Woods v Shirdi Sai Om Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woods v Shirdi Sai Om Pty Ltd [2025] NSWPIC 520
APPLICANT:	Wayne Woods
RESPONDENT:	Shirdi Sai Om Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	30 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation; accepted injury to right knee and consequential condition of digestive system; respondent disputed consequential conditions of right knee and lumbar spine; scant records of general practitioner; no report from general practitioner; Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes considered; Held – award for respondent for claim for consequential condition of lumbar spine; matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to right knee, digestive system, and left knee.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent for the claim for consequential condition of the lumbar spine. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 29 October 2018. Body systems/parts: right lower extremity (right knee); left lower extremity (left knee), and digestive system. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Lodge Additional Documents dated 7 August 2025 and attached documents, and (d) Application to Lodge Additional Documents dated 9 September 2025 and attached document. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Wayne Woods (Mr Woods), was employed by the respondent, Shirdi Sai Om Pty Ltd, as a pick and packer.
On 29 October 2018, Mr Woods was moving a mattress when he injured his right knee. He has suffered a consequential condition of his digestive system. He also claims to have suffered consequential conditions of his left knee and lumbar spine.
By letter dated 29 February 2024, the applicant’s solicitors made on his behalf a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 24% whole person impairment (WPI) as a result of injury to the right lower extremity (knee), lumbar spine, left lower extremity (knee), and digestive system.
On 14 August 2024, the respondent’s insurer, EML NSW Ltd (EML), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
EML advised the applicant that liability was accepted for injury to his right knee and upper digestive tract. Liability was disputed for consequential conditions of the applicant’s lumbar spine and left knee.
EML disputed that the applicant was entitled to compensation pursuant to s 66 of the 1987 Act, because his accepted injury had not resulted in more than 10% permanent impairment.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 May 2025.
The applicant claimed that on 29 October 2018, he twisted his right knee while moving a mattress. As a result, he suffered injury to his right knee. He suffered a consequential injury/condition to his left knee and lumbar spine due to overusing/overcompensating as well as prolonged altered gait. He experienced significant weight gain due to inability to exercise and complete daily activities. As a result of his right knee injury and weight gain, the applicant suffered a consequential gastroenterological injury/condition.
The applicant claimed that, in the alternative to a frank injury, he suffered an aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition in his right knee. As a result of his right knee injury and subsequent overcompensation, the applicant suffered a consequential aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition in his left knee and lower back.
The applicant claimed the sum of $65,156.54 in respect of 24% WPI as a result of injury to his right lower extremity, left lower extremity, lumbar spine and digestive system.
The respondent lodged its Reply on 11 June 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained consequential conditions of his lumbar spine and left knee as a result of the accepted injury to his right knee, and
(b) the permanent impairment that results from the injury/consequential condition/s, which is to be assessed by a Medical Assessor/s.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the MS Teams platform on
8 September 2025. Mr McEnaney of counsel, instructed by Mr Malai, appeared for the applicant, who was present. Mr Stiles of counsel, instructed by Ms Gabriel, appeared for the respondent. Mr Bain of EML also attended and was excused after the conciliation phase. He remained available to provide instructions had they been required.
Mr McEnaney advised that the applicant had obtained a supplementary report, dated
4 July 2025, from Dr Anthony Greenberg. Dr Greenberg has corrected a typographical error in his original report, which referred to the applicant’s left knee, rather than his right knee. The report is otherwise identical to Dr Greenberg’s original report.
A copy of Dr Greenberg’s supplementary report was provided to Mr Stiles, and he was instructed that the respondent did not object to its admission.
The applicant was directed to lodge an Application to Lodge Additional Documents, attaching Dr Greenberg’s supplementary report. The applicant complied with that direction.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 7 August 2025 and attached documents, lodged by the respondent, and
(d)    Application to Lodge Additional Documents dated 9 September 2025 and attached document, lodged by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Wayne Woods

Mr Woods’ statement is dated 21 October 2024.
On 29 October 2018, he was moving a mattress, which was quite heavy, to load it onto a forklift, when he twisted his right knee. He felt a click and immediate pain. He rested briefly and tried to continue working, but the pain did not settle and his right knee became increasingly painful and swollen.
On 3 December 2018, he was reviewed by Dr Frederick Hoe. Dr Hoe addressed that a main problem was his weight. Dr Hoe did not believe treatment such as arthroscopic surgery would assist and [may] even accelerate his degenerative change.
Dr Hoe recommended weight loss surgery to enable him to lose a significant amount of weight and help delay the need for surgery to his right knee.
He gained weight, from being 135kg to 169kg, due to being restricted to exercise and complete daily activities, as his knee was in excruciating pain. He struggled to find motivation to lose weight, as the pain fluctuated throughout the day, and caused him to feel helpless.
Between December 2019 and December 2020, he visited Dr Kyaw Myint Malia (general practitioner (GP)) on numerous occasions for consultations, pathology, and general examinations.
He tried continuously to lose weight so he may have bariatric surgery. He managed to get his weight down to 105kg, which made him feel a lot better. However, over time the pain in his right knee increased excessively and he also experienced pain in his lower back. This restricts his ability to complete tasks and his knees and back create difficulties.
On 7 December 2020, he underwent a lap sleeve gastrectomy at Westmead Private Hospital with Dr John Leyden.
He felt better in general after the surgery, but his knees and back cause great troubles and difficulties, which make him frustrated. The pain is sometimes so severe that his right leg gives way, causing numerous falls. The pain in his back is a sharp pain. He tends to lose balance easily and lacks stability.
Between November [2022] and May 2023, he completed treatment such as physiotherapy and analgesics. The symptoms post-bariatric surgery have not improved, which continues to place limitations on his ability to recover. As his symptoms are increasingly painful, he has not made any further improvement in his knees and back.
He disagreed with Dr Anthony Smith’s conclusion as he “was not possessing” any symptoms before the injury in October 2018 and was not suffering from osteoarthritis.
He sustained his right knee injury at work and has noted that as a result of the treatment, limping, and change in his walking, posturing [sic], daily tasks, sitting, and weightbearing, he has sustained injury/conditions to his lower back and left knee.
He was not suffering or presenting symptoms relating to his [left] knee and lumbar spine prior to his injury. The symptoms only developed after his injury, with the pain exceeding [sic] over time.
When walking, his right knee generally has a niggling sensation, or he sometimes experiences pain in the mornings. Sometimes certain activities or tasks can change the pain throughout the day. It can consist of a sharp pain or jelly like feeling, and his knee will spontaneously give way. He has fallen off a ladder about four times, due to his knees giving way. He cannot run as he does not trust himself alone with his legs. He cannot complete long drives as after a while he experiences pins and needles, needing to pull over.
The pain began in his lumbar spine and left knee since limping from his right knee injury. The pain typically struck through and increased since he had his injury. Due to being restricted to move [sic] he was favouring his knee for a while due to sitting on the couch.
Prior to his injury he enjoyed rock fishing and playing football. He used to train football but has stopped. He can no longer kick the ball around with his grandchildren or play with them. He cannot trust walking with them for a long period as his next movements are unpredictable. He can no longer undertake these activities because of the varied pain he experiences.
Prior to his injury he used to perform many of the yard/garden duties. He can no longer undertake them because of the pain in his back. Instead, he uses a ride on mower, as they live on 276 acres, most of which is native bushland. He sometimes experiences discomfort when mowing.
He can still cook and clean, as they live in a cabin. His partner does the majority of the cleaning but if needed he can assist with cooking and cleaning. His only restriction is that he cannot stand for a long period, due to discomfort and numbing feeling, and the lack of reliability on his leg and lower back.

Evidence of Vera Pinto

Ms Pinto is the applicant’s partner. Her statement is dated 15 April 2024.
She has been in a relationship with Mr Woods for over 20 years. She has lived with him during the entire course of his employment with the respondent.
On the date of the injury, the applicant complained about pain to his right knee.
Over the following weeks, she watched as the applicant limped as he walked, attempting to place as little pressure as possible on his right knee, because it would “give in otherwise.” This has occurred on countless occasions.
Eventually, the applicant began complaining of left knee pain “he started to experience because of this.” He had gained considerable weight, over 50kg, since the injury, and was placing his entire body weight on his left side.
She recalls the applicant complaining about his back pain almost daily. At the time of the injury and immediately after, his priority was to get treatment for his knees [sic] as he was in excruciating pain, could barely walk, and was breathless after a few steps. His legs would swell an abnormal amount, and he would be in extreme discomfort. She recalls him complaining about the back pain as his limping worsened.
The applicant is unable to do the tasks he could do before the injury. He is unable to assist her with domestic duties. He is unable to do the yard/garden duties. She does all the laundry, cooking, and general cleaning, when he used to be able to help.
The applicant’s right knee injury, and subsequent discomfort and ache he experienced in his left knee and back, affect his life on a day-to-day basis. On the rare occasions he attempts to assist her with domestic duties, he is unable to do so safely.
She does not believe the applicant had any back pain until his work injury, as it was not something he ever complained about before the incident.
The applicant cannot do any activity that requires him to put pressure on his knees and back. He used to enjoy working on their family cars. He is unable to do what he loved as his knees and back suffer.
The applicant is not the type that complains. He used to enjoy spending his time outdoors, keeping active on every occasion possible. He used to enjoy playing football with his grandchildren, and is no longer able to, as he can no longer rely on his body.
The applicant has always been a hard worker, familiar with labour intensive work, having done this all his life, and persevered despite the difficulties his duties often posed, but the injury has changed him.
It is quite heartbreaking to see the applicant in such pain and vulnerability. He has repeatedly expressed the daily pains he lives with and how severely this has affected him. He often reflects on the injury and reminisces on the quality of his life before.

Medical evidence

Seven Hills Health Centre

I do not intend to refer to every entry in the records of the practice.
On 4 September 2008, Dr Malia recorded that the applicant was requesting
anti-inflammatories for back pain in [sic] 8 May 2008.
On 15 February 2011, Dr Malia recorded back ache, “MC 4d” (assumed to mean a medical certificate was issued for four days off work, noting the consultation was on a Tuesday).
On 19 February 2011, Dr Malia recorded that a CT scan of the lumbar spine was requested.
On 21 February 2011, Dr Malia recorded “mc L5-S1 narrowing MC 4 days.”
On 24 February 2011, Dr Malia recorded “MC 1d clear for work. Back ache improved.”
On 12 May 2015, Dr Malia recorded “Low back ache after fall – carrying a glass a brach [sic] hit him.” Panadeine Forte was prescribed and no investigations were arranged.
On 3 May 2018, Dr Malia recorded a history that a mattress fell on the applicant’s right knee from the lateral side three weeks ago. There was pain and swelling on the medial aspect of the knee along the joint line. “? medial cartilage/ligament injury suspected.” MRI of the right knee was requested.
On 29 October 2018, Dr Malia recorded MRI of the right knee was requested. The applicant had a history of an injury to the right knee six months ago. There was a twisting injury again yesterday causing severe pain on the medial joint line. “? Meniscal injury.”
On 2 November 2018, Dr Malia recorded “Med Cartg torn on MRTI” (assumed to mean medial cartilage torn on MRI). “Will need intervention.”
On 12 November 2018, Dr Malia referred the applicant to Dr Hoe.
On 7 December 2018, Dr Malia recorded a conference with the applicant’s rehabilitation provider. He was awaiting Dr Hoe’s report. The applicant may need physiotherapy.
On 1 July 2019, Dr Malia recorded that X-ray of the applicant’s left knee had been requested, “? OA” (osteoarthritis).
On 11 July 2019, Dr Malia recorded that MRI of the applicant’s left knee was requested – “R Knee was injured at work; compensatory injury to Left Knee Evaluation.” MRI of the applicant’s lumbar spine was also requested – “Severe disc degeneration L3-L4. Re-evaluation.”
On 28 September 2021, Dr Malia recorded back ache.
On 7 February 2022, Dr Malia recorded that X-ray of both knees had been requested- “R Knee meniscal injury and wear of Left Knee.”
The above are the only references I was able to find to the applicant’s lumbar spine or left knee conditions.
None of the numerous certificates of capacity (COCs) issued by Dr Malia (at least those that are legible) refers to either the applicant’s left knee or lumbar spine. Some do refer to the gastric sleeve operation. They appear to have altered little over a period of several years.

Dr Frederick Hoe – hip and knee surgeon

Dr Hoe reported to Dr Malia on 3 December 2018.
Dr Hoe recorded a history of a twisting injury to the applicant’s right knee on
29 October 2018. The applicant felt a click and immediate pain. He could not walk.
The applicant’s knee had since improved slightly, although he still experienced a constant throb and sharp pain medially when he tried to pivot on that leg. The pain was worse at night.
The applicant had tried to remain at work, performing administrative duties, but there was a fair bit of stair climbing involved, which aggravated the knee pain. There were no suitable duties at the moment, so the applicant was not working. He previously weighed 170kg but was now approximately 140kg.
Dr Hoe noted the applicant was significantly overweight. He walked with a slight limp. MRI scans revealed a tear of the medial meniscus, as well as medial compartment wear.
The applicant’s main problem was his weight. At his current weight, Dr Hoe did not believe treatment such as arthroscopic surgery would help him. It may even accelerate his degenerative change.
Dr Hoe opined that the applicant would benefit from significant weight loss, but believed he would be unable to achieve this, as he was unable to exercise. The applicant should seriously consider weight loss surgery, which would help delay the need for surgery, such as knee replacement, to the right knee in the long term.
Dr Hoe next reported to Dr Malia on 7 March 2022.
The applicant had had gastric sleeve surgery, and his weight fluctuated between 95kg and 100kg. He had not returned to work.
The applicant complained of medial sided knee pain, and giving way at unpredictable times, which almost made him fall to the ground. His walking was a lot better since the weight loss, but it still niggled. It hurt when he was driving for long periods. Any sideways and pivoting movements caused sharp pain on the medial side.
On examination, the applicant walked with a slight limp. There was tenderness along the medial joint line. There was no effusion. McMurray’s test was positive for medial meniscal tear. Ligaments were intact. Range of motion was 0° to 110°.
The X-rays showed 10% loss of medial joint space.
Dr Hoe opined that the applicant may have a medial meniscal tear that may be amenable to arthroscopic debridement. He had requested an MRI scan to see if this was possible.
Dr Hoe last reported to Dr Malia on 5 October 2022, having reviewed the applicant.
The applicant said his knee was not too bad. He did not get severe pain, only discomfort when he was walking. However, what did bother him was that the knee occasionally gave way with pivoting movements while walking, as well as when coming down a step. This giving way was associated with severe pain. The applicant was still not working.

On examination, the applicant was about 105kg. There was no significant effusion. The applicant walked without a significant limp. There was no localised tenderness. Range of motion was close to normal. McMurray’s test reproduced slight medial sided knee pain. The main finding on MRI was a horizontal tear of the medial meniscus.
Dr Hoe opined that overall, the applicant’s condition was stable. He did not believe the applicant required surgery at the moment.

Dr James G Bodel – orthopaedic surgeon

Dr Bodel was qualified by the applicant and reported first on 12 December 2019.
Dr Bodel summarised the applicant’s injuries as being to the right knee, the lower part of the back, and the left knee.
Dr Bodel obtained a consistent history of the injury and the applicant’s treatment. The applicant had been advised to consider bariatric surgery because of rapid weight gain. He had gone from 135kg to 169kg. He was awaiting approval for that surgery.
The applicant was still employed on light duties. He was not allowed to lift more than 15kg. He had been told there was no modified work available.
Dr Bodel recorded that the applicant had improved. He had always been of solid build but had gained considerable weight because of the injury and his relative inactivity.
The applicant complained of pain over the anteromedial aspect of the right knee. He was wearing a knee brace. He was having physiotherapy. He had anteromedial knee pain of the left knee and intermittent low back pain.
On examination, Dr Bodel recorded that the applicant walked with a right-sided limp.
The applicant had mild tenderness at the lumbosacral junction, but no guarding. He reached forward in flexion with his hands to the knees. There was backache at this point, and also on extension, and a slight restriction of lateral bending to both sides. There was no definite sign of asymmetry of movement.
The applicant had restricted range of movement in both knees. The ligaments were stable, but there was tenderness over the medial joint line in each knee. There was no neurological abnormality in the lower limbs.
Dr Bodel opined that as a result of a twisting injury to his right knee on 29 October 2018, the applicant had suffered a tear of the medial meniscus and an aggravation of some minor degenerative change in the medial compartment of the knee. He had developed similar symptoms in the left knee, and also some backache.
Dr Bodel diagnosed a tear of the medial meniscus in the right knee and consequential injury involving the left knee and the back.
Dr Bodel opined that the applicant had in part a disease process, which was early degenerative change to both knees, and mechanical backache associated with degenerative disc disease. Work had caused aggravation, acceleration, exacerbation and deterioration to that disease process. The applicant’s BCD was also a significant factor.
It was too early to assess WPI as the applicant needed further treatment, which could include bariatric surgery and then arthroscopy.
Dr Bodel next reported on 9 February 2024.
Dr Bodel summarised the applicant’s injuries as injury to the right knee, primarily on
29 October 2018, and consequential injury to the lower part of the back and the left knee.
The applicant had undergone bariatric surgery on 20 December 2020. His weight was down from 169kg to 105kg, and he felt a lot better.
The applicant went back to see Dr Hoe after getting his weight down and Dr Hoe did not offer to do the surgery. Over time, the applicant had developed increasing right knee pain (it is assumed Dr Bodel meant left knee pain) and lower back pain because of abnormal gait pattern for that prolonged period. His knees and back were still troublesome.
The applicant’s right knee gave way on him, and he had had a number of falls. He still had a sharp pain in the anteromedial aspect of the right knee, and also the left knee, and backache in the lower back.
On examination, Dr Bodel recorded that the applicant walked with a right-sided limp. His clinical findings were mostly the same as when Mr Woods was last seen. He still complained of discomfort at the lower part of the back on the right side, and guarding in that area. The applicant had some asymmetry of movement reaching, with a restricted range of lateral bending to the left. Dr Bodel observed a restricted range of knee movement.
Dr Bodel diagnosed torn medial meniscus in the right knee, and consequential aggravation, acceleration, exacerbation and deterioration to the disease process, back pain of degenerative disc disease, and probable meniscal pathology in the left knee.
The applicant’s prognosis was that the meniscal pathology and degenerative change in both knees would deteriorate over time, and within the next 7 to 10 years he would need to consider replacement of both knees.
Dr Bodel assessed the applicant’s WPI as 15% in respect of injuries to his lumbar spine, right lower extremity (knee), and left lower extremity (knee). He noted that this impairment would need to be combined with the assessment in respect of the bariatric surgery.

Dr Anthony Smith – orthopaedic surgeon

Dr Smith was qualified by the respondent and reported first on 17 November 2022.
Dr Smith recorded that the applicant was moving a mattress from a truck when he twisted his right knee. He attempted light duties, but the pain continued. He had last worked in November 2018.
Dr Smith noted the MRI report of the applicant’s left knee dated 7 August 2019. There was no fracture. The ligaments were intact. There was a small oblique tear in the posterior horn medial meniscus, with no underlying reactive bony oedema. There was an intact articular cartilage. There was extensive inflammatory/oedema in the subcutaneous tissues in the pre-patellar area, medially and laterally.
On examination, Dr Smith noted the applicant was overweight. There was pitting oedema in both legs, consequent to cardiac problems. The applicant’s left knee had no hyperextension and flexed to 100°. There was crepitus throughout the range of movement in the left leg, which was stable. The right knee had 5° of fixed flexion and flexed to 95°. The right knee was stable. McMurray’s test was normal.
Dr Smith opined that the applicant had bilateral knee arthritis, an obesity problem, and cardiac disease. The applicant appeared to have aggravated his arthritic right knee on two occasions, the last being 29 October 2018. He continued with ongoing symptoms in the right knee with a variety of different activities of weight-bearing.
Dr Smith further opined that the meniscal tear seen in the MRI of 7 August 2019 was part of the osteoarthritic process. McMurray’s test was negative; and was negative when the applicant saw Dr Mitchell (whose report is not in evidence, but which Dr Smith has referred to as being dated 14 August 2019), so in Dr Smith’s opinion it was not causing any symptoms. The applicant’s symptoms emanated from his osteoarthritis.
In Dr Smith’s opinion, none of the applicant’s impairment in either knee was a consequence of his employment. He assessed 4% WPI with respect to the left knee, and 8% WPI with respect to the right knee.
Dr Smith opined that there was no injury to the applicant’s left knee. The aggravation to his right knee osteoarthritis that occurred on 29 October 2018 would have resolved after three months at the most, with or without treatment. “More likely than not after a day or so.” The applicant was continuing to exacerbate his arthritic knee from time to time with activities. They were separate exacerbations/aggravations.
Dr Smith next reported on 31 May 2024, having re-examined Mr Woods.
The applicant had had no real improvement since he last saw Dr Smith. He had had a lot of physiotherapy and still had not had any treatment [sic]. His right knee gave way from time to time. There was aching in his left knee. Cold weather made it worse. There was low back pain and aching.
On examination, the applicant weighed 115kg. Both knees had 5° of fixed flexion. The right knee flexed to 115° and the left knee to 120°. McMurray’s test was normal bilaterally. There was no effusion in either knee. The Osmond-Clark sign was negative bilaterally. There was pitting oedema in both legs below the knee. The applicant had no adverse neurological deficit in either lower limb. He had normal lumbar lordosis and could reach just past the knees. He resumed the erect position normally. Extension, lateral flexion, and rotation were unremarkable. Straight leg raising went to 80° bilaterally and the applicant could sit up to that.
Dr Smith opined that the applicant had bilateral knee joint osteoarthritis, which is a familial inherited condition that predated the injury on 29 October 2018. This would have been clinically and radiologically diagnosable, even if it was asymptomatic, from around the age of 50, or possibly even 40.
On 29 October 2018, the applicant sustained an aggravation to his previously asymptomatic right knee osteoarthritis, which would have resolved on its own accord, with or without treatment, after one or two weeks at the very most.
Once knee joint osteoarthritis becomes symptomatic, the symptoms become increasingly frequent with weight bearing, and they become gradually increasingly severe. There was no work injury to the applicant’s left knee, which was about as arthritic as his right.
Dr Smith opined that the meniscal tear in the applicant’s right knee was part of the arthritic process. The applicant’s uninjured left knee had a meniscal tear, which was part of the arthritic process. Both knees would get worse with the passage of years.
Dr Smith was asked whether the applicant had suffered an injury [sic] to his left knee consequential to the accepted injuries
Dr Smith responded that knee joint osteoarthritis is not an injury, but a disease process consequent to ageing. Lumbar degenerative disease occurs in 100% of men and women aged 60 and over. It is common to have episodic low back pain from around the age of 30.
Dr Smith assessed the applicant’s WPI as 4% with respect to his right knee (none of which he attributed to the injury on 26 October 2018), and 4% with respect to his left knee.

Dr Anthony Greenberg – general and gastrointestinal surgeon

Dr Greenberg was qualified by the applicant.
I do not intend to discuss in detail the evidence of either Dr Greenberg or Dr John Garvey, who was qualified by the respondent, as there is no dispute that the applicant has sustained a consequential condition of his digestive system as a result of the injury. The impairment that results from that condition is of course a matter for assessment by a Medical Assessor.
On 7 June 2023, Dr Greenberg recorded that, prior to his left [sic, and corrected in his report dated 4 July 2025, to which I have referred above] knee injury, the applicant’s weight fluctuated between 110kg and 115kg, “or thereabouts.”
After the injury, Mr Woods’ weight increased to 185kg, or, he believed, on occasions even a little heavier. Dr Greenberg noted the applicant would be classified as morbidly obese.
Following bariatric surgery (gastric sleeve), the applicant had stabilised his weight and weighed 103kg. The applicant’s BMI (body mass index) was such that he would be classified as bordering on being overweight to obese.
Dr Greenberg recorded the applicant’s gastrointestinal symptoms. The applicant told him his knee had not improved despite having weight reduction surgery.
In a report dated 15 September 2023, Dr Greenberg correctly recorded that the applicant injured his right knee on 29 October 2018 (but later referred to the left knee). Dr Greenberg assessed the applicant’s WPI as a result of the condition of his upper gastrointestinal tract as 12%.
The applicant has minimal scarring, and Dr Greenberg therefore made no assessment of TEMSKI.

Dr John Garvey – general and diagnostic surgeon

Dr Garvey reported first on 16 December 2019.
Dr Garvey had been requested to opine as to whether laparoscopic sleeve gastrectomy was reasonably necessary.
The applicant told Dr Garvey that his weight was normally about 130kg but had risen to 170kg since the injury.
Dr Garvey opined that the proposed surgery was reasonable and necessary [sic].
Dr Garvey next reported on 10 January 2020.
Dr Garvey concurred with the opinion of the applicant’s orthopaedic surgeon that bariatric surgery was recommended.
Dr Garvey was unable to weigh the applicant so accepted his word that he weighed about 170kg.
On 17 June 2024, Dr Garvey provided an assessment of 9% WPI as a result of the applicant’s upper digestive tract condition.

SUBMISSIONS

The submissions have been recorded. I will therefore summarise the main points.

Applicant

The applicant submitted the issue is whether I am satisfied on the balance of probabilities that there is an unbroken chain of causation from the injury to the consequential conditions.
The applicant submitted the evidence will establish that he had an altered gait, and substantial weight gain that caused overreliance on his left knee. I need only be satisfied that it is likely an aggravation occurred. There is support for this in the respondent’s evidence.
The applicant submitted it is not surprising there is reference in the medical evidence to previous back problems. He had been doing heavy manual work from February 2017.
The applicant referred to his evidence and that of Ms Pinto regarding issues with his right knee. He submitted I would have no difficulty in accepting he developed a limp. Even at his lightest, he weighed 100kg. He is a substantial man, who had walked with a limp for seven years.
The applicant submitted that Dr Bodel acceded quite readily to the fact that he had developed a limp, as did the other doctors. Dr Bodel had found on two examinations guarding and asymmetry of the applicant’s lower back.
The applicant submitted Dr Smith’s report is of little assistance. He got the applicant’s symptoms right but waved them away by saying a lot of older people have disease.
The applicant submitted the entries in the GP’s clinical records are scant, which was a perfect example of why such records should not be used as a perfect record.
The applicant submitted I would accept he had a right knee injury, a torn medial meniscus, he was heavy and gained a lot of weight, he walked with a limp (corroborated by his partner and the doctors), he reduced his weight to 100kg, he had issues with his left knee, about which he complained to his GP, and there was likely compensation in his lumbar spine.
The applicant submitted Dr Smith did not comment on his limp. The test is not whether he had arthritis. All body parts should be referred to the Medical Assessor.
In reply to the respondent, the applicant submitted the COCs should be read in the context of the clinical notes, which are very sparse. The omission of the consequential conditions does not mean they do not exist. Nothing can be taken from this omission.
The applicant submitted it is enough if I accept that his lumbar spine is symptomatic. It is immaterial whether he has had a scan or treatment.
The applicant finally submitted he is not a complainer and does not live close to a medical practice.

Respondent

The respondent submitted the applicant’s case with respect to consequential condition of his left knee is stronger than that with respect to his lumbar spine. There is not a lot of support from Dr Hoe for “overcompensating”. He has not dealt with the left knee or lumbar spine.
Save for what was submitted by the applicant, the respondent submitted there is not a lot of support for the consequential conditions in the clinical notes. Three hundred pages of COCs deal only with injury to the applicant’s right knee. There is no reference to the lumbar spine or left knee, and only occasional reference to gastric sleeve surgery.
The respondent submitted the clinical records show the existence of lower back pathology since at least 2011. There is no subsequent investigation of the applicant’s low back, which is consistent with the applicant not being referred for treatment, and Dr Hoe not having referred to his back.
The respondent submitted the clinical records of 29 October 2018 and 3 May 2018 suggest the applicant had a right knee injury before the pleaded date of injury.
The respondent referred to Dr Hoe’s evidence. It submitted that by October 2022, Dr Hoe recorded a range of motion in the applicant’s right knee that was close to normal and opined there was no need for surgery. There are no subsequent reports about the lumbar spine or left knee. Dr Malia did not refer the applicant to Dr Hoe for either.
The respondent referred to Dr Bodel’s evidence. It submitted there is no explanation of how or why the applicant has consequential conditions of his lower back and left knee as a result of the injury to his right knee. Dr Bodel identified a limp on examination but did not say the conditions resulted from the limp or anything else.
The respondent submitted Dr Smith’s opinion is consistent with the objective clinical records and Dr Hoe’s evidence. There is no report from Dr Malia. There is no investigation of the applicant’s lumbar spine, apart from a CT scan in 2011.
The respondent submitted that if either Dr Malia or Dr Hoe was concerned that the applicant had a consequential condition they would have sent him for investigations and treatment.
The respondent submitted I would not accept there is a “commonsense causal connection” between the injury and the claimed consequential conditions. There should be an award for the respondent for those body parts, and the accepted injury/consequential condition should be referred to a Medical Assessor.

SUMMARY

The respondent does not dispute that the applicant has sustained a consequential condition of his upper gastrointestinal tract as a result of the accepted injury to his right knee. The respondent does dispute that the applicant has sustained a consequential condition of either his left knee or his lumbar spine as a result of that injury.
In order to establish that he has sustained consequential conditions of his left knee and lumbar spine, Mr Woods is not required to satisfy the requirements of ss 4 and 9A of the 1987 Act – see for example Kumar v Royal Comfort Bedding Pty Ltd[1] and the cases discussed therein.
[1] [2012] NSWWCCPD 8.
The applicant need only establish that on the balance of probabilities the conditions of his left knee and lumbar spine resulted from the accepted injury to his right knee.
In Kooragang Cement Pty Ltd v Bates,[2] Kirby P, as his Honour then was, referred to the “commonsense evaluation” of the causal chain.
[2] (1994) 35 NSWLR 452; 10 NSWCCR 796.
It is clear that the applicant was, both before and after the injury, what his counsel referred to as a substantial man. At his lightest, he weighed about 100kg. He has given evidence of significant weight gain after the injury.
The applicant’s evidence is that he began to experience pain in his lumbar spine and left knee since he had been limping after the injury to his right knee.
The applicant’s partner has given evidence that he limped as he walked, began complaining of left knee pain, and complained about his back pain almost daily, which is inconsistent with the submission that he is not a complainer (and no criticism is made of the applicant in this regard).
Ms Pinto did not believe the applicant had any back pain before the injury, but the medical records show otherwise.
The applicant underwent bariatric surgery to enable him to lose weight. It was hoped this would in turn both delay surgery to his right knee and allow him to undergo surgery if necessary. As it transpired, he has not had any surgery to his knee.
The clinical records of the applicant’s GP have been described as scant, and I agree with that description. I am aware, of course, of the authorities that urge caution when relying on clinical notes in evidence.
In Nominal Defendant v Clancy,[3] Santow JA said (at [54] – [55]):
“While clinical notes, as McColl JA observes, may in common experience, be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor is likely to have been written with more deliberate consideration than rough notes…”
[3] [2007] NSWCA 349.

This reflects the comments in Davis v Council of the City of Wagga Wagga[4] that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury” (at [35] per Mason P, Beazley and Tobias JJA agreeing).
[4] [2004] NSWCA 34.
The conclusions reached in cases such as those discussed, does not, of course, mean that no weight may be placed on the contents of clinical records. It is a question of how much weight is placed on the evidence. In King v Collins[5] Basten JA (Mason P and Santow JA agreeing) said:
“There is no doubt that his Honour was entitled to place weight on the fact that the written records did not demonstrate any indication that the accident was caused by movement in the step when the plaintiff trod on it. However, some care must be taken in attributing too much weight to such documents.” (at [34]).
[5] [2007] NSWCA 122.
In this matter I am unfortunately not assisted by a report from Dr Malia.
It is not correct to say that the applicant was not referred for investigation of his lumbar spine at a time after the injury.
Dr Malia has recorded on 11 July 2019 that the applicant had a compensatory “injury” to his left knee, and he referred Mr Woods for MRI of both his left knee and his lumbar spine. He has not provided a reason for MRI of the applicant’s lumbar spine, apart from recording
“re-evaluation.”
It seems to me that, despite the paucity of his notes, had Dr Malia believed the condition of the applicant’s lumbar spine was consequential on the injury to his right knee, he would have recorded this at the time, as he did with respect to the left knee. There is no report in the clinical records of investigation of the applicant’s lumbar spine, so it may be that the applicant did not take up the referral. There is a report of MRI of the applicant’s left knee dated 7 August 2019.
As I have noted, none of the numerous COCs issued by Dr Malia refers to the applicant’s left knee or lumbar spine. That is not determinative of the issue. It seems to me that Dr Malia accepts that the applicant has a consequential condition of his left knee but has nonetheless not included the condition in the COCs.
Dr Hoe initially recorded that the applicant walked with a slight limp. When he last saw the applicant in October 2022, he recorded that the applicant walked without a significant limp, suggesting improvement in this aspect of the applicant’s presentation. I accept that the applicant would have walked with a limp immediately after the injury, but it does not appear to have been significant at least by December 2018, when he was first examined by Dr Hoe.
Dr Hoe recorded no history of complaints about the applicant’s lumbar spine (or for that matter, his left knee).
The applicant has support for his claim from Dr Bodel. Dr Bodel recorded in December 2019 that the applicant walked with a limp.
Dr Bodel attributed the development of left knee and lower back pain to the applicant’s altered gait pattern for a prolonged period, which is the only explanation he provided, but “a prolonged period” does not accord with Dr Hoe’s evidence.
Dr Bodel recorded back ache and intermittent low back pain, but the applicant had a history of back pain before the injury. It is unclear whether Dr Bodel was provided with Dr Malia’s clinical records, although he has referred to “various WorkCover certificates.”
In his initial report, Dr Bodel opined that the applicant had mechanical backache associated with degenerative disc disease, and “work” had caused an aggravation, acceleration, exacerbation and deterioration to that disease process. He also opined that the applicant had a “consequential injury involving the left knee and back”, the reason for which is unexplained, and which appears inconsistent with his first conclusion regarding the applicant’s lumbar spine.
In his report dated 9 February 2024, Dr Bodel recorded that the applicant had developed left knee pain and lower back pain because of an altered gait, and at the same time opined that the applicant had back pain of degenerative disc disease (which is similar to the opinion expressed in his first report, except that he did not in this report refer to work-related aggravation).
It does not seem to me that the “intermittent” low back pain that Dr Bodel has recorded on each occasion he examined the applicant differs greatly from the experience of low back pain previously recorded.
I have found Dr Bodel’s evidence unpersuasive.
Dr Smith does not accept that the permanent impairment of the applicant’s right knee results from the accepted injury to that knee. He opined that the effects of the aggravation of osteoarthritis that occurred on 29 October 2018 would have been short-lived. That does not accord with the evidence of Dr Malia or Dr Hoe. Dr Hoe did not ultimately proceed to surgery on the applicant’s right knee, because the applicant’s condition had stabilised.
Dr Smith opined that there was no injury to the applicant’s left knee. When he was asked if the applicant had suffered a consequential injury [sic] to his left knee, he responded that osteoarthritis is not an injury, but a disease process. As regards any condition of the applicant’s lumbar spine, Dr Smith referred to statistics about lumbar spine disease.
I have found little assistance from Dr Smith’s reports. However, the applicant bears the onus.
The respondent submitted that the applicant’s case with respect to consequential condition of his left knee is stronger than his case with respect to his lumbar spine. I agree with that submission.
In Nguyen v Cosmopolitan Homes,[6] the Court of Appeal (McDougall J, McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited):[7]
“On analysis, I think what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
[6] [2008] NSWCA 246 (Nguyen).
[7] [1990] HCA 20; (1990) 169 CLR 638.
The Court went on to say (at [55]):
“The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
Having considered the evidence, I do not feel a sense of actual persuasion that, on the balance of probabilities, the applicant has sustained a consequential condition of his lumbar spine as a result of the injury to his right knee on 29 October 2018.
I am satisfied on the balance of probabilities that the applicant has sustained a consequential condition of his left knee as a result of the injury to his right knee on 29 October 2018.
The findings I make are therefore:
(a) the applicant has sustained a consequential condition of his left knee as a result of injury to his right knee on 29 October 2018, and
(b) the applicant has not sustained a consequential condition of his lumbar spine as a result of injury to his right knee on 29 October 2018.
The orders are set out in the Certificate of Determination.

[2025] NSWPIC 520

30 September 2025