Williams v Sutherland Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Williams v Sutherland Shire Council [2022] NSWPIC 498
APPLICANT:	Jeffrey David Williams
RESPONDENT:	Sutherland Shire Council
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	7 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in relation to the applicant’s left knee involving consideration as to whether injuries before and after 30 June 1985 contributed to incapacity for employment in period 3 November 2017 to 26 December 2017; Held – the applicant sustained a personal injury to his left knee on 10 June 1979 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017; the applicant also sustained an injury under section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) as a result of the aggravation of the disease in the left knee with the deemed date of injury of 29 August 2006 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017; the respondent is liable to pay the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week; pursuant to section 22 of the 1987 Act there is to be an apportionment of the respondent’s liability in the amount of 50% in respect of the injury on 10 June 1979 and 50% in respect of the disease injury; pursuant to section 22A (5)(b) of the 1987 Act the respondent in the interest of the self-insurer is to pay to the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week; pursuant to section 22A(4) of the 1987 Act the respondent in the interests of IGF is to pay to the self-insurer 50% of the award of weekly compensation; there is to be an award for the respondent in the interests of its insurers AAI Limited t/as GIO, Allianz Australia Ltd and Employers Mutual Limited.
determinations made:	1. The applicant sustained a personal injury to his left knee on 10 June 1979 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017. 2. The applicant also sustained an injury under s 4(b)(ii) of the Workers Compensation Act 1987 as a result of the aggravation of the disease in the left knee, with the deemed date of injury of 29 August 2006, which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017. 3. The respondent is liable to pay the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week. 4. Pursuant to s 22 of the Workers Compensation Act 1987 there is to be an apportionment of the respondent’s liability in the amount of 50% in respect of the injury on 10 June 1979 and 50% in respect of the disease injury. 5. Pursuant to s 22A (5)(b) of the Workers Compensation Act 1987 the respondent in the interest of the self-insurer is to pay to the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week. 6. Pursuant to s 22A(4) of the Workers Compensation Act 1987 the respondent in the interests of IGF is to pay to the self-insurer 50% of the award of weekly compensation. 7. There is to be an award for the respondent in the interests of its insurers AAI Limited t/as GIO, Allianz Australia Ltd and Employers Mutual Limited.

STATEMENT OF REASONS

BACKGROUND

Jeffrey David Williams, the applicant, was employed with the respondent, Sutherland Shire Council, in varying capacities over many decades. The Council has had different workers compensation insurers during the course of the applicant’s employment.
The respondent’s insurers’ periods of risk are:
(a)    30 June 1975 to 30 June 1982 Baltica Scandinavia Insurance Co Ltd, formerly known as Greatlands General Insurance Co. The Insurer’s Guarantee Fund (IGF) is responding to the claims in this period of risk;
(b)    30 June 1982 to 6 August 1985 AAI Ltd t/as GIO is responding to claims in this period;
(c)    6 August 1985 to 30 June 1987 Allianz Australia Ltd is responding to claims in this period;
(d)    30 June 1987 to 30 September 1988 Allianz Australia Workers Compensation (NSW) Ltd was on risk in this period and Employers Mutual Ltd is responding to claims in this period, and
(e)    from 30 September 1988 to date the respondent is self-insured.
The Application to Resolve a Dispute (ARD) was amended at the outset of the hearing as follows:
(a)    On page 3 added “a section 66A agreement dated 19 November 2008 in respect of lump sum compensation of $2,640 in respect of 12% permanent loss of use of the left leg at or above the knee in respect of nature and conditions of employment.”
(b)    On page 10 under the heading “periods of risk”, the names of those insurers were amended to be consistent with the description of them above.
(c)    On page 13 under the heading “Injury Details- 8/03/1983” in the injury description box the date “14.01.1980” is deleted and to be replaced with “8/03/1983” and after the word “respondent” the words are deleted and replaced with “was training for a board rescue and stepped into a hole and twisted his left knee”.
(d)    On page 14 under the heading “Injury Details- 30/06/1988” in the injury description box in the blank space in brackets the words “left knee” are added.
In addition, the applicant’s counsel amended the claim for compensation in the ARD, however this has been overtaken by his post-hearing written submissions. The date on page 18 of the ARD of “5/03/2004” was deleted as the claim for weekly compensation commences on 3 November 2017.
By way of summary, it is noted the applicant alleges he sustained the following injuries to his left knee:
(a)    10 June 1979 when running up an embankment to retrieve a bin he stepped into a gutter;
(b)    14 January 1980 when he stepped off a garbage truck he strained his left knee;
(c)    8 March 1983 when training for a board rescue he twisted his left knee when he stepped into a hole;
(d)    21 March 1987 when travelling in an inflatable rescue boat, which rolled over he twisted his left knee;
(e)    1 January 1990 when he stepped into a hole when running on the beach in a rescue mission, twisting his left knee;
(f)    2 February 1991 when a person fell onto his hyperextended left knee when in an inflatable craft;
(g)    16 October 1995 twisted left knee when operating jet rescue craft that crashed down on large wave;
(h)    8 January 1996 strained left knee when dragging an aluminium bin full of sand;
(i)    9 September 2000 twisted his left knee when trying to catch steel frame which blew over;
(j)    nature and conditions of employment up to 5 March 2004 aggravating his left knee when working as lifeguard, bending and lifting, and
(k)    disease injury with deemed date of injury 5 March 2004.
The claim for compensation in these proceedings is confined weekly compensation only in relation to his left knee. It is apparent that the applicant suffered from injuries to other body parts including to his left shoulder on 26 September 2001, psychological injury and he has complaints and/ or injuries in relation to his low back, neck, ankles and right knee.
Weekly compensation has been paid up to and including 2 November 2017 when the self-insurer ceased payments, upon the applicant turning 66 years, relying on s 52 (1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant underwent a total left knee replacement on 2 October 2020.
The central issue in dispute is whether the applicant has incapacity for employment after 3 November 2017 as a result of injury to his left knee and if so, which insurer is liable for such incapacity. This involves a careful consideration of the medical evidence.
There was a lack of clarity at the arbitration hearing as to the applicable legislative provisions in relation to the claim for weekly compensation. There are a number of injuries occurring before the commencement of the Workers Compensation Act 1987 (the 1987 Act).
In the applicant’s written submissions it is stated that Schedule 6, Part 4, cl 4(3) of the 1987 Act applies. It provides:
“If a period of incapacity for work resulted both from injury received before the commencement of Division 2 of Part 3 of this Act and an injury received after that commencement, the incapacity shall, for the purposes of determining the amount of compensation payable in accordance with this clause and for the purposes of clause 6, be treated as having resulted from the injury received after that commencement.”
The applicant submits “effectively” he is to be compensated under the 1987 Act as amended in 2012.
Section 52 of the 1987 Act was the subject of submissions. It deals with the termination of weekly compensation on retirement age. Section 52(4) of the 1987 Act states that s 52 does not apply to injuries received before 30 June 1985. The applicant relies on the decision in McLennan V Roads and Maritime Services[1] which considered the decision of the Court of Appeal in Rizk v Royal North Shore Hospital[2]. At [69] in McLennan it was held that Rizk was binding authority and if an award of weekly compensation is made in respect of incapacity due to injuries before and after 30 June 1985 s 52 does not apply due to the operation of s 52(4). It was explained that the employer’s indemnity arrangements are immaterial to the primary liability to pay weekly compensation if there was incapacity due to injuries sustained before and after 30 June 1985.
[1] [2016] NSWWCCPD 59, McLennan.
[2] (1994) 10 NSWCCR 427, Rizk.
However, the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) contained other provisions that curtailed the payment of weekly compensation under the 1987 Act. In the applicant’s submissions reference is made to s 39 of the 1987 Act. That section provides that there is no entitlement to weekly compensation to a worker after 260 weeks of weekly compensation has been paid or payable to a worker. The only exception is if he has been assessed to have permanent impairment resulting from the injury of more than 20%. The applicant at present has no such assessment.
The Workers Compensation Regulation 2016, Schedule 8, Part 1, cl 4 provides that for the purposes of applying s 39 of the 1987 Act no regard is to be had to any weekly compensation paid or payable before 1 January 2013.
Therefore, the applicant asserts he is “entitled to weekly compensation from 3 November 2017 to 31 December 2017 (being 5 years after 1 January 2013)”. I note s 39 does not refer to “5 years” but to “260 weeks”. 260 weeks from 1 January 2013 is in fact 26 December 2017.
The applicant also claims he is entitled to weekly compensation pursuant to s 41 for three months post-surgery, from 2 October 2020 to 1 January 2021. However, this claim is not legally maintainable in my view at this time. Section 39 states it applies “[d]espite any other provision of this Division”. Section 41 is in the same division as s 39 and therefore s 39 precludes any weekly compensation being paid in the applicant’s case after 26 December 2017. This situation may change depending on an assessment of his permanent impairment. For this reason I consider this part of the claim has been made prematurely and I decline to make any orders in relation to the same in these proceedings. For completeness sake, I also note s 41(5) has a number of requirements which must be satisfied, which the applicant has not addressed.
Therefore, the only claim for weekly compensation which can be validly made, in my view, in these proceedings is for weekly compensation from 3 November 2017 to 26 December 2017, a period of 7 weeks and 1 day. This is claimed at the rate of $478 per week, a total of $3,441.60.
The submissions by the respondent in the interests of the self-insurer argue that there is no evidence to support a finding that any part of the relevant incapacity results from injury prior to 4.00pm on 30 June 1985. It further argues that the evidence establishes that the injury giving rise to the relevant incapacity is in the nature of a disease within the meaning of
s 4(b) (ii) of the 1987 Act in relation to employment duties performed up to 5 March 2004. The consequence of this argument, if it is accepted, is that the applicant has received his full entitlement of weekly compensation as s 52(4) would not apply.
The self-insurer also argues that the deemed date of injury is 3 November 2017 because no incapacity is alleged prior to that date. This seems incongruous given it paid weekly compensation for years before that date. It submits ss 15 and 16 of the 1987 Act refer to “incapacity for which there is an entitlement” and it argues that here there is no entitlement because the applicant has been paid to 3 November 2017. This part of the argument is flawed in my view because there was an “entitlement” before that date, it just has been satisfied by the payment of the weekly compensation. Furthermore, s 16 deals with the aggravation etc of disease and deems the date of injury as the date of incapacity, it does not limit the deemed date of injury in the way argued by the self-insurer. However, this dispute about the correct deemed date of injury for a disease injury does not affect the self-insurer’s primary argument.
There is no challenge to the mathematics set out in these written submissions at [12] as follows:
“For the first period from 3 November 2017 to 31 December 2017:
a.Workers Compensation Act Schedule 6, clause 2(1) provides that the “transitional amount” is to be deemed as the pre-injury average weekly earnings for determining weekly payments to an existing recipient of payments as at 1 October 2012;
b.The indexed transitional amount as at 3 November 2017 was $1,035.90.
c.As the Applicant was in some employment in that period, section 38(7) provides that the weekly compensation in that period is $1,035.90 x 80% = $828.72 less earnings of $350.73 (see ARD page 109) = $477.99, which should be rounded to $478 per week.”
IGF at [6] of its written submissions concedes the mathematical accuracy of these figures.
The applicant submitted is does not matter for the disease allegation if the deemed date of injury is 2004 or 2006. The applicant submits he last worked for the respondent performing strenuous duties on 5 March 2004. He worked in alternate duties up to 29 August 2006, which he claims did not cause further injury. It is stated in his submissions he was paid weekly compensations for all periods from 29 August 2006 until 2 November 2017.
Mr Baker for Allianz Australia Ltd advised that his client had issued a s 78 notice disputing that injury had occurred in its period of risk. He advised that, however, his client had since ascertained it paid $185 for physiotherapy treatment after the only injury alleged to have occurred in its period of risk, on 21 March 1987. He argues that this injury was self-limiting.
Mr Combe for IGF says the issue to be determined is the characterisation of the injury, whether it is a series of frank events for which there can be apportionment or is it a disease for which there would be no entitlement to compensation. He states the issue is what is the true cause of the incapacity for the purposes of s 33 of the 1987 Act. It is stated there are other causes of the incapacity such as the other physical injuries and the psychological injury. He argues that there is a live issue as to whether there is evidence to establish incapacity from 3 November 2017 due to the left knee. He added if a disease is not found, and a series of frank incidents was found to cause incapacity then findings under s 22 of the 1987 Act would need to be made. In that case, he argues that any apportionment to the 1979 injury would be nugatory as the applicant had returned to full employment after the surgery.
Mr Grant for GIO submits that his client disputes there was injury to the left knee in its period of risk and he submits this is a classic disease case.
Mr Barter for EML also submits there was no injury in his period of risk and if the Personal Injury Commission (the Commission) finds there was, his client relies on a failure to notify the injury.
Mr Harris adopts Mr Combes’ submissions and re-iterates that the applicant has to show incapacity from 3 November 2017 is due to injury before 30 June 1985 and Dr Millons says the 1979 injury was self-limiting.
The submissions of all the parties will be considered in more detail later in these reasons. The above outline has been given to attempt to identify at the outset the issues in dispute from each parties’ position, noting that the oral submissions were supplemented by written submissions after the conclusion of the arbitration hearing.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
9 June 2022. Mr John Dodd, counsel, instructed by Mr David McCabe, solicitor from McCabe Partners Lawyers, appeared for Mr Williams, who was present.
Mr Andrew Combe, counsel, instructed by Mr William Roberts, solicitor from William Roberts Lawyers, appeared for the respondent in the interests of IGF.
Mr Stuart Grant, counsel, instructed by Ms Julie Welthagen, solicitor from Thompson Cooper Lawyers, appeared for the respondent in the interests of AAI Limited t/as GIO.
Mr Tony Baker, counsel, instructed by Mr Jim Vrettos, solicitor, from Rankin Ellison Lawyers, appeared for the respondent in the interests of Allianz Australia Ltd.
Mr Graham Barter, counsel, instructed by Ms Christine Bellemore, solicitor from Bartier Perry Lawyers, and Ms Hatfield from the insurer appeared for the respondent in the interests of Allianz Workers Compensation NSW Ltd (formerly Switzerland Insurance Workers Compensation (NSW)) now being handled by EML.
Mr Stephen Harris, solicitor, from Moray & Agnew, appeared on behalf of the respondent in the interests of the self- insurer.
36.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents filed on behalf of IGF;
(c)    Reply and attached documents filed on behalf of GIO;
(d)    Reply and attached documents filed on behalf of Allianz Australia Limited;
(e)    Reply and attached documents filed on behalf of Allianz Australia Workers Compensation (NSW) Limited;
(f)    Reply and attached documents filed on behalf of the self-insurer;
(g)    Application to Admit Late Documents dated 4 May 2022 filed by the applicant;
(h)    Application to Admit Late Documents dated 18 May 2022 filed by IGF;
(i)    Application to Admit Late Documents dated 1 June 2022 filed by the self-insurer;
(j)    Application to Admit Late Documents dated 3 June 2022 filed by AAI Limited t/as GIO attaching an Amended Reply;
(k)    Application to Admit Late Documents dated 5 June 2022 filed by IGF;
(l)    Application to Admit Late Documents dated 8 June 2022 filed by IGF attaching Complying Agreement dated 19 November 2008;
(m)     letter from Moray & Agnew, Lawyers, dated 4 Janaury 2021 addressed to Dr David Millons AM, which was marked as Exhibit A;
(n)    written submissions from the solicitor for the self-insurer dated 9 June 2022;
(o)    written submissions from the applicant’s counsel dated 12 June 2022;
(p)    written submissions from the counsel for IGF dated 23 June 2022, and
(q)    written submissions from the solicitor for the self-insurer dated 23 June 2022.

Oral evidence

There was no oral evidence. The legal representatives made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Before considering the respective parties’ submissions, it is helpful to briefly outline the main evidence before the Commission in relation to the left knee.

Applicant’s statement

The applicant has provided a lengthy statement dated 14 May 2021[3]. He states that he started work with the respondent in 1977 as a casual waste service collector and driver. He relates the circumstances of the injury to his left knee in 1979 and details of his subsequent treatment, including the meniscectomy surgery. He says at [21] he has had trouble with his knee ever since. He has painful restriction of movement and an inability to put significant weight on the left knee.
[3] ARD p 1.
He also relates details of injury when he slipped off a garbage truck on 14 January 1980 straining his left knee. The claim form in relation to this injury refers to the applicant twisting his left knee in this incident[4].
[4] GIO reply p 46.
The applicant also refers in his statement to injury on 8 March 1983 when training for a board rescue he stepped into a hole and twisted his left knee. The claim form for this incident is in the GIO reply[5]. The applicant says in his statement that he did not take time off work for this injury but by 6 May 1983 his knee was unbearable, so he consulted his general practitioner Dr Nair.
[5] GIO reply p 49.
He states on 21 March 1987 when travelling in an inflatable rescue boat, which rolled over, he twisted his left knee. The claim form and notification of injury are in the GIO reply[6]. He had no time off work but had physiotherapy treatment.
[6] GIO reply pp 52 and 53.
In 1988 Dr Alan Innes Brown examined the applicant for Dr Nair and refers to infrapatellar bursitis from the pressure effects of board riding. This appears to relate to the right knee as the doctor says the applicant will protect his right knee by some padding on the board. The doctor also advises there is some arthritic change in the left knee and to a much lesser extent in the right knee[7]
[7] GIO reply p 43.
He also related in January 1990 he stepped into a hole when running on the beach in a rescue mission, twisting his left knee. He says he knee swelled, and he had intensive physiotherapy but had no time off work.
The applicant refers to another left knee injury when his knee was hyperextended when in an inflatable craft on 2 February 1991 and a fellow lifeguard fell on his leg. In a Register of Injuries the applicant says this injury occurred on 6 February 1991[8]. He refers to the injury with quite a bit of detail, that he was working as a lifeguard for the respondent when he was involved in a rescue of swimmers at Elouera Beach and was driving the inflatable rescue boat. He says he was struck by a patient’s body during the rescue and sustained a swollen, painful knee[9]. He packed his knee in ice. In his claim form for the same incident he states the injury was to his left knee, but he gives the date of injury as 6 January 1992. Only the first page of this claim form is available[10].
[8] ARD p 88.
[9] Self-insurer’s reply p 1.
[10] ARD p 89 and self-insurer’s reply p 2.
It is somewhat confusing because in his statement the applicant refers to another incident on 6 February 1992 when a drowning victim fell onto his knee causing his to take three days off work and have extensive physiotherapy.
A medical certificate from Dr Nair in the part signed by the applicant is dated 8 February 1991 but in the part signed by the doctor the date is given as 8 January 1992[11]. However, Dr Nair wrote to Mr Richardson on 8 January 1992 advising that the applicant had a soft tissue injury to his left knee as a result of a rescue and has an effusion to his left knee[12].
[11] GIO reply p 38.
[12] GIO reply p 40.
The applicant says on 16 October 1995 when using a jet rescue boat he crashed down on a large wave and twisted his left knee. A Register of Injuries and Treatment form dated 16 October 1995 refers to a twisting injury that day to the applicant’s left knee when he fell onto the jet rescue bike after hitting a large wave 150 metres offshore to North Cronulla beach. He treated himself with ice and compression.[13]
[13] ARD p 90 and self-insurer’s reply p 3.
A Register of Incidents/Injuries and Treatment dated 10 January 1996 refers to injury to the back, hamstring and knee on 8 January 1996 while carrying bins of sand. The treatment given involved ice packs and stretching[14]. In his statement the applicant says he lost no time off work as a result of this injury.
[14] ARD p 91 and self-insurer’s reply p 4.
The applicant states on 9 September 2000 while giving a seminar a steel frame was dislodged in the wind and he twisted his left knee when dealing with it. He says this aggravated his knee, but he took no time off work.
At [25] of his statement the applicant says there have been numerous incidences where he has re-aggravated his left knee including those summarised above. He adds that the physical nature of his employment with the respondent resulted in constant and persistent aggravations. At [27] he says he stopped work as a lifeguard and worked in the survey section in a desk job. He said he did this until 29 August 2006 when he was off on workers compensation payments, and he was allocated various light jobs as a courier.
He states from 7 March 2008 to 19 December 2008 he was employed by Carrington National Mortgage Brokers processing loans on a commission basis, and he did not earn any money. He states in 2009/2010 he attempted to conduct a four-wheel drive business, but it failed as he could not do the physical work involved. The applicant states from 2010 to 2013 he carried out mostly handyman and gardening work and some bus driving work. He said he was supervised by Rehabilitation Services. He says he was paid workers compensation up until he turned 66 on 2 November 2017.
The applicant says he has not worked since 2014 due to his left knee and other injuries he suffered while employed by the respondent principally to his left shoulder and psychological injury.
The applicant has provided a further statement dated 22 April 2022[15] which deals with his wages post his employment with the respondent and provides calculations set out in the annexed wages schedule.
[15] AALD 4 May 2022 p 1.
A copy of the applicant’s statement dated 2 December 2016 is contained in the IGF reply[16]. This statement sets out the applicant’s early employment history as a bank clerk from the end of 1967 to 1970, then with the Atomic Energy Commission rising to becoming the payroll manager with a payroll of 1,350 people. He notes he attended TAFE for study of the higher school certificate, computerised accounting and business management. In 1973 he started his own transport business which ended in 1975 when his major client ceased NSW operations. In this statement he also sets out in detail the particulars of his many injuries with the respondent. He adds that he started work on 7 March 2008 at Carrington National Mortgages consulting, studying and processing loans. During this time he studied and obtained his Finance of Australia Certification enabling him to consult on mortgages. He says he processed over 130 mortgages but due to the Global Financial Collapse they did not go through, and he did not earn any money for all of his work.
[16] IGF reply p 48.
The applicant provides further detail in this statement about his efforts to obtain work in 2008 with Veolia bus driving but his problems with his ankles and left knee precluded this work. He sets out the details of his attempts at work from 2009 to the time of making his statement. He also relates in detail the disabilities he suffers from his physical and psychological injuries.

Dr Endrey-Walder

Dr Endrey-Walder provided reports for the applicant dated 8 July 2003[17], 6 July 2007[18], 2 June 2008[19], 12 June 2008[20], 9 July 2008[21], and 8 August 2008[22].
[17] ARD p 28 and self-insurer’s reply p 15.
[18] ARD p 34.
[19] ARD p 39 and self-insurer’s reply p 57.
[20] ARD p 50 and self-insurer’s reply p 68.
[21] ARD p 51 and self-insurer’s reply p 69.
[22] ARD p 52 and self-insurer’s reply p 70.
In the report dated 8 July 2003 the doctor took a history regarding the left knee injury in 1979 requiring a meniscectomy operation and 10 weeks off work. The applicant told the doctor that he had ongoing problems since this injury, but he persevered with his work as a garbage collector until November 1979 when he moved to a lifeguard position with the respondent. He also informed the doctor that over the years he suffered injury to his left knee probably half a dozen times, but he never took time off work but had a tremendous amount of physiotherapy.
On examination Dr Endrey-Walder found he had a slight limp which became more prominent without shoes, and he had a very significant degree of valgus alignment of the left knee. The doctor found the bony contour of the left knee was abnormal, he had difficulty in squatting, was unbalanced on the left knee when unsupported.
Dr Endrey-Walder advised the injury to the left knee in 1979 was significant. He opined that the applicant has significant reactive arthritic changes in the lateral compartment of the left knee and gradual valgus misalignment is now significantly impacting his ability to be on his feet for prolonged periods of time. The doctor did not have X-rays of the knee but predicted in the long term the applicant would need a total knee replacement.
In his reports dated 6 July 2007 and 2 June 2008, Dr Endrey-Walder he sets out in more detail all the injuries to the applicant’s left knee. He also refers to work the applicant has undertaken since he left the employ of the respondent such as casual delivery and bus driving, and mortgage management commission work. The doctor attributes the problems in the left knee to the 1979 injury and to the subsequent aggravations and nature and conditions of his work. He states that he doubts the applicant can work as a bus driver.
In his report dated 6 July 2007 Dr Endrey-Walder the history is recorded that in March 2004 the applicant was redeployed to the respondent’s survey unit which necessitated a lot of walking and carrying equipment. In April 2005 he was transferred to a job at the Caringbah Leisure Centre performing water safety, looking after equipment and grounds maintenance. He related in August 2006 he was stood down and put on workers compensation. He then undertook training as part of a rehabilitation program to become a heavy vehicle driver. Dr Endrey-Walder doubted the applicant could work as a heavy vehicle driver and ruled out physical work and recommended sedentary office based work. The doctor in coming to that view also considered the effects of left shoulder injury, which is not the subject of these proceedings.
Page 3 of this report is missing in the copy in the ARD. There is a full copy in the IGF reply[23]. The doctor sets out the applicnat’s complaints about his left knee and his examination findings. In the opinion section of the report the doctor stated his impression was that the valgus alignment had increased and there was objective evidence of very significant further wasting of the left thigh and calf. The doctor found instability in the ACL and MCL.
[23] IGF reply p 372.
In his report dated 9 July 2008 he apportions the permanent impairment of the left leg with one third to the 1979 injury and two thirds to the injuries between 30 June 1987 to 31 December 2001. In his subsequent report he assesses the whole person impairment (WPI) for injuries after 1 January 2002 at 10% WPI but says nine-tenths is due to the injuries before then.

Dr Davis

Dr Davis provided a medico-legal report for the applicant dated 28 October 2003[24]. He has a history of injuries to the left knee in 1979, 1990, 2 February 1991, 1995, 16 October 1995, 8 January 1996, and 9 September 2000. He noted the applicant ambulated with a slightly left sided antalgic gait, he bore his weight on the right side and had difficulty squatting. He had a valgus deformity of 10 degrees and visible and palpable bony deformity. Other examination findings are set out in his report. He opined that the 1979 injury had resulted in the requirement for the open meniscectomy which has resulted in subsequent degenerative arthritic changes in the lateral compartment of the knee and deformity. When assessing permanent impairment he attributed one half of the impairment in the left leg to the 1979 injury.
[24] ARD p 54.

Dr Drew Dixon

Dr Dixon provided a medico-legal report for the applicant dated 4 September 2017[25]. Dr Dixon takes a lengthy history about all of the injuries sustained by the applicant in the course of his employment with the respondent not confined to the left knee. He opines that the applicant is not fit to work as a professional ocean lifeguard and struggles to do light manual work such as home maintenance. Under the heading prognosis Dr Dixon refers to a number of physical difficulties faced by the applicant due to knee and ankle pain, low back pain and left shoulder brachalgia. Neck pain and stiffness also affects his ability to drive.
[25] ARD p 15 and self-insurer’s AALD 1 June 2022.
Dr Dixon deals with causation under the heading “diagnosis”. He finds the tear of lateral meniscus of the left knee resulted in a lateral meniscectomy with subsequent marked arthritis in the lateral compartment as well as patellofemoral arthritis in the left knee and medial compartment and marked joint space narrowing. Dr Dixon stated, in answer to a question about the disease provisions, the employment as a lifeguard was a substantial contributing factor to the aggravation etc of the disease in the left knee pain. However, notwithstanding this response I find that Dr Dixon did consider that one of the causative factors of the left knee condition was the tear of the meniscus, surgery and subsequent arthritis.

Dr Neil

Dr Neil is the treating orthopaedic surgeon who performed the left total knee replacement surgery on 2 October 2020[26]. He reported to the applicant’s general practitioner Dr Lewin on 21 Janaury 2020[27]. Dr Neil noted that the applicant had severe pain and instability in his left knee. He noted that he could walk for about 2km with a level gait, but the knee feels very unstable. The doctor records that the applicant has noticed progressive valgus deformity and has difficulty going down stairs. The doctor records his examination findings and the results of recent X-rays. He concluded that the applicant has “advanced post-traumatic osteoarthritis of the left knee, post open lateral meniscectomy 41 years ago”. He stated that the applicant needed an urgent total knee replacement to correct his deformity, relieve his pain and improve his function.
[26] ARD p 63.
[27] ARD p 61.

Dr Millons

Dr Millons has provided reports dated 18 March 2004[28], 4 February 2008[29], 30 June 2020[30] and 14 January 2021[31].
[28] ARD p 66 and self-insurer’s reply p 28.
[29] ARD p 75 and self-insurer’s reply p 43.
[30] Self-insurer’s reply p 72.
[31] Self-insurer’s reply p 86.
In his first report he has the history that the applicant thought it was in early 1979 he was running up an embankment and trod into a washed out drain and twisted his left knee. He was off work for six weeks and had surgery in the form of a lateral meniscectomy. Dr Millons notes he returned to work running garbage and in November 1979 he commenced work on the beach. He refers to the 1991 injury when in the rescue boat and a person fell on his left knee, which caused more pain in the knee at the time but no time off work. He advised Dr Millons that he underwent a lot of training on the beach which seemed to aggravate his knee, but he put up with it.
In the 2004 report the applicant’s current complaints were recorded such as pain in the left knee every day, clicking, occasional swelling, problems negotiating stairs, running is aggravating and knee stiffness after sitting or driving for a while. Dr Millons noted on examination there was restriction of movement in the left knee when compared to the right and movement was restricted by pain and stiffness. Dr Millons opined that the knee was now quite markedly valgus and mildly stiff and there was a suggestion of some collateral ligament laxity. The doctor postulated that in 1979 he may have also sustained some damage to the medial ligament.
Dr Millons refers to the subsequent incidents as minor and said when the person fell on him in the rescue boat it might have caused some posterior capsular problem as his knee was hyperextended at the time. However, he says that it not particularly evident now and the other incidents may have caused a temporary aggravation. Dr Millons says that the applicant has a disease in his left knee that was set in train after the incident in 1979. However, the doctor then says when the person fell on him in 1991 was a substantial aggravation of that degenerative condition. He recommended that the applicant avoid work that has excessive running, kneeling, squatting and working in awkward or confined spaces as such activities would stir up his left knee. The doctor also considered injuries to other body parts such as the shoulder and back which are not part of the claim in these proceedings.
In Dr Millons’ supplementary report in 2004 he assessed permanent impairment and opined that half would reflect the lateral meniscectomy in 1979 and half the normal activities of daily living and nature and conditions of his work playing on the gradually developing attritional change within the knee. He divided this up pre and post 30 June 1987.
In his 2008 report Dr Millons noted the left knee was becoming increasingly painful with swelling, stiffness and clicking and that it feels unstable. He limps after walking a kilometre and finds descending stairs difficult. He cannot run and walking on uneven terrain such as the beach is particularly aggravating. He cannot fully squat. Dr Millons found the left knee problems do seem to reflect the incident in 1979 with some input from the 1991 incident and the normal activities of daily living play a part in perpetuation of knee symptoms. He also says the nature and conditions of work as a lifeguard on the beach and the training involved in that job may have caused some day-to-day aggravation of the developing degenerative changes in the left knee. The doctor thought the applicant capable of some light driving work.
Dr Millons notes that the applicant was stood down in August 2006 and has not worked since then. The reason he was stood down was due to he was unfit for strenuous work involving the use of his left shoulder. He attributed the permanent impairment being half due to the 1979 surgery, half due to the nature and conditions of work and he suggested dividing this up prior to 30 June 1987 and one third of that would be from 1979 to 1987 and two thirds after 30 June 1987. He adds he doubts any more than one-tenth would reflect work from 1 January 2002 to March 2004 when he came off the beach and work since then was not contributory.
Dr Millons re-examined the applicant and in his report dated 30 June 2020 he notes due to Covid-19 the applicant could no longer do the corporate mini-bus driving work and received the job-keeper allowance[32]. In addition to the left knee, the doctor examined the other body parts injured at work, to which I have not referred as they are not part of this application. Dr Millons noted at that time the applicant was waiting to have a left knee replacement. He expressed the opinion that it is necessary surgery which did seem to flow form the original incident in 1979 and the aggravating effects of the nature and conditions of his work as a lifeguard thereafter.
[32] Self-insurer reply p 74.
In terms of his capacity to work, this is clouded by the fact that the doctor considers the many other injuries suffered by the applicant. Dr Millons states that the applicant is unfit to work as a lifeguard because of the loss of mobility and agility as a result of the left knee injury and also because of ongoing issues with the left shoulder and both ankles. However, Dr Millons adds that the applicant has done many jobs since he ceased working as a lifeguard and mini-bus driving “does not put too many undue demands on his lower limbs and is still within his capacity at this stage.” The doctor adds when he has had the knee replacement he needs to be reviewed at the six month post-surgery interval to give a clear indication of his work potential. He notes that he is 69 years of age and realistically the prospects of him doing more than a little light bus driving would seem to be unlikely.

In his report dated 14 January 2021 Dr Millons confirms he re-examined the applicant and at the time of the examination he was off work and in receipt of a job keeper allowance. The doctor noted that the applicant had been driving corporate mini-buses on a permanent casual basis, working some weeks eight hours per week, some weeks 10 hours per week but stood down due to Covid-19.
Dr Millons recorded that the surgery took place on 2 October 2020 in St Vincent’s Private Hospital followed by rehabilitation. Dr Millons states the left knee replacement has put his knee in a better alignment and relieved him of some symptoms although the applicant finds that the knee does still not feel completely right to him.
Dr Millons answers a series of questions posed to him finding that prior to 30 June 1985 the applicant had one injury to his left knee for which he underwent a lateral meniscectomy. He states that he appeared to have recovered from that and was back performing his normal duties after a few weeks. The doctor notes that the knee gradually deteriorated with the passage of time however the doctor finds “there is nothing to indicate that his employment duties prior to 30 June 1985 caused any significant incapacity”.
Dr Millons advises that since 1 July 1985 there have been a series of injuries including to his left knee, left shoulder, and both ankles which have significantly affected his work capacity. He agrees that the work-related orthopaedic injuries could be categorised as a disease process and was this subject of aggravation etc caused by the employment duties and or specific incident after 30 June 1985.

Determination

Applicant’s submissions

The applicant’s oral submissions can be summarised as follows:
(a) When considering the application of s 52 of the 1987 Act, the decisions of Rizk and McLennan provide authority for the interpretation that s 52(4) applies if the applicant establishes the injuries pre 30 June1985 have contributed to the subsequent incapacity.
(b)    There can be a finding of both the 1979 injury and a disease injury contributing to the incapacity.
(c)    The weight of medical opinion is that the 1979 injury caused a tear to the lateral meniscus which resulted in the open meniscectomy surgery in 1979 and that this has caused degenerative change to occur in the left knee. Attention was drawn to the following medical opinions:
(i)Dr Endrey-Walder in 2003 found the injury in 1979 significant and that thereafter he has significant reactive arthritic changes. In 2007 the doctor found the valgus alignment had increased and he considered a high tibial osteotomy was needed to re-align the joint. In 2008 the doctor refers to the 1979 injury and finds that it left the applicant with ongoing deformity of the left knee and a left total knee replacement was needed. The doctor considered the cause of left knee problem because he attributed one third to 1979 injury.
(ii)Dr Davis found that the 1979 injury had resulted in the requirement for the open meniscectomy which he stated has resulted in subsequent degenerative arthritic changes in the lateral compartment of the knee and deformity. In 2003 he attributed half of the impairment to the 1979 injury.
(iii)Dr Neil, while acknowledging the doctor does not give as much detail as the medico-legal doctors, it was submitted that he does relate the arthritis to post the 1979 injury.
(iv)Dr Dixon deals with causation under the heading “diagnosis”. He finds the tear of lateral meniscus of the left knee resulted in a lateral meniscectomy with subsequent marked arthritis in the lateral compartment as well as patellofemoral arthritis in the left knee and medial compartment and marked joint space narrowing. It was acknowledged that Dr Dixon stated in answer to a question about the disease provisions, the employment as a lifeguard was a substantial contributing factor to the aggravation etc of the disease in the left knee pain. However, it was submitted that the Commission cannot ignore Dr Dixon’s diagnosis and one of the causative factors of the left knee condition was the tear of the meniscus, surgery and subsequent arthritis.
(d)    Dr Millons’ opinion in his 2021 report has to be considered in the context of his earlier expressed opinions which can be summarised as follows:
(i)Dr Millons in 2004 found the applicant had “a markedly valgus left knee” and under the heading “opinion” the doctor referred to the 1979 left knee injury for which he had a lateral meniscectomy. Dr Millons added “he has probably gone on to develop some degenerate changes in the left knee”. In addition Dr Millons queries whether in the 1979 injury he also sustained damage to the medial ligament. The doctor also says the osteoarthritis was “set in train after the incident in 1979 when he tore his lateral meniscus.” Counsel submitted that Dr Millons in this report has an opinion which is completely consistent with that of the other medico-legal doctors. Dr Millons in 2004 attributed half of the permanent impairment in the left knee to the 1979 injury and half to the normal activities of daily living and work.
(ii)In his 2005 report Dr Millons expresses the opinion that the applicant “clearly sustained an injury to his left knee while running garbage in 1979. He came to a lateral meniscectomy. That would have led to the development of accelerated degenerate change within the knee joint…”[33].
(iii)In the 2005 report Dr Millons also considered that the nature and conditions of employment with the heavy training sessions may have caused some aggravation of the developing degenerate changes in the left knee and he is not fit to work as lifeguard on the beach[34].
(iv)In the report dated 4 February 2008 Dr Millons again attributes half of the permanent impairment to the 1979 meniscectomy.
(v)In Dr Millons report dated 30 June 2020 it was submitted, by this stage on examination of the applicant’s left knee, Dr Millons found valgus deformity was 25 degrees whereas before it was 15 degrees.[35] Attention was drawn to Dr Millons advice that in 2004 he mentioned the possibility of knee surgery and that he believed now the proposed knee replacement was important to re-align the knee. Dr Millons added that the surgery was necessary and did seem to flow from the original incident in 1979 and the aggravating effects of the nature and conditions of his work as a lifeguard thereafter. It was submitted that every doctor comes to same view, that what is causing his incapacity is the injury in 1979 and work thereafter.
(e)    The applicant submits the only report at odds with this proposition is Dr Millons’ report dated 4 January 2021[36]. It was submitted that Dr Millons seems to have done a complete about face when he expresses the opinion that “his incapacity for work since November 2017 is as a result of work related injuries that have occurred certainly since 1 July 1985.” It was submitted this is contrary to his earlier expressed opinions. In addition, the applicant submitted when Dr Millons says he recovered from the 1979 lateral meniscectomy, this is also at odds with the opinions in his earlier reports.
(f)    The applicant suggests the reason for Dr Millons having a different opinion is due to how he was instructed in the letter dated 4 January 2021. Counsel gave various examples of error in that letter. The self-insurer’s solicitor submitted that notwithstanding some date errors in the letter the questions posed to Dr Millons were correct. However, I note that Dr Millons refers to this letter and says, “I have outlined above the history of the injuries to the various parts of Mr Williams’ anatomy over his years as a lifeguard”. I note further that the 1979 injury occurred while he was working as a garbage collector. So it seems to me that Dr Millons was focused on the lifeguard work when answering these questions. However, the reason I accept the applicant’s submission that the opinions of Dr Millons in his 2021 should be rejected is because of the inconsistency with his earlier expressed opinions about the development of arthritis after the 1979 injury.
(g)    In terms of the evidence about incapacity, the applicant submitted that Dr Dixon’s report was “time pertinent” in that it is given in September 2017 and the claim for weeklies starts on 3 November 2017. It was submitted that Dr Dixon referred to the need for the knee replacement and that the applicant was not fit for any work involving prolonged standing walking and most he could do is bus driving on intermittent basis. Counsel noted Dr Dixon says the disease provisions apply but argues you cannot ignore his diagnosis and one of the causative factors was the tear of the meniscus and subsequent arthritis. It was submitted that in November 2017 there is evidence of substantial incapacity in the left knee which ultimately resulted in a total knee replacement.
(h)    Finally, Mr Dodd submitted that even though the applicant had incapacity since November 2017 from injuries to other body parts, including psychological injury, the legislative provisions in the 1987 Act do not include reductions being made on a discretionary basis unlike under the former s 40. It was submitted the applicant has incapacity due to his left knee injury both from the 1979 injury and aggravation of disease and incapacity from other sources does not operate to disentitle him to an award for weekly compensation.
[33] ARD p 81.
[34] ARD p 83.
[35] Self-insurer reply p 75.
[36] Self-insurer reply p 86.
The applicant’s written submissions have been referred to in the introduction part of these reasons.

IGF’s submissions

Mr Combe, counsel for IGF, submitted:
(a)    that the evidence supports the characterisation of the injury to the left knee as a disease and he relied on Dr Dixon’s report that work as a lifeguard was strenuous work that caused aggravation of disease in the left knee, and other body parts. However, as the applicant has submitted the fact that Dr Dixon has found a disease injury does not preclude the existence of a frank injury in 1979. As was submitted by the applicant the doctor did refer to this injury in his diagnosis.
(b)    The complying agreement dated 19 November 2008[37] refers to the date of injury as being “nature and conditions of employment”. It was submitted that the true characterisation of this type of injury is a disease. The agreement was for 12% loss of efficient use of the left leg and the medical reports relied on were Dr Endrey-Walder’s reports. Counsel submits that the applicant in this agreement did not characterise as anything other than disease process. I find that this agreement does not create an estoppel in these proceedings, and I accept the applicant’s submission that there can be both the 1979 frank injury and a disease injury.
[37] AALD 8 June 2022 p 1.
(c)    It was submitted that notwithstanding the opinions provided by doctors at a later time, Dr Endrey-Walder was of the opinion at the outset the left knee injury was a disease process. I do not accept this submission because Dr Endrey-Walder did find that the 1979 injury and the surgery, which should be borne in mind was an open meniscectomy, caused the arthritic process to develop in the left knee.
(d) It was argued that s 52 of the 1987 Act has effect because the date of injury of the disease injury is the date of the incapacity being November 2017. However, in my view this date cannot be correct. Section 16(1)(a)(i) of the 1987 Act provides if an injury is a disease injury the injury shall be deemed to have happened “at the time of the worker’s death or incapacity”. The present proceedings are for weekly compensation, and it is apparent the applicant had incapacity earlier than 3 November 2017. As the self-insurer states, it paid weekly compensation from 29 August 2006 until 2 November 2017. The only basis to pay weekly compensation is if there is incapacity so the deemed date of injury for a disease injury would have to be 29 August 2006. The evidence from the applicant is the work he performed from 2004 to 2006 did not aggravate his left knee. It appears that the first incapacity in relation to the disease injury would have been when he ceased work in August 2006. Nothing in s 16 provides that if incapacity has been compensated by the payment of weekly compensation that the deemed date of injury is to be regarded as the date referable to the claim for weekly compensation for which no payment has been made.
(e)    In relation to Dr Millons report in 2021, it was argued that the doctor had examined the applicant on multiple occasions, he had a clear history and so his opinion, that there was no incapacity due to event before 30 June 1985, is valid and should be accepted. Based on this evidence it was argued that this excludes IGF’s period of risk from 1979 to 1982. However, I have explained above why I do not place weight on the opinions expressed by Dr Millons in his 2021 report as the conclusions are inconsistent with his earlier expressed opinions. Also the doctor has not explained why his opinion has altered. Furthermore, I find his earlier opinion about the causation of the left knee condition to be consistent with the other medical opinions, that the 1979 injury was a significant cause of the arthritis in the left knee which has ultimately led to Dr Neil recommending and performing the left total knee replacement.
(f)    It was submitted in relation to s 33 of the 1987 Act that the Commission would not be satisfied there is incapacity from events from 1979 to 1982. In support of this submission reference was made to an earlier Application to Resolve a Dispute which is in the IGF reply. Counsel submitted that claim included injuries to multiple body parts, but it does not include an injury in 1980. It was also submitted that it is significant that Dr Dixon when considering incapacity refers to the injuries to multiple injuries and opines the applicant was not fit to return to work as a lifeguard. It was submitted that the predominant cause of the incapacity seems to be other than the left knee. It was argued that the causative factor of incapacity was substantially the other body parts that were injured, as well as the psychological injury. Counsel later in his submissions addressed the applicant’s statements referring in detail to the other body parts injured.
(g)    While there is evidence of incapacity due to other body parts and the psychological injury, I find this does not preclude there being incapacity in relation to the left knee in 2017, particularly bearing in mind there is medical evidence at that time from Dr Dixon that the applicant needed a total knee replacement.
(h)    Counsel submitted the facts that the applicant successfully returned to employment after the lateral meniscectomy and that he could perform work as a lifeguard later in 1979 and onwards do not support the argument that the 1979 caused incapacity for employment in the left knee. Counsel referred to the applicant’s statements and submitted the fact that he could perform the lifeguard tests from 1979 to 2001 indicates that he could not have been carrying an incapacity from the 1979 injury.
(i)    However, I find this type of analysis overlooks the medical opinion that finds the injury and operation did set in train the development of arthritis. In Kooragang Cement Pty Ltd v Bates[38] Kirby P (as he then was) stated at page 462, with Sheller and Powel JJA agreeing:
[38] (1994) 35 NSWLR 452, Kooragang.
"It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act."
I find that the causative explanation of incapacity was not broken because the applicant also suffered a disease injury, which was an aggravation etc of the disease process that was caused by the 1979 injury and the operative procedure of the open lateral meniscectomy. Dr Neil performed the total knee replacement because of the “advanced post-traumatic osteoarthritis of the left knee, post open lateral meniscectomy 41 years ago”.
It also needs to be borne in mind that when Dr Endrey-Walder first examined the applicant he found the bony contour of the left knee was abnormal and there was a significant degree of valgus alignment of the knee. Dr Endrey-Walder found the 1979 injury to be significant and he predicted the applicant would need a total knee replacement.
(j) IGF submitted if the Commission finds there were separate injuries then there is a need to make an apportionment under s 22 of the 1987 Act. It was submitted that the 1979 injury only resulted in 10 weeks off work and the fact is that the applicant had injuries to other body parts and the psychological injury which caused incapacity. It was submitted that notwithstanding the 1979 injury the applicant was able to keep working performing strenuous work. It was argued that any apportionment of the incapacity to the 1979 injury, if made, should be minimal because of these factors. Counsel also relied upon the other injuries involving the left knee, some 10 separate injuries and most of these occurred in the periods of risk of the other insurers. Of the 10 events, five occur when the respondent was self-insured.
(k)    Counsel referred to the decision in State of New South Wales v Roberts Concrete Specialists Pty Ltd[39] where the President applied Sutherland Shire Council v Baltica General Insurance Co Ltd and Ors[40]. At [127] of Roberts the President stated
“In Baltica it was held that, if incapacity is found to have resulted from more than one injury then ‘the apportionment exercise will need to be carried out’. What logically follows is the application of the relevant test under s22A(1) of the 1987 Act.”
(l) It was submitted by IGF that if the Commission finds a frank injury in 1979 the apportionment to that injury should be no more than 10%, but the primary finding is that it is a disease which has been aggravated by employment and the deemed date of injury is November 2017 and section 52 applies.
[39] 2020 NSWWCCPD 20, Roberts.
[40] (1996) 12 NSWCCR 716, Baltica.

GIO’s submissions

Mr Grant made oral submissions at the arbitration hearing. No written submissions were filed on behalf of GIO subsequently. He submitted that this is a classic disease case and as far as they apply to the GIO he adopts the written submissions of the self-insurer dated 9 June 2022.
It was submitted that the applicant had osteoarthritis before his client came on risk on 1 July 1982 and he had osteoarthritis after its risk ceased on 30 June 1985. It was noted that the applicant worked as a lifeguard before and after this period of risk.
The injury to the left knee alleged to have occurred in the period was on 8 March 1983 there is a paucity of information as to what that injury involved. It was submitted for the purpose of s 22, the lack of evidence about the 1983 injury, and the overwhelming evidence is the 1979 injury led to the applicant undergoing the lateral meniscectomy and this set in train the arthritis. As a result, it was submitted that IGF should carry a large share of the apportionment.

Allianz Australia Limited’s submissions

Mr Baker made oral submissions on behalf of Allianz Australia Limited. No subsequent written submissions were made. He submitted the only injury in his insurer’s period of risk was on 21 March 1987 and the applicant took no time off work and the insurer paid $185 for physiotherapy treatment. It was submitted that the applicant was able to continue to perform his work as a lifeguard after that injury.
This issue is how significant was this injury in 1987. It was submitted the s 66 benefits that were previously sought, and the letter of demand made did not mention the injury in 1987. The complying agreement dated 19 November 2008 made no mention of injury in his insurer’s period of risk. It was also submitted that there is no medical evidence to suggest this 1987 injury played any role at all. Mr Baker submitted because of these facts his client should be found to have no liability in relation to the claim for weekly compensation.

EML’s submissions

Mr Barter made oral submissions on behalf of EML, whose period of risk is 30 June 1987 to 30 September 1988. No written submissions were subsequently made. The only injury pleaded in EML’s period of risk is that on 30 June 1988. It was submitted that there is no evidence to support that injury occurred and, if did, it is alleged there was a failure to notify the insurer at the time and was only notified to the GIO as stated in the pleadings.
Counsel referred to [330] to [407] of the applicant’s statement and submitted that there is no reference to this left knee injury. It was also submitted that there is no medical evidence implicating this alleged injury. It was argued if there was a contribution for nature and conditions in that period it would beat the highest 4% based on the pleadings and it was submitted this would be de minimus. It was submitted that due to the lack of evidence there should be no apportionment made in relation to EML’s period of risk.

Self -insurer’s submissions

Mr Harris submitted that the starting point is s 33 of the 1987 Act which refers to if there is total or partial incapacity for work resulting from an injury, the compensation payable by the employer to the injured worker shall include payment during the incapacity. It was argued that the claim made by the applicant in these proceedings can only succeed if the incapacity results from injury prior to 4.00pm on 30 June 1985 when s 52 of the 1987 Act commenced. It was submitted that the self-insurer has paid weekly compensation to 2 November 2017, being the relevant retirement age of the applicant and there can be no entitlement to weekly compensation failing a finding of incapacity resulting from injury before 30 June 1985. These submissions about these legislative provisions are not controversial.
Mr Harris also relied upon Mr Combe’s submissions excepting as to apportionment. I have explained above why I have not accepted those submissions.
In the self-insurer’s written submissions dated 9 June 2022, and oral submissions, it is argued that the evidence supports a finding that the applicant suffers a disease injury. It refers to the opinion of Dr Dixon in his report dated 4 September 2017 that the applicant’s employment with the respondent as a lifeguard is the type of employment which was a substantial contributing factor to the aggravation etc of his left knee pain. It is submitted that Dr Dixon did not relate the left knee injury or any resultant incapacity to any specific incident including prior to 4.00pm on 30 June 1985.
I do not accept the full tenor of this submission. It overlooks the evidence of Dr Neil who found the applicant has “advanced post-traumatic osteoarthritis of the left knee, post open lateral meniscectomy 41 years ago”. I find that Dr Neil is relating the development of the osteoarthritis in the left knee to the fact that the applicant had an open lateral meniscectomy as a result of the 1979 injury. In the case of Rail Services Australia V Dimovski & Anor[41] at [68] Hodgson JA stated:
“Section 16 applies only if the injury “consists in” the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury “consists in” the aggravation of a disease”.
[41] [2004] NSWCA 267, Dimovski.
Dr Endrey-Walder considered the 1979 injury as significant, and he attributes the problems in the left knee to the 1979 injury and to the subsequent aggravations and nature and conditions of his work.
Dr Davis expressed the opinion that the 1979 injury had resulted in the requirement for the open meniscectomy which he stated has resulted in subsequent degenerative arthritic changes in the lateral compartment of the knee and deformity. In 2003 he attributed half of the impairment to the 1979 injury.
Dr Millons in his 2004 report found that the applicant has a disease in his left knee that was set in train after the incident in 1979.
The injury in 1979 clearly was a “frank” injury. I find this aspect of Dr Millons’ opinion does support the conclusion that the 1979 injury and the performing of the open lateral meniscectomy resulted in or caused degenerative changes to develop in the applicant’s left knee.
In the applicant’s counsel’s oral submissions he argued that the medical evidence is resoundingly consistent that the 1979 injury caused arthritis to left knee. For the reasons expressed above I accept this submission. Mr Dodd referred to the evidence from Dr Endrey-Walder, Dr Davis and the earlier reports from Dr Millons to support this submission. He also made the point that in this case there can be found that the applicant’s left knee condition can be due to both the 1979 injury and a disease.
I accept and find that there was further injury caused to the left knee that can be regarding as aggravation of disease due to the work over many years as a lifeguard. The applicant has provided details in his statements of the rigorous training requirements in that role. The applicant has pleaded both a nature and conditions injury and disease injury, in the context of this case I find they are the same and it is more appropriate to consider this an aggravation of disease type injury.
Thereafter, the applicant was involved in a series of frank incidents on 14 January 1980, 8 March 1983, 21 March 1987, January 1990, 16 October 1995, 10 January 1996 and 9 September 2000. However, I am not persuaded that the evidence supports a finding that these were anything other than temporary aggravations. While the applicant had some treatment after some of these incidents he did not take time off work. I accept the submissions that these incidents were self-limiting and there is a paucity of medical evidence relating to these injuries. Dr Millons regarded these other incidents as minor and stated they may have caused some temporary aggravation of the underlying attritional changes.
The other frank incident in 1991 when someone fell on the applicant’s hyperextended knee did seem more severe. Dr Millons in his 2004 report says this injury may have given the applicant some posterior capsular problems but they were not particularly evident at the time of his examination, although later in the same report the doctor refers to this injury as having some significance, which seems inconsistent. In any event, this injury occurred in the self-insurer’s period of risk. I am not satisfied that this injury caused anything more than a temporary aggravation based upon Dr Millons comment that posterior capsular problems were not evident when he examined the applicant.
Mr Harris referred to the draft application for medical assessment and he submits that it is evident from that documents that the applicant intends to seek a WPI assessment for multiple body parts, not just the left knee, and that he is doing so on the basis of disease. I consider this document has no bearing on the decision I am required to make in these proceedings. It maybe that application may or may not be pressed in its present form, but that is a matter to be considered when that application is dealt with by the Commission. Mr Harris was referring to this document and the complying agreements to illustrate his argument that the applicant’s solicitors have in the past considered the matter as a disease. I find even if they had that is not determinative of the issues I need to find. The entirety of medical evidence before the Commission has been considered and for the reasons explained above I have found the injury in 1979 and the related surgery caused the applicant to suffer from arthritic changes in the left knee. It is evident from Dr Neil’s opinion that this injury caused or materially contributed to the need for the total knee replacement, and I find incapacity for employment in the period claimed has been established by the applicant.
I accept Mr Dodd’s submission in reply that notwithstanding the applicant had incapacity for employment in this period due to his other injuries, that does not preclude a finding of incapacity in relation to his left knee, noting there is no discretionary provision in the legislation as existed under the former section 40. Dr Dixon in September 2017, close in time to 3 November 2017, did find the applicant was not able to work as a professional lifeguard and part of that incapacity did relate to the condition in the applicant’s left knee at that time.
While Mr Harris submitted that there should be an award for the respondent, he submitted in the event that the Commission found injury before 30 June 1985 there would need to be an apportionment under s 22 of the 1987 Act and there is evidence that the 1979 injury was of some significance.
In response to Mr Harris’ submission that there is no medical evidence that the incapacity from 3 November 2017 is a result of pre 30 June 1985 injury, Mr Dodd relied upon Dr Neil’s opinion which related the need for the total knee replacement to the trauma of the 1979 injury and meniscectomy. He also relied on Dr Millons 2020 and earlier reports.
Having found incapacity due to injuries before 30 June 1985 and thereafter, I find s 52(4) applies and the applicant is entitled to weekly compensation notwithstanding he has reached retirement age, albeit limited by s 39 of the 1987 Act.
In relation to apportionment I consider it is just and equitable to assess the same on a 50% basis to the 1979 injury and 50% to the disease injury. I do not accept Mr Combe’s submission that the 1979 injury should be regarded as minor because as I have found it caused the degenerative process in the left knee and Dr Neil considered the open meniscectomy created the need for the total knee replacement surgery. However, it is evident that the aggravation of the disease over many years of the applicant working as a lifeguard has also materially contributed to the incapacity experienced by the applicant. I consider a 50/50 apportionment is the just and equitable apportionment and I find that if I were only to consider the time each insurer was on risk would not reflect the seriousness of the 1979 injury. I note in several of his reports Dr Millons attributed half of the permanent impairment to the 1979 injury, as did Dr Davis.
In summary I find the following:
(a)    The applicant sustained a personal injury to his left knee on 10 June 1979 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017.
(b) The applicant also sustained an injury under s 4(b)(ii) of the 1987 Act as a result of the aggravation of the disease in the left knee, with the deemed date of injury of 29 August 2006, which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017.
(c)    The respondent is liable to pay the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week.
(d) Pursuant to s 22 of the 1987 Act there is to be an apportionment of the respondent’s liability in the amount of 50% in respect of the injury on 10 June 1979 and 50% in respect of the disease injury.
(e) Pursuant to s 22A (5)(b) of the 1987 Act the respondent in the interest of the self-insurer is to pay to the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week.
(f) Pursuant to s 22A(4) the respondent in the interests of IGF is to pay to the self-insurer 50% of the award of weekly compensation.
(g)    There is to be an award for the respondent in the interests of its insurers AAI Limited t/as GIO, Allianz Australia Ltd and Employers Mutual Limited.

[2022] NSWPIC 498

7 September 2022