder when he was using a 15 kg petrol hedger above shoulder height for over 30 minutes on 27 March 2018. He continued to work but only used his right arm.
70.Dr Gehr reported that the applicant saw Dr Kochan and he was referred to Dr Sher, who performed surgery on his left shoulder on 6 June 2018. He subsequently developed problems with his right shoulder. Dr Soo performed an operation on his right shoulder in 2019 but this was of little benefit. The applicant also had pain in his neck and back.
71.The applicant told the doctor that he developed pain over the right knee at the time of the accident in March 2018, and this had also become “more consistent”. The applicant said that he started to develop problems with the left knee about a month after starting work, and he was not sure whether his left knee condition was made worse by work incident. Dr Thomas recommended surgery on his left knee.
72.Dr Gehr diagnosed work related injuries to his left shoulder and a subsequent problem with his right shoulder. Despite surgery, he continued to experience pain and stiffness in both shoulders. He had also suffered a soft tissue injury to his back.
73.Dr Gehr stated that the applicant’s right knee injury sustained in 2016 had never settled, and as a result of the ongoing problems with the right knee, he developed problems with his left knee, which started about a month after employment. The doctor believed that the applicant’s left knee problem was related more to the nature of his employment, because he was required to lift and carry objects, squat and use ladders, which put loads across his knee. He agreed that the left knee arthroscopy proposed by Dr Thomas was appropriate.
74.In his report dated 24 August 2020, Dr Gehr stated that the employment duties most likely caused the meniscal pathology. He advised that the need for the surgery proposed by Thomas flowed from the applicant’s employment, which included climbing ladders, performing heavy repetitive lifting, squatting, kneeling and reaching above head height. He commented that “such twisting actions are well known to cause meniscal injuries”.

Report of Dr Powell

75.Dr Powell reported on 16 July 2020. He noted that the applicant injured his left shoulder on 23 March 2018 when he was using a hedger. There were also symptoms in his neck. He had left shoulder surgery on 8 June 2019, and there was improvement in the applicant’s symptoms.
76.The applicant told the doctor that he began to experience symptoms in his left knee several weeks after commencing work with the respondent, which the applicant attributed to the nature and conditions of his employment. He discussed this with Dr Lim and was referred to Dr Thomas, who recommended surgery.

77.Dr Powell noted that the applicant had suffered a prior injury to his right knee and had undergone surgery. He experienced some improvement, but not a resolution of his symptoms. The applicant felt that the nature and conditions of his employment with the respondent had resulted in a further aggravation of his pre-existing right knee condition. the applicant also told the doctor about his neck and back symptoms.
78.Dr Powell diagnosed a left shoulder injury on 27 March 2018 and a consequential injury to his right shoulder. Surgery had been undertaken on both shoulders. The applicant also had non-specific cervical and lumbar spine symptoms, with mild tenderness and stiffness.
79.Dr Powell indicated that there was no evidence that the current injury involving the left knee had resulted from his employment at the respondent either directly or consequentially. He stated that the surgery proposed by Dr Thomas was appropriate for the management of the pathology in the applicant’s left knee, but it was not due to any injury sustained in the course of his employment. Further, there was no evidence that the applicant’s right knee symptoms had been caused by his work.

Report of Dr Wallace

80.Dr Wallace reported on 11 March 2019. He noted that the applicant’s duties included mowing, hedging, replanting and moving equipment, and he did some construction work including jack hammering for two to three days per month. He reported that the applicant injured his left shoulder on 27 March 2018, when he was standing on a ladder using a hedger. He had a series of tests, and was referred to Dr Soo, who performed surgery on
8 June 2018. The applicant indicated that he had undergone an operation on his right knee.
81.Dr Wallace noted complaints of left shoulder pain when lying on his left side or stretching, weakness in the left arm and intermittent paraesthesia at the ulnar aspect of the left forearm, stiffness at the left shoulder, constant aching pain, weakness and stiffness in his right shoulder, and constant aching pain in his back radiating to the right buttock, right leg and foot. The doctor examined and recorded his findings in respect of the applicant’s upper and lower limbs, and lumbar spine. He provided a diagnosis, but pages 22 to 26 have been excluded by reason of Regulation 44 of the Workers Compensation Regulation 2016 and so this does not form part of the evidence.

APPLICANT’S SUBMISSIONS

82.Mr Hickey submits that in his first statement, the applicant dealt with his initial shoulder injuries and surgery. According to his evidence, his focus was on his shoulder injuries, and the clinical records show that these injuries were significant and required surgical treatment.
83.Mr Hickey submits that in his second statement, the applicant described the heavy nature of his employment duties and the circumstances surrounding his accepted shoulder injury. The applicant stated that he had a prior right knee condition that was treated surgically in 2016, and this was not causing him any incapacity. He did not require any treatment or medication. He stated that he noticed an aggravation of pain in his right knee after he commenced work with the respondent and pain in his left knee due to the repetitive lifting, squatting, bending, and twisting.
84.Mr Hickey submits that the clinical notes of Leichhardt Medical Centre recorded details of the applicant’s right knee injury and surgery in 2016. The applicant complained of left knee pain on 24 October 2016, and this is the last reference to the applicant’s knees. The notes are consistent with the applicant’s evidence.
85.Mr Hickey submits that the applicant pushed the problems with his knees aside, but his right knee deteriorated, and he began overcompensating with his left knee. In his later statement, the applicant indicated that he had no incapacity in his knees, but over the next six to nine months, he developed knee pain due to the nature and conditions of his employment. His evidence regarding the nature of his duties has not been challenged by the respondent.
86.Mr Hickey submits that the applicant stated that he was not one to complain and he avoided seeing doctors. He stated that his knee condition deteriorated, and on 24 March 2019, he reported his left knee pain to Dr Scarcella, but was not referred for tests. He later conferred with Dr Lim, who referred him for an MRI scan that showed meniscal pathology. Dr Thomas had recommended surgery.

87.Mr Hickey submits that the clinical notes do not contain any reference to the applicant’s knee complaints, but this is consistent with the applicant’s evidence that his focus was on his shoulders. The applicant said that he informed Dr Lim and Dr Scarcella about his knee. The authorities confirm that one must be cautious regarding the contents of clinical notes and the weight to be given to them.
88.Mr Hickey submits that on 3 May 2018, Mr Heuston recorded that the applicant had injured his left shoulder and had difficulty with his activities of daily living. On 3 and 21 May 2018, Dr Soo recorded details of the applicant’s left shoulder complaints and the need for surgery. The applicant had surgery on 8 June 2018 and on 10 June 2018, Dr Lee reported details of the applicant’s post-surgery symptoms and referred the applicant for EMG studies.
89.Mr Hickey submits that on 24 July 2018, Dr Soo reported that the applicant had significant brachial plexus symptoms with numbness and pins and needles in his left hand. This evidence shows that the applicant had a significant condition in his left shoulder, and this was overriding all other issues.
90.Mr Hickey submits that Dr Powell reported that the applicant’s post-operative period was uneventful, and his condition had largely improved, but this is inconsistent with the applicant’s medical evidence.
91.Mr Hickey submits that on 4 September 2018, Dr Calvache-Rubio and Dr Soo reported that the applicant had ongoing symptoms in his left shoulder and there was the emergence of back and right shoulder symptoms. This is reflected in subsequent consultations. By October 2018, the applicant had received extensive treatment for his left shoulder injury, he was taking medication and he was struggling with psychological issues due to his pain. It was reported that his right shoulder pain was worse in October 2018 and November 2018.
92.Mr Hickey submits that on 27 November 2018, Dr Soo recorded that it was possible that the applicant had suffered a severe injury to his right shoulder at the same time as the left shoulder but due to brachial plexus lesion on the left, the right shoulder was not as symptomatic. He recommended surgery.
93.Mr Hickey submits that on 9 January 2019, Dr Lim reported that the applicant had meniscal surgery two years earlier following an unrelated previous knee injury, and this was worse when walking. The applicant was referred for MRI scans.
94.Mr Hickey submits that the applicant stated that he attended on Dr Lim in respect of his left knee, but this is not recorded in the doctor’s notes. The first reference to the applicant’s left knee was in the notes of the Leichhardt Medical Centre. Dr Scarcella referred the applicant to Dr Boyle on 11 January 2020, but the applicant saw Dr Thomas.
95.Mr Hickey submits that Dr Thomas recorded that the applicant had been troubled by left knee pain and the MRI scan showed meniscal damage. He noted that the applicant had an arthroscopy of his right knee about two years earlier, and the applicant indicated that recently his right knee had started giving him similar symptoms. He recommended an arthroscopy.
96.Mr Hickey submits that Dr Thomas’ dates were inaccurate, so one must be cautious about the timelines, however, the complaints made to the doctor regarding the pre-existing condition were consistent. In his report dated 14 August 2020, the doctor noted that the applicant had an arthroscopy of the right knee about two years ago and he had a long complicated recovery. During that time, he had been compensating by using his left leg to help reduce the load and stress on the right knee and this contributed to the worsening of his left knee symptoms. His right knee had also recently been giving him trouble.
97.Mr Hickey submits that Dr Thomas explained that because the applicant was compensating for his right knee injury and recovery, the right knee was not doing its share of the work, and this led to overcompensation and the subsequent left knee issues. The extra stress placed on the knee and the heavy work duties had contributed to the condition in the applicant’s left knee and the need for surgery.
98.Mr Hickey submits that in his report dated 19 October 2020, Dr Thomas stated that when the applicant was recovering from his right knee injury and surgery, he placed excessive strain on his left knee, so it bore the brunt for a significant period. He felt that the applicant’s heavy work duties would have directly contributed to the exacerbation and deterioration of his left knee symptoms. Thus the doctor supports two alternative propositions. One should take caution regarding Dr Thomas’ opinion regarding the reopening of the prior claim.
99.Mr Hickey submits that in his report dated 12 August 2020, Dr Gehr recorded that the applicant developed pain in his right knee at the time of his accident and it became more consistent. He also developed left knee pain about one month after starting work. The doctor reported that the applicant’s prior right knee injury had never settled, and as a result of ongoing right knee problems, he developed problems in his left knee. He stated that the left knee problem was related more to the nature of his employment at the respondent. So he seems to support two causes of the applicant’s left knee injury.

Mr Hickey submits that in his final report, Dr Gehr stated that the applicant’s work duties caused the medial meniscal pathology that was shown in the MRI scan, and the need for surgery resulted from the applicant’s employment. This opinion is consistent with the views of Dr Thomas, and if one accepts the applicant’s history, then injury was caused by his employment, or alternatively the condition is secondary.
Mr Hickey submits that the history recorded by Dr Powell is at odds with the applicant’s medical evidence. The doctor stated that there was no evidence that the applicant injured his left knee in the employ of the respondent, but the doctor disregarded the applicant’s evidence, and he did not engage with the onset of symptoms and the nature of the work performed. He does not dispute that the type of work could cause the pathology. He says that there was not “sufficient evidence”, which does not mean that there was no evidence. He accepted that the surgery was appropriate.

Mr Hickey submits that there is a sufficient link between that nature of the applicant’s duties and the pathology shown to be satisfied that the applicant suffered an injury in the course of his employment to both knees, and if there was overreliance, then the left knee condition was secondary to a right knee injury sustained at the respondent. The need for left knee surgery resulted from his employment injuries and there should be an award in the applicant’s favour.

In his written submissions, Mr Hickey submits that the applicant stated that he reported his knee symptoms to Dr Lim in the context of a workplace injury and he was referred to Dr Thomas. Although updated clinical notes are not in evidence, the report of Dr Thomas dated 30 April 2020 addressed to Dr Lim made it plain that he was the source of the referral. This is consistent with the applicant’s history.

Mr Hickey submits that any submission that the entry on 6 January 2020 in the Leichardt Medical Centre notes is inconsistent ignores the applicant’s history that he reported the work-related knee symptoms to Dr Lim prior to that date and there was a history of ongoing pain from his work with the respondent.
In his written submissions in reply, Mr Hickey submits that the dispute as agreed by the parties at the hearing did not raise “main contributing factor” as a relevant matter, and as such, it is not required to be addressed. Notwithstanding the nature of the dispute, the applicant will make submissions.
Mr Hickey submits that the applicant pleads both an aggravation injury in respect of the left knee with an alternative pleading of a consequential condition to left knee due an overreliance resulting from the right knee injury, those concepts not being mutually exclusive.
Mr Hickey submits that there is an aggravation of a disease if the work has made it “worse in the sense of more grave, more grievous or more serious in its effects upon the patient”[1], and “if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker”[2]. This has been clarified in a number of other decisions[3].
[1] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 (Semlitch).
[2] Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (Cant).
[3] Kelly v Western Institute NSW TAFE Commission (2010) NSWWCCPD 71; Hunter New
England Local Health District v Iles [2013] NSWWCCPD 58; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
Mr Hickey submits that it is not necessary for the applicant to demonstrate that the employment was the main contributing factor to the disease process as a whole, but rather to the aggravation itself[4]: It is a legal question that must be determined on the whole of the evidence, and the fact that a doctor does not address the ultimate legal question to be decided is not fatal[5]. The concept of “main” as opposed to “substantial” gives rise to a more stringent and greater causal connection to that which applied formerly prior to the 2012 amendments[6].
[4] Murray v Shillingsworth [2006] NSWCA 367, [63].
[5] Guthrie v Spence [2009] NSWCA 369, [194] to [199] and [203]; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, [72].
[6] AV v AW NSWWCCPD 9, (AV v AW), [68] and [77] to [78].
Mr Hickey submits that in his report dated 12 August 2020, Dr Gehr confirmed that there were two aspects to the development of the applicant’s left knee symptoms, namely the heavy nature of the work undertaken, and an overreliance on the left knee due to the right knee work injury. Dr Gehr considered that the left knee condition was more related to the nature of his employment. In his last report, he confirmed that the applicant’s work duties most likely caused the medial meniscal pathology that was identified in the MRI scan taken in 2020.
Mr Hickey submits that Dr Thomas indicated that the heavy nature of the applicant’s employment would have contributed directly to the exacerbation and deterioration of the applicant’s symptoms in his left knee. Therefore, both doctors were of the view that the employment with the respondent gave rise to an aggravation for the purposes of s 4(b)(ii) of the 1987 Act.

Mr Hickey submits that the applicant’s second statement seeks to address his knee injuries. He stated that he developed pain in his right knee and left knee associated with the work that he was undertaking, and his knees were aggravated as a result of the employment. The treating clinical notes are reflective of this.
Mr Hickey submits that the applicant’s main focus was on shoulder injuries and to a lesser extent his lower back, and this is consistent with his evidence, and these were the matters that were being addressed by his treating doctors. Dr Gehr’s initial report was focused on the original dispute with respect to the applicant’s shoulders. No adverse finding should be drawn from that forensic report. In his later reports, Dr Gehr confirmed that the nature and activities of work over time led to the aggravation.
Mr Hickey submits that Dr Thomas had issues with the chronology, but this is not fatal to the applicant’s case, because his opinion was arrived in a “fair climate”. Dr Thomas stated that the aggravation of the left knee condition was brought about by the nature of the work being undertaken with the respondent.

RESPONDENT’S SUBMISSIONS

The respondent’s counsel, Ms Hogan submits that the applicant’s first statement does not assist, as it relates solely to his left shoulder injury, but it is relevant when considering when complaints about the left knee were made.
Ms Hogan submits that in his second statement, the applicant understated the issue of the prior right knee injury when he said that it was not causing him any incapacity. This does not mean that his knees were asymptomatic.
Ms Hogan submits that although the applicant alleges that he was focused on his shoulder injuries, he made numerous complaints about other body parts, including his lumbar and cervical spines. The clinical notes from the Workers Doctors are extensive and contain the notes of practitioners from multiple disciplines, and this goes entirely against the suggestion that the left knee was reported to Dr Lim. The entry of ‘referred pain’ on 19 September 2018 was a reference to back pain. The clinical notes of the Workers Doctors prior to April 2019 are extensive, and there are no complaints about the applicant’s knees.
Ms Hogan submits that although the applicant indicated in his last statement that he had never been one to complain and he avoided attending the doctor where possible, the clinical records show that the applicant made consistent complaints about numerous body parts excluding his knees. His explanations cannot be accepted, as they are inconsistent with the medical evidence.
Ms Hogan submits that Dr Gehr made no reference to the applicant’s knees in his first report, but he mentioned problems in the applicant’s shoulders, cervical spine, and lumbar spine. In his second report, Dr Gehr recorded that the applicant felt right knee pain at the time of the accident, and that his left knee started hurting about a month after the accident. The doctor later stated that the applicant’s left knee condition developed as a result of the right knee, and the left knee developed as a result of the activities of his employment. In his last report, the doctor stated that left knee condition was caused by the nature and conditions of employment. She submits that the doctor’s opinions are so inconsistent that they cannot be accepted.
Ms Hogan submits that when Dr Thomas saw the applicant on 30 April 2020, he recorded an incorrect history regarding the date of the applicant’s right knee surgery. He also reported that the applicant had experienced problems in his left knee for about a year. Such a history is inconsistent, because the applicant last worked for the respondent on 27 March 2018.
Ms Hogan submits that in his report dated 14 August 2020, Dr Thomas recorded a history that there was a long, complicated recovery from the applicant’s right knee surgery, and that he had been compensating by using his left leg to help reduce the load and stress on his right knee. According to Dr Thomas, the left knee condition was related to the right knee because he was required to put excessive strain on his left knee when he was working in heavy duties after his right knee surgery. This seems to be a misunderstanding that the applicant had the surgery whilst in the employ of the respondent. The doctor suggested that the prior right knee claim should be reopened, which suggests that the left knee is related to the prior right knee injury.
Ms Hogan submits that on 24 October 2016 Dr Scarcella that the applicant had compensatory left knee pain after his right knee surgery. On 6 January 2020, Dr Scarcella recorded that the applicant had suffered a twisting injury to his left knee two to three days earlier. There was no history of this incident in the applicant’s statements, so his evidence cannot be accepted. The diagnostic tests also referred to the history of the prior right knee injury and the possibility of pain in left knee. There is no evidence to support the applicant’s claim that he injured his left knee in the course of his employment with the respondent.
Ms Hogan submits that the applicant alleges that he injured his right knee and developed a consequential condition in his left knee. She submits that there is a history of prior symptoms in both knees, the left knee being related to the prior right knee injury with a different employer. Dr Thomas and Dr Scarcella both linked the symptoms to the prior injury to the right knee.
Ms Hogan submits that the opinion of Dr Gehr can be rejected because he was not aware of the incident that was recorded by Dr Scarcella in January 2020.
Ms Hogan submits that Dr Powell reported that the applicant’s left knee symptoms developed several weeks after he commenced employment, but there were no recorded complaints until 6 January 2020. The applicant denied any prior injuries to the left knee, which is inconsistent with the evidence. Dr Powell stated that the applicant’s left knee condition was not related to his employment directly or consequentially. The applicant did not mention any problems with his knees when he saw Dr Wallace in March 2019.
Ms Hogan submits that the applicant has not made out that his left and right knee conditions are in any way related to his employment with the respondent. Accordingly the left knee surgery is not required as a result of an injury sustained at the respondent.
In reply, Ms Hogan submits that it appears from the dispute notice dated 24 June 2020 that the injury to the left knee was claimed as a consequential injury, but on review on
27 August 2020, it was alleged that the left knee injury was sustained as a result of the nature and conditions of employment.
Ms Hogan submits that the pleadings and medical evidence are inconsistent with the case advanced, and given the marked inconsistencies, it would be unfair for the matter to proceed on a different basis at this late stage. The case was advanced on the basis as agreed at the arbitration, and that is what was responded to by the respondent.

Ms Hogan submits that the applicant has difficulty advancing a case that the left knee condition was an aggravation injury to which his employment was the main contributing factor. He seemed to deny that he had any pre-existing issues in his left knee, or at the least, he downplayed those symptoms.
Ms Hogan submits that submits that Drs Gehr and Thomas do not support the position that employment was the main contributing factor to the aggravation of the left knee injury. Dr Gehr said that the left knee condition either arose as a result of the nature and conditions of employment, or as a result of ongoing problems with the right knee. This appears to be a reference to the injury suffered in previous employment, because he reported that the previous problems from 2016 never settled down and had remained symptomatic.
Ms Hogan submits that Dr Gehr indicated that the applicant’s left knee symptoms arose around one month after employment commenced with the respondent and were due to the nature and conditions of his employment. Dr Gehr did not say that the left knee condition was in the nature of an aggravation. He initially suggested was that the condition was related to the prior right knee injury.
Ms Hogan submits that Dr Thomas does not clearly indicate there has been an aggravation of the left knee condition as a result of employment with the respondent, and that his employment was the main contributing factor. He suggested that the prior claim should be reopened.

Ms Hogan submits that the applicant made no complaint about his left knee for a considerable period of time after ceasing work with the respondent, and there has been no explanation for the entry of 6 January 2020 in the clinical notes of Dr Scarcella.
Ms Hogan submits that a different case should not now be advanced. However, to the extent that the issue has been raised, there could be no finding that there was an aggravation injury to the left knee. There is no evidence of any aggravation to the left knee, and even if there was, it would be difficult to conclude that the applicant’s employment was the main contributing factor to the aggravation because of the prior right knee condition and the twisting injury referred to in the clinical notes on 6 January 2020.

REASONS

Did the applicant sustain injury to his knees – ss 4 and/or 4(b)(ii) of the 1987 Act

The applicant relies on a disease injury with a deemed date of 23 March 2018. This date was obviously a typographical error, as all of the evidence refers to 27 March 2018. He pleads his injuries in the following terms:
“Disease injury to the right upper extremity, left upper extremity, right lower extremity, left lower extremity, cervical spine and lumbar spine. The claimant was employed as a gardener with the respondent. He was required to undertake heavy and repetitive tasks that involved bending, squatting, twisting, lifting and climbing ladders. The applicant was required to squat in awkward positions for prolonged periods. As a result of the nature and conditions of his employment, the applicant sustained an aggravation injury to the right knee and subsequent injury to the left knee as a result of both the nature and conditions of his employment and over-reliance on the left knee.”
Whilst the allegation of injury with respect to the right knee is clear, the allegation of injury in respect of the applicant’s left knee is somewhat ambiguous. The pleadings refer to a subsequent injury to the left knee, which may be either an injury simpliciter in terms of s 4(a) and s 4(b) of the 1987 Act, or an aggravation in terms of s 4(b)(ii) of the 1987 Act.
At the arbitration hearing, Mr Hickey only referred to an “injury”, and did not use the term “aggravation”. Ms Hogan tailored her submissions accordingly. There was no application to amend the pleadings.

Whist it is true that the Commission is not a tribunal of strict pleadings, one cannot totally disregard the description of the applicant’s injury in the Application. Whilst the parties agreed about the matters that were in dispute, namely injury to both knees and the consequential condition in the applicant’s left knee, there was no discussion or agreement regarding the nature of the injury.
It was for this reason I directed the parties to file submissions regarding the nature of the injury which would require submissions regarding s 9A of the 1987 Act , if the applicant relied on s 4(a) of the 1987 Act, or main contributing factor if the applicant relied on s 4(b)(ii) of the 1987 Act. The submissions only referred to main contributing factor and not substantial contributing factor.
Section 4 of the 1987 Act defines injury as follows:
“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”.

In order to be satisfied that an injury has occurred, there must be evidence of a sudden
[7] [2000] NSWCC 12; 19 NSWCCR 496.
[8] (2003) 25 NSWCCR 422, [429].
or identifiable pathological change: Castro v State Transit Authority (NSW)[7], or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd [8], “the word ‘injury’ refers to both the event and the pathology arising from it”.
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[9].
[9] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
Although the High Court in Comcare v Martin[10] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the facts of the case.
[10] [2016] HCA 43, [42].
The applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland[11].
[11] [2008] NSWWCCPD 134 (Ireland), [89].
The applicant relies on s 4(b)(ii) of the 1987 Act, namely an aggravation, acceleration, exacerbation, or deterioration of pre-existing pathology in his right knee. However, it is not entirely clear whether he relies on an injury simpliciter or an aggravation injury in respect of his left knee.
What constitutes an aggravation of a disease process was discussed by Windeyer J in Semlitch. His Honour stated:

“The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”[12].

[12] Semlitch [369].

Prior to the 2012 amendments, s 4(b)(ii) of the 1987 Act provided that the employment had to be a contributing factor to the aggravation of a disease, and that being the case, in accordance with s 9A of the 1987 Act, it had to be a substantial contributing factor to the aggravation as opposed to the disease itself. This was confirmed by Burke CCJ in Harpur v State Rail Authority(NSW)[13] and in Cant where he stated:
“… the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is the contribution to the aggravation not to the overall disease”[14]
[13] [2000] NSWCC 3; (2000) 19 NSWCCR 256, [79].
[14] Cant, [23].
However, s 4(b)(ii) of the 1987 Act provides that the employment must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. Therefore, as in Cant, the employment needs to be the main contributing factor to the aggravation of the disease rather than the main contributing factor to the disease itself. This was confirmed by Deputy President Snell in AV v AW, where he stated:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[15]
[15] AV v AW, [78].
The principles of statutory interpretation are well established and have been confirmed by the High Court in Project Blue Sky v Australian Broadcasting Authority[16] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[17], and in the Commission in Hesami v Hong Australia Corporation Pty Ltd[18].
[16] [1998] HCA 28; 194 CLR 355.
[17] [2009] HCA 41; 239 CLR 27 (Alcan).
[18] [2011] NSWWCCPD 14.

In order to understand what “main contributing factor” means, one must interpret the ordinary and grammatical meaning of the text, the language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application

A consideration of the text can be assisted by reference to dictionary definitions of the words used in the legislation. According to the online version of the Macquarie Dictionary, “main” means “chief” or “principal”, suggesting a higher degree that a “substantial contributing factor”.
The applicant’s initial statement gives no guidance regarding his alleged knee injuries, but that is not surprising, given that this statement was obtained for the purposes of a dispute in respect of the applicant’s right shoulder injury.
In his second statement, the applicant described the strenuous nature of his employment duties and he claimed that his work “took a toll” on his knees. He acknowledged that he was still recovering from his prior knee injury and surgery at the time that he commenced employment with the respondent, but he had ceased treatment. His comment that his right knee was not causing him any “incapacity” is confusing, and one might infer from this that he was not asymptomatic.
The applicant claimed that after he commenced employment with the respondent, he noticed an aggravation of pain in his right knee. He also said that he developed pain in his left knee due to his work duties. He gave no indication precisely when these symptoms developed. He claimed that his focus was on his shoulder injuries, so he pushed his knee problems aside. His knee pain persisted, and as his right knee condition deteriorated, he began over-compensating with his left knee. He developed a limp and clicking in his left knee, and weakness in both knees. He also had an altered gait due to his back condition.
The applicant stated that he reported the referred leg pain to his doctor on
19 September 2018. The entry made by Dr Calvache-Rubio on that date noted “ongoing back pain, worse lately, referred to lower legs”. This no doubt related to radiculopathy rather than any knee pathology.
The applicant claims that he told Dr Lim in late 2019 about his prior right knee injury and he discussed how his work had impacted on his condition. Such a history cannot be corroborated, because the clinical notes do not extend beyond April 2019, and Dr Lim did not refer to any knee symptoms in his report in August 2019.

In his last statement, the applicant again stated that he had no incapacity when he commenced work with the respondent, but over the course of six to nine months, he developed pain his knees due to the nature and conditions of his employment. His description of the heavy nature of his duties has not been challenged by the respondent.
The applicant stated that he avoided doctors and was not one to complain. His focus was on his shoulders. He claimed that he told Dr Scarcella about his left knee pain on 24 March 2019, but the doctor made no recommendations, and he had no treatment. He saw Dr Lim at about this time, was referred to Dr Thomas, and surgery had been recommended.
The clinical notes of the Workers Doctors are quite comprehensive and comprise the notes of a number of different clinicians, including the treating surgeon, Dr Soo. Unfortunately, they conclude in April 2019. It is remarkable that up-to-date notes were not obtained.
When the applicant attended the surgery for the first time on 3 May 2018, he told Dr Calvache-Rubio about his right knee injury in 2016, but there was no history of any problems in his knees due to his employment with the respondent. The applicant only complained about his neck, back and shoulders.
There were no knee complaints recorded in the notes until 9 January 2019, when Dr Lim referred the applicant for an MRI scan on both knees. The only history recorded seemed to suggest that the symptoms were worse when walking. The nature of the symptoms and which knee or knees were symptomatic was not disclosed. There is no indication in the notes or in the evidence that the applicant had these scans. There was no further mention of knee symptoms in 2019.
Significantly, in his report dated 8 August 2019, Dr Lim recorded no injury to or complaints about the applicant’s knees. Rather, the doctor identified injuries to and symptoms in various parts of the applicant’s body, including his neck, back, shoulders and hands, chronic pain and “psychological barriers”. There was no reference to the applicant’s knees in the doctors’ certificates. Dr Soo’s entries and reports only refer to the applicant’s shoulders.

Little assistance is provided by the reports of Dr Lee, Associate Professor Geevasing, Dr Singh, Dr Wallace and the initial report of Dr Gehr. These doctors were concerned with applicant’s shoulder injuries, although Drs Wallace and Gehr noted that the applicant also had problems with his neck and back. The applicant did not mention any issues with his knees when he was examined by these doctors, apart from his prior right knee injury.

According to the history reported by Dr Thomas in his first report, the applicant had been experiencing left knee symptoms for about a year, suggesting the onset around April 2019. This history differs from the history recovered in the applicant’s second statement regarding the onset of symptoms over a period of six to nine months after he commenced employment. The applicant commenced employment around May 2017, so this would date the onset of symptoms at around November 2017 to February 2018. There was no comment on causation.
In his report dated 14 August 2020, Dr Thomas reported a history that the applicant had had been compensating with the left knee for a significant period, so the doctor felt that this had contributed to the worsening of symptoms in his left knee. The doctor explained that the applicant had been compensating for his right knee injury, so his right knee was not doing its share of the work. This led to overcompensation from the left knee and the subsequent left knee issues.
Such an opinion would seem to suggest that the applicant’s left knee symptoms had resulted from the applicant’s right knee injury in 2016. However, in the doctor’s last report, he stated that the heavy and repetitive nature of the applicant’s duties would have contributed directly to an exacerbation and deterioration of his left knee symptoms. So it seems that the doctor is having a bet both ways.
According to the history recorded by Dr Gehr, the right knee arthroscopy in 2016 “more or less resolved the problem”. One could infer from this comment that the applicant still had symptoms, which may well be consistent with his evidence of having no “incapacity”. The applicant said that he started to develop problems with the left knee about a month after starting work and he experienced pain over the right knee at the time of the accident in March 2018. Such a history differs from that in his second statement and from that recorded by Dr Thomas.
Dr Gehr considered that the applicant’s left knee meniscal pathology was related more to the nature of his employment, which included climbing ladders, performing heavy repetitive lifting, squatting, kneeling and reaching above head height. So, he supports an injury to the applicant’s left knee, rather than a consequential condition.
According to the history recorded by Dr Powell, the applicant began to experience symptoms in his left knee several weeks after commencing work. This history is similar to that recorded by Dr Gehr. The doctor noted that the applicant had experienced some improvement following his right knee surgery in 2016, but he was not asymptomatic. This seems somewhat similar to what the applicant told Dr Gehr.

Dr Powell was not satisfied that there was any evidence of an injury to the applicant’s left knee as a result of the applicant’s employment, however, he did not explain why he held that view. Therefore, little if any weight can be given to his opinion.
The clinical notes of Leichhardt Medical Centre are important as they include consultations since the applicant injured his right knee in 2016. Significantly, Dr Scarcella noted at the consultation on 24 October 2016 that the applicant had left knee pain, and he questioned whether this was compensatory in nature following the applicant’s right knee surgery. The ultrasound findings were within normal limits. Therefore, it seems that the applicant developed a consequential condition in his left knee as a result on his 2016 right knee injury.
According to the applicant’s statement, he told Dr Scarcella about his left knee at the consultation on 24 March 2019. This is inconsistent with the doctor’s entry in the clinical notes that only mentioned neck and left wrist pain following a motor vehicle accident. The doctor referred that applicant for x-rays, an ultrasound and a CT scan, and I assume that the doctor would have referred the applicant for diagnostic tests on the applicant’s left knee if he had in fact complained about knee pain.
The entry in the doctor’s notes on 6 January 2020 is of great significance. Dr Scarcella recorded that the applicant had experienced left knee pain for two to three days following a twisting injury. The nature of this twisting injury was not disclosed. The doctor suspected that the applicant had a meniscal tear, so he referred the applicant for an MRI scan, which confirmed his suspicions. On 11 January 2020, the doctor revered the applicant to Drs Boyle and Solomon, but it would seem that he did not see either of these specialists.
At the next consultation on 22 September 2020, the applicant complained about worsening back and right knee pain. The doctor recorded the past history of the right knee injury and surgery in 2016, but there was no history of any injury at the respondent.

Conclusion

The first matter that I need to determine is whether the applicant sustained an injury to his right knee in the form or an aggravation due to the nature and conditions of employment for the purposes of s 4(b)(ii) of the 1987 Act.
The MRI scan taken in June 2016 showed a bucket handle tear of the medial meniscus, and this was treated by an arthroscopy in 2016. The applicant claimed that he had no incapacity when he started work with the respondent, presumably meaning that he still had right knee symptoms.
When one examines the various histories, there is a lack of consistency regarding the onset of the applicant’s knee symptoms after he commenced employment with the respondent. Therefore, there are concerns about the reliability of the applicant’s evidence and the weight to be given to it.
In his statement, he claimed that he experienced symptoms in both knees over the course of six to nine months due to his work. He claimed that he reported his symptoms to his doctors at various times, but this is not apparent from the contemporaneous clinical notes from Workers Doctors and the Leichardt Medical Centre. Whilst Dr Lim referred the applicant for MRI scan of his knees in January 2019, there was no causal nexus identified in the notes.
Dr Thomas did not record a history of any right knee symptoms arising from his work duties. Rather, he referred to compensating for his right knee injury, which caused symptoms in the applicant’s left knee. He did not express any opinion regarding any causal connection between the applicant’s right knee symptoms and his employment with the respondent. Dr Powell also had no history of an injury to the right knee at the respondent.
The applicant told Dr Gehr that he started to experience right knee pain at around the time of the work incident on 27 March 2018. This is at odds with his statement and the history of Dr Thomas. In any event, Dr Gehr made no comment on causation of the applicant’s right knee symptoms
The applicant also gains no support for a right knee injury from the notes of Dr Scarcella. There is a lack of any record of a complaint regarding the applicant’s right knee after 2016 until September 2020, and even then, there was no suggestion of any work relationship.
Mr Hickey submits that one need to be cautious regarding the contents of the clinical notes. In decisions such as Davis v Council of the City of Wagga Wagga[19], Nominal Defendant v Clancy[20], King v Collins[21]and Mastronardi v State of New South Wales[22], the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment. In the Court’s view, the notes rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient.
[19] [2004] NSWCA 34.
[20] [2007] NSWCA 349.
[21] [2007] NSWCA 122.
[22] [2009] NSWCA 270.
This also was confirmed in Winter v NSW Police Force[23], where Deputy President Roche stated:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34] – [36]).”[24]
[23] [2010] NSWWCCPD 12 (Winter).
[24] Winter, [183].
One has to look at the evidence in each case and in the present matter, one could not say that the entries in the clinical notes of the Workers Doctors are lacking in content. Rather, they are detailed and very comprehensive. The applicant attended the practice on a regular basis throughout 2018 and early 2019. This is at odds with his evidence that he was not one to complain and that he avoided seeing doctors. Even if his focus was on his significant shoulder symptoms and treatment, he still complained about his neck and back, tingling in his left hand and psychological issues.

It is true that the applicant only attended the Leichhardt Medical Centre intermittently, but I consider that the entries in those notes are also not lacking in content.
The heavy nature of the applicant’s duties may well have had the potential to cause an aggravation of whatever pathology was present in the applicant’s right knee in March 2018, but whether it did so is another question. None of the doctors have diagnosed a disease process. The most recent MRI scan referred to an under surface tear along the posterior horn, the previous medial meniscectomy and bursitis. There was no evidence of a recurrent or residual medial meniscal tear, so it unclear what previous pathology was allegedly aggravated.
The applicant claims that he suffered an injury to his right knee due to the nature and conditions of employment, but there is no persuasive medical evidence to substantiate any causal connection. The focus of the evidence was on the applicant’s left knee and the prior right knee injury.
In the circumstances, having regard to the common-sense test in Kooragang and the principles discussed in Ireland, Semlitch, Cant and AW v AV, I am not satisfied that the applicant has discharged the onus of proving that he suffered an injury in the form of an aggravation of a disease in his right knee arising out of or in the course of his employment with the respondent on 27 March 2018 (deemed). It therefore follows that the applicant did not develop a consequential condition in his left knee as a result of a right knee injury sustained on 27 March 2018 (deemed).
The next matter to consider is whether the applicant injured his left knee due to the nature and conditions of employment. At least one can say that there is medical evidence in support of such a contention. It then becomes a question of the weight to be given to that evidence.
Many of the concerns I had about the reliability of applicant’s evidence regarding his alleged right knee injury are applicable in respect of his alleged left knee injury.
The clinical notes of Dr Scarcella confirm the details of the applicant’s right knee injury in May 2016, and the development of a consequential condition in the left knee in October 2018. Tests on the left knee showed no abnormality.
In his statements, he claimed that he developed pain his knees due to the nature and conditions of his employment over the course of six to nine months, in contrast to the histories recorded by Drs Thomas, Gehr and Powell. The was no history of any injury when Dr Lim referred the applicant for knee scans in January 2019. His alleged complaint to Dr Scarcella about his left knee in March 2019 is not corroborated in the doctor’s notes.
According to Dr Thomas, the applicant’s left knee symptoms resulted from the applicant’s right knee injury in 2016, but there was also a contribution from the nature and conditions of employment. It would seem that the doctor’s opinion is largely based on the unreliable history that was given to him by the applicant. Given the absence of any complaint in the contemporaneous clinical notes, one would have to question the weight to be given to such an opinion.

Dr Gehr considered that the left knee meniscal pathology that was disclosed in the MRI scan dated 9 January 2020 was more related to the nature of his employment, so he, like Dr Thomas, supports a causal nexus.
Although both of these doctors have provided opinions that support the applicant’s claim, they did not obtain a history of the incident in January 2020. This was obviously a significant incident for a number of reasons.
Firstly, the applicant had not reported any problems with his left knee since October 2016. There is no record in the clinical notes that the applicant was troubled by left knee symptoms or that he required any treatment.
The applicant attended Dr Scarcella on 6 January 2020, and he told the doctor that he had experienced left knee pain for two to three days. The circumstances of injury were not described apart from the reference to a “twisting injury”. The doctor obviously thought the applicant had sustained an injury of some degree, given that he referred him for an MRI scan. This disclosed a meniscal tear, so he referred the applicant to two knee specialists. The applicant later saw Dr Lim, who referred him to Dr Thomas.
The applicant failed to mention the twisting incident to Dr Thomas and to Dr Gehr. His failure to disclose such a significant incident to these doctors compromises their opinions, particularly given Dr Gehr’s comments that “twisting actions are well known to cause meniscal injuries”. They should have been given this history, so they could have provided an informed opinion regarding the effects of this twisting incident and how it might have impacted on their views.
Given that these doctors have not commented on the effects of this incident, their opinions are deficient and therefore no weight can be given to their views on causation on the basis of the principles discussed in Hancock v East Coast Timbers Products Pty Ltd[25].
[25] [2011] NSWCA 11
There is a temporal element between the twisting incident, the reporting of symptoms to Dr Scarcella on 6 January 2020 and the meniscal damage disclosed in the MRI scan on
9 January 2020. In the absence of any earlier medical evidence, common sense would seem to suggest that the meniscal damage was more likely caused by the twisting incident in January 2020 rather than any work injury two years earlier, or any consequential condition. However, there is no medical evidence to confirm or challenge such a proposition, so I am not in a position to draw a conclusion one way or another. In any event, it is not a matter that concerns me in this dispute.
Given the lack of contemporaneous medical evidence, inconsistent histories, and the lack of any comment by the doctors regarding the effect of the twisting incident in January 2020, I am not satisfied the applicant has discharged the onus of proving that he suffered an injury to his left knee arising out of or in the course of his employment on 27 March 2018 (deemed). It follows that the respondent is not liable to pay for the cost of the left knee surgery proposed by Dr Thomas.

Accordingly, there will be an award for the respondent.

FINDINGS

The date of injury in the Application to Resolve a Dispute is amended by deleting
“23 March 2018 (deemed)” and inserting “27 March 2018 (deemed)”.
The applicant has not discharged the onus of proving that he sustained injury to his knees, or that he developed a consequential condition in his left knee, arising out of or in the course of his employment with the respondent on 27 March 2018 (deemed).
The respondent in not liable to pay for the medical expenses for the cost of and incidental to the left knee arthroscopy proposed by Dr Thomas.

ORDERS

There will be an award for the respondent.

[2021] NSWPIC 331

3 September 2021