Woof v Yahweh Care Ptd Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woof v Yahweh Care Ptd Ltd [2023] NSWPIC 453
APPLICANT:	Rebecca Woof
RESPONDENT:	Yahweh Care Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	6 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for treatment expenses for left wrist condition; accepted knee injury; subsequent fall from a ladder at home in which wrist fractured; whether wrist condition requiring treatment “resulted from” the accepted knee injury; whether injury would have caused the knee to give way; Held – the condition at the applicant’s left wrist resulted from the injury; general order for the respondent to pay section 60 expenses in respect of the left wrist condition.
DETERMINATIONS MADE:	The Commission determines: 1. The condition at the applicant’s left wrist resulted from the injury on 30 August 2022. 2. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the left wrist condition in accordance with s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Rebecca Woof (the applicant) was employed as disability support worker by Yahweh Care Pty Ltd (the respondent).
On 30 August 2022, the applicant sustained an injury to her left knee when she slipped and fell on a painted concrete surface while in the course of her employment. Liability for that injury is not in dispute.
Subsequently, on 16 December 2022, the applicant was at home cooking dinner when a smoke alarm was activated. The applicant fell from a step ladder which she was using to attempt to de-activate the smoke alarm and injured her left wrist.
The applicant notified the respondent’s insurer of the left wrist condition and, on 4 April 2023, a notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the consequential condition.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Personal Injury Commission (Commission) on 10 July 2023.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of a consultation with orthopaedic hand and wrist surgeon, Dr Simon Chan, on 29 June 2023, as well as future consultations with Dr Chan.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 4 September 2023 in Sydney. The applicant was represented by Mr Jarryd Malouf of counsel, instructed by Mr Ahmad Dawod. The respondent was represented by
Mr Daniel Stiles of counsel, instructed by Mr Steven Diakiw. A representative from the insurer, Ms Liu, was also present. The applicant appeared via Microsoft Teams.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the left wrist condition resulted from the injury on 30 August 2022, and
(b) whether the s 60 expenses claimed are reasonably necessary as a result of the injury on 30 August 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in two written statements.
The first statement was prepared by an investigator procured by the insurer and is dated 16 February 2023.In that statement, the applicant described the initial workplace injury on 30 August 2022. The applicant was collecting one of her employer’s vans from the home of its director when she slipped on a painted concrete driveway and injured her left knee.
The applicant ceased employment with the respondent on 22 September 2022 and commenced employment with a new employer on 26 September 2022. The applicant resigned from the subsequent employment on 15 November 2022 as the pain in her knee was preventing her from performing her duties effectively.
The applicant stated:
“On 16 December 2022 at about 7.00pm, I am not aware of the exact time, I was cooking dinner at home when the smoke alarm was activated. I got a step ladder which is a metal four step ladder which is 610mm high I stepped up onto the ladder and was standing with both feet on the second step while reaching up with a ruler attempting to press the button on the smoke alarm when I felt my left knee give way beneath me I lost all strength in my left knee, and I fell backwards onto the tile floor.”
The applicant said she put out her left hand to break her fall and felt immediate pain in her wrist. The applicant noticed a bulge between her thumb and wrist and swelling. The applicant took Nurofen and Panadol and put ice on the wrist but was in intense pain.
At 8am on 17 December 2022, the applicant’s sister’s husband drove her to Blacktown Hospital Emergency Department. The applicant underwent X-ray and ultrasound scans, which revealed multiple broken bones. The applicant was placed in a temporary plaster cast until she could undergo surgery. The applicant said she was discharged from hospital the same day but could not locate the discharge paperwork.
The applicant attended her general practitioner at Orana Medical Centre on 19 December 2022. The applicant provided Dr Perera with the discharge summary and informed him that her left knee had collapsed while she was on a ladder causing her to fall onto her wrist. This information was added to the applicant’s workers compensation certificate of capacity.
The applicant contacted the insurer to inform them of the wrist injury on 22 December 2022 but was unable to speak with her case manager. The applicant told another case manager how she had hurt her wrist.
On 29 December 2022, the applicant underwent a left distal radius open reduction and internal fixation (ORIF) surgery performed by Dr Deepak Cheriachan at Blacktown Hospital.
On 16 January 2023, the applicant underwent an ultrasound scan of her left wrist. This revealed a complete rupture to the left thumb ligament. The applicant was referred for physiotherapy and saw Kunjal Shah, who taped the thumb to help reduce pain and keep it in the correct position.
The applicant was seen at the fracture clinic for review by Dr Cheriachan on 22 February 2023.
The applicant described constant ongoing pain and functional disabilities resulting from the wrist injury.
The applicant’s second statement was prepared on 18 June 2023. In that statement, the applicant again described the injury on 30 August 2022. The applicant said that following the injury, she continued to work on reduced hours and light duties but could not manage the demands of her role, causing her to resign.
The applicant underwent an MRI scan of the left knee and was advised to take general painkillers to help manage her symptoms. The applicant said her knee did not seem as though it was improving at all. After walking for brief periods, the knee would swell and flare up causing immense pain.
For financial reasons, the applicant looked for alternative part-time work. The applicant realised that her condition was only getting worse and she was unable to perform simple tasks due to the pain in her knee and hip.
On 24 November 2022, the applicant was referred to a physiotherapist who suggested using tape, ice and heat to minimise the pain.
The applicant stated:
“On 16 December 2022, I was at home cooking some food when suddenly, the smoke alarm went off. I could not reach the smoke alarm so I used a ladder and attempted to climb it so I could disable the alarm. As I was climbing, I recall being on the second or third step when my left knee unexpectedly gave way. I recall falling backwards directly onto my left wrist. I immediately felt sharp, shooting pain to my left wrist and fingers.
I have used ladders before and never have I ever had issues with going up and down the steps.”
The applicant said that following the surgery on 29 December 2022, she underwent physiotherapy to help regain movement in her wrist. The applicant experienced debilitating pain in her left thumb. Further scans demonstrated a complete rupture of the extensor pollicis longus tendon.
The applicant’s general practitioner prescribed Targin and she was referred for further scans. On 9 February 2022, the applicant was referred to hand specialist, Dr Simon Chan, for management of the left hand.
The applicant saw Dr Chan, at her own expense, on 29 June 2023. Dr Chan had recommended surgery but wanted to get the applicant’s pain under control first.

Treating evidence

Clinical notes from Orana Medical Practice include a consultation on 1 September 2022 recorded as follows:
“fall whilst walking down slippery driveway 2/7 ago
landed on anteromedial aspect of knee
also reporting new left hip pain (tender over ASIS + GT)
main difficulties/pain on sit to stand, lying to sit
impaired flexion, unable to fully extend knee”
The applicant was referred for an MRI and X-ray.
The applicant reported pain on bending, squatting, kneeling and walking to her general practitioner on 25 September 2022. The applicant was noted to be taking Nurofen and was referred again for MRI of the left knee.
Ongoing knee pain, especially ongoing upstairs, was reported to the applicant’s general practitioner on 6 October 2022.
The results of the MRI scan were discussed at a consultation on 17 November 2022. The applicant agreed to trial conservative management. If that failed, the applicant would be referred to an orthopaedic surgeon.
On 24 November 2022, the applicant again reported left knee pain and was referred for physiotherapy. The applicant reported being unable to manage many activities of daily living due to difficulty with squatting and bending down and reduced range of movement.
At a physiotherapy consultation on 30 November 2022, the applicant was noted to be off work due to her left knee pain. On 7 December 2022, the notes of a physiotherapy consultation recorded:
“taping has lasted til now
knee still can be quite sore
noticing discomfort through into the lower glute region
waking up at night due to it
rolling in bed and standing up
keeping up with walking - about 15 minutes a day”
At a consultation on 14 December 2022 it was noted:
“slight improvements in the knee
mainly ok at rest
the moment she has to do more, pain builds quite quickly
causes limp in those moments
glute still causing trouble as well”
The left wrist fracture was first noted in a consultation with the applicant’s general practitioner on 19 December 2022, at which time it was recorded:
“re-presenting with confusion of wanting this under worker's comp as patient states her bad knee (which is under worker's comp) gave out on her when climbing the ladder to turn the defective smoke detector off, causing her to fall and fracture her wrist”
The clinical notes of a review on 22 December 2022 recorded:
“On 16/12/2022 sustained a left communuted distal radius fracture with close reduction in ED on 17/12/2022, and orthopedic followup due this week - likley requiring on ORIF
- injury occurred as fire alarm was faulty and went off at her house on 16/12/2022 night time. Climed 2 steps of a small step ladder, her left knee (which she has injured under worker's compensation) gave way causing her to fall. This injury occurred as a results oher left knee injury
- as a results of ongoing left knee rehab and now ongoing managmeent for left distal radius fracture. She will be unable to work for at least another month, if not longer. She is awaiting orthopedic review currenlty.”
A SIRA certificate of capacity issued on the same day by Dr Vidura Perera in relation to the injury on 30 August 2022 included the clinical notes recorded above in relation to the left wrist fracture.
A discharge summary from Blacktown Hospital, dated 29 December 2022, in relation to the left distal radius ORIF noted a history that included:
“- Trip and fall off stepladder 1m high”
A SIRA certificate of capacity issued by Dr Geoffrey Ye on 12 January 2023 identified a secondary injury in the nature of the left distal radius fracture requiring ORIF as a factor affecting recovery. The certificate noted:
“Climed 2 steps of a small step ladder. her left knee (which she has injured under worker's compensation) gave way causing her to fall,. A large contributing factor of this Injury Is her pre-existing left knee and hip Injuries/conditions.”

Dr Mendelsohn

The applicant relies on a medicolegal report prepared by general surgeon and musculoskeletal consultant, Dr Graeme Mendelsohn, dated 8 May 2023.
Dr Mendelsohn took a history of the injury on 30 August 2022 and the subsequent employment and treatment history. The applicant was noted tpo have undergone X-rays, ultrasound and MRI scans and was prescribed Panadol and Nurofen as well as physiotherapy. The physiotherapy gave some temporary improvement and, with further rest, the applicant did improve to a certain extent when she was off her knees. As the applicant lived alone, she had to get out to do shopping and other duties and this tended to stir up her symptoms.
Dr Mendelsohn recorded a history of the event on 16 December 2022 as follows:
“On 16 December 2022, she was at home, cooking sausages when the smoke alarm went off. She brought out a metal ladder to attend the smoke alarm and as she was climbing the ladder, her knee gave way, when she was on the second or third step. She fell backwards directly onto her left wrist, landing on the tiles of the floor.”
Regarding that history, Dr Mendelsohn commented:
“I questioned Ms Woof about the mechanism of her fall. She is quite certain that her knee did give way, which caused the fall. On questioning, she told me that she had not had a problem before with her knee giving way, but it did on this occasion. She had experienced pain prior to this when going up stairs.
I am inclined to believe Ms Woof’s version that her knee did give way, in that she could have claimed that she had had several episodes before of it giving way, but in fact she denied any previous experience of this, and that this was in fact the first time that her knee gave way. If she was not telling the truth, I am sure that her story would have been embellished by bouts of further episodes of the knee giving way. She did not do this, and therefore I see no reason to doubt her story.”
Dr Mendelsohn said the applicant’s knee continued to swell. The applicant found relief if elevating her leg. Walking about 200m was painful.
Dr Mendelsohn referred to various scans, including an MRI dated 14 November 2022, which showed evidence of effusion and oedema of the iliotibial band but no cruciate tear. There was also full thickness chondral loss noted over the lateral femoral condyle.
On examination, Dr Mendelsohn said he gained the impression that the applicant was genuine and did not appear to be exaggerating. The applicant was noted to walk with a broad-based gait and slight limp. The right knee was normal to examination. Findings on examination of the left knee were recorded as follows:
“As regards the left knee, there was tenderness over both the medial and lateral aspects but especially laterally and over the patella. She was unable to fully extend the leg at the left knee with a 5% extensor lag and only 50° of flexion. Grinding test for cartilage damage, however, was negative. There was some instability on lateral stressing of the knee.”
Dr Mendelsohn diagnosed a soft tissue injury to the left hip leading to trochanteric bursitis and a separate injury to the left iliotibial band.
Asked whether the applicant had suffered a consequential injury to the left wrist as a result of the fall at home, Dr Mendelsohn responded:
“As I have outlined in my report above, I believe that on the balance of probabilities she did suffer a fall on a ladder at home due to her knee giving way. I believe that the reasons for this was the injury that she received to her knee in the work-related incident in August 2022. As noted above, she had ample opportunity to embellish her story to suggest a pattern of the knee giving way, but she did not avail herself of this opportunity. For this reason, I am certainly inclined to believe her assertion that her knee did give way and that this was as a consequence of her prior knee injury in August 2022.”

Dr Nair

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Anil Nair, dated 7 March 2023 and 28 March 2023.
Dr Nair took a history of the injury on 30 August 2022 in which the applicant slipped and struck her left knee, developing pain in the left knee and hip. The applicant reported a second accident at home on 16 December 2022. Dr Nair noted:
“She was at home when she ascended a ladder. She stated that she ascended about two steps of the ladder when she fell, injuring her left wrist. She presented to Blacktown Hospital and underwent open reduction and internal fixation of the left wrist.”
On examination, Dr Nair noted that the applicant walked with a Trendelenberg gait pattern. The applicant had bilateral patellofemoral crepitus and was tender over the iliotibial band of the left knee. There was no tenderness in the right knee. An MRI scan of the left knee was reported to show chondral loss and signal hyperintensity adjacent to the iliotibial band.
Dr Nair diagnosed a work-related strain adjacent to the left iliotibial band tendon.
Asked whether the left distal radius fracture was work-related, Dr Nair responded:
“I do not see how the left distal radius fracture is work-related. The injury was sustained at home. The pathoanatomy on the MRI scan of the left knee, dated 25 September 2022, demonstrated degenerative change and would not have been caused or materially aggravated by the low energy incident on 30 August 2022. It is certainly likely that the strain as evidenced by increased signal iliotibial band may have been caused by the fall from a standing height. However, a sprain of an iliotibial band would not, in itself cause an individual to fall from a ladder. Falls from ladders are common and frequently occur independent of any injuries.”
In his supplementary report, dated 28 March 2023, Dr Nair was asked whether the left knee iliotibial band strain should have resolved. Dr Nair noted that the applicant did have mild tenderness when reviewed on 27 February 2023 and the strain may still be present, although resolving.
Dr Nair was asked if an iliotibial band strain could make a worker’s knee give way and cause her to fall from a ladder. Dr Nair responded:
“As stated in my previous report a strain of the ilio tibial band would not in itself cause an individual to fall from a ladder. Falls from ladders are common and not attributable to an ilio tibial band strain. I do not see how the fall from a ladder at home is related to the workplace injuries.”

Applicant’s submissions

The applicant submitted that a consistent history of the event of 16 December 2022 had been provided. The only countervailing evidence was that provided by Dr Nair. In the absence of any credit issue, the Commission would not prefer Dr Nair’s vague opinion that the knee injury could not cause a fall, over the applicant’s consistent evidence.
The applicant referred to her two statements and noted that both gave a history of the applicant reaching the second or third step of the ladder when her left knee unexpectedly gave way. The applicant noted that the second statement was given voluntarily to the factual investigator prior to any dispute.

The applicant conceded that no material from the applicant’s presentation to Blacktown Hospital the day after the event were available. The applicant was driven to the hospital, so there were also no ambulance records. The first medical evidence was the entry in the general practitioner’s notes on 19 December 2022, three days after the incident. On that occasion, the applicant reported that her bad knee gave out on her when climbing the ladder to turn the defective smoke detector off, causing her to fall and fracture her wrist.
The applicant noted that continuing symptoms in the left knee in the period between the work injury and the ladder fall were recorded in the general practitioner’s notes.
The applicant returned to Blacktown Hospital for surgery. The applicant acknowledged that the discharge referral from that admission mentioned a trip and fall from a ladder but submitted that the record lacked detail and was not a reliable account of what happened on 16 December 2022. In contrast, consistent accounts of the knee giving way had been given in the applicant’s statements to the Commission, the investigator and her general practitioner.
Dr Mendelsohn also took a consistent history and accepted the applicant’s account. Both independent experts diagnosed the knee injury in the same way. Dr Mendelsohn gave a qualified opinion that the injury could cause the applicant’s knee to give way.
The applicant noted that Dr Mendelsohn’s examination of the left knee revealed instability on lateral stressing.
The applicant submitted that a commonsense test applied. The Commission need only be satisfied that the wrist condition “resulted from” the knee injury.
The only contrary voice was that of Dr Nair. The applicant said it was unusual that the history of the knee giving way was omitted in the history recited in Dr Nair’s first report. The history had, however, been given to him, given that it was addressed later in the report.
Dr Nair accepted that the applicant’s knee remained symptomatic. Although Dr Nair concluded that an iliotibial band strain would not cause a fall, he did not say whether it could cause the knee to give way. No reasoning which would lead the Commission to disbelieve the applicant had been provided.
In his supplementary report, Dr Nair was asked whether the left knee injury should have resolved. Dr Nair considered that the strain may still be present. Dr Nair “dodged” the question about whether the strain could cause the knee to give way.
What remained was a consistent body of evidence. There were no credibility issues and no cross-examination of the applicant. No compelling evidence had been provided that the knee could not have given way. The applicant submitted that the Commission should find that there was a consequential condition at the left wrist and compensation for treatment expenses should follow. No dispute had been raised that the consultations with Dr Chan were not reasonably necessary.

Respondent’s submissions

The respondent said it took a different view as to whether there were any inconsistencies in the evidence. The respondent noted that the applicant’s first statement to the investigator described the applicant reaching up with a ruler to attempt to press the button on the smoke alarm then falling backwards.
The respondent submitted that the history of reaching up with a ruler was not given to either Dr Nair or Dr Mendelsohn. The applicant’s two statements described very different dynamics. The mechanism of climbing up a step and the knee giving way was very different to reaching up with a ruler and falling backwards.
The respondent submitted that Dr Nair’s opinion was consistent with the earlier history.
Dr Nair noted that people do fall from ladders and reaching out to press a button with a ruler might explain the fall.
The respondent noted that the independent experts had both given the same diagnosis.
Dr Nair was of the view that an iliotibial band strain would not account for a knee giving way. In contrast, Dr Mendelsohn gave no medical explanation as to why the injury would cause the applicant’s knee to give way. Dr Mendelsohn simply accepted the applicant’s explanation and in doing so gave a factual opinion rather than a medical or scientific opinion.
The respondent submitted that Dr Mendelsohn’s examination of the applicant’s knee in
May 2023 bore little relevance to the question of what happened on 16 December 2022.
The respondent submitted that the applicant bore the onus of establishing the requisite causal relationship. No clear medical evidence from the applicant’s expert, explaining how the knee gave way as a result of the injury, had been provided.
Dr Nair confirmed the presence of a strain but said it would not cause a fall from the ladder.
The more contemporaneous evidence from the applicant provided an alternative explanation for the fall in so far as the applicant was reaching up with a ruler.
The respondent submitted that the more contemporaneous statement would cause the Commission concern as to the applicant’s ability to establish the commonsense causal relationship.

Applicant’s submissions in reply

The applicant submitted that the statement provided to the investigator also described her knee giving way. There was no other suggestion that fall was due to over balancing in the evidence before the Commission.
The applicant noted that Dr Nair did not say that the knee injury would not cause the knee to give way. He simply said it would not cause a fall.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Murphy v Allity Management Services Pty Ltd[1] Roche DP stated:
“...That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[1] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
There is no dispute in these proceedings that the applicant sustained an injury to her left knee which satisfied the requirements of s 4 of the 1987 Act in the event on 30 August 2022.
The dispute in these proceedings relates to whether the condition at the applicant’s left wrist, which was occasioned by the fall from a step ladder on 16 December 2022, and the need for treatment by Dr Chan which followed, resulted from the accepted left knee injury.
It is not necessary for the applicant to demonstrate that the condition at the left wrist is itself an ‘injury’ pursuant to s 4 of the 1987 Act.
Deputy President Roche in Moon v Conmah[2] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[4] where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[4] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that the condition at the left wrist resulted from the injury on 30 August 2022. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246.
The success of the applicant’s case turns, to a large degree, on her own account of what occurred on 16 December 2022. As noted by the applicant’s submissions, the applicant has not been subjected to any cross examination. No submissions with regard to the applicant’s credibility generally were made by the respondent at the arbitration hearing.
The applicant has given a broadly consistent account of the incident on 16 December 2022 in a range of contexts. The most contemporaneous account appears in the clinical record made by the applicant’s general practitioner on 19 December 2022, three days after the event. On that occasion, the applicant is reported to have attributed the fall off the step ladder to her left knee giving way as a result of her work injury.
The account of the left knee giving way, causing the applicant to fall, was repeated in the notes of a consultation on 22 December 2022 and in certificates of capacity issued from that date onwards. Both Dr Perera and Dr Ye have indicated in the certificates issued by them, that the fall was causally related to the work injury.
A slightly different account appears in the hospital discharge summary issued a week later, following the applicant’s wrist surgery. That document referred to a “trip and fall”. Nowhere else in the evidence is there any suggestion that the applicant tripped, causing her to fall from a step ladder. Having regard to the inconsistency between that account and the remainder of the evidence before the Commission as well as the submissions made by the applicant with regard to the weight that ought to be given to a brief clinical record prepared in a busy a hospital setting, I give this aspect of the evidence little weight.
The first detailed statement from the applicant was prepared by an investigator at the request of the insurer on 23 February 2023. Consistently with the more contemporaneous treating evidence, the applicant again gave an account of her left knee giving way, causing her to fall from the ladder. The respondent’s submissions highlighted, however, that the applicant additionally described reaching up to press a button on the smoke alarm with a ruler.
This is the only occasion on which this aspect of the incident was described. The account of reaching up with a ruler was not mentioned to either of the medicolegal experts and does not appear in any of the contemporaneous treating evidence.
Whilst I accept that reaching up with a ruler whilst standing on a ladder could, of itself cause a person to lose balance and fall, it is significant that nowhere else in the evidence is there any suggestion that the fall was due to the applicant losing balance. At all times, the applicant has reported that the operative mechanism causing the fall, was her knee giving way, as opposed to some loss of balance due to reaching up with a ruler or otherwise.
Insofar as it was suggested by the respondent’s submissions that this additional detail rendered the applicant’s other accounts unreliable, it is relevant to consider the evidence as to the applicant’s knee condition at the time.
There is no evidence of the applicant’s knee having given way prior to the event on
16 December 2022. The clinical records from the applicant’s general practitioners and physiotherapist do, however, confirm ongoing symptoms at the left knee from the time of the injury until just prior to the ladder fall.
Two days prior to the ladder fall, for example, the notes referred to the applicant’s knee being sore. Although there had been improvements at rest, the moment the applicant had to do more, the pain would build quickly and cause a limp.
Both Dr Nair and Dr Mendelsohn considered that the work injury was still symptomatic based on their examinations of the applicant. It is of particular note that Dr Mendelsohn recorded instability at the left knee at the time of his examination on 8 May 2023.
Although the respondent has suggested that the findings on examination on 8 May 2023 provide little insight as to the applicant’s condition as at 16 December 2022, there is no evidence of any intervening event or aggravation to account for the instability.
The applicant’s account of the knee giving way as a result of the work injury was accepted by Dr Mendelsohn following close questioning.
Dr Mendelsohn’s opinion is, perhaps appropriately, criticised by the respondent as lacking a scientific or medical explanation for how an iliotibial band strain could cause the applicant’s knee to give way. The absence of such explanation does render Dr Mendelsohn’s ultimate opinion less persuasive. I am not satisfied, however, that it renders his opinion totally unreliable.
I am satisfied that Dr Mendelsohn was appropriately qualified to express the opinion he has.
I am satisfied that Dr Mendelsohn had a sufficiently accurate history of the left knee injury as well as the event on 16 December 2022. Dr Mendelsohn’s opinion is consistent with the opinions expressed by the applicant’s general practitioners, and the contemporaneous evidence of ongoing symptoms at the left knee.
As Spigelman CJ explained in Australian Security and Investments Commission v Rich:[6]
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”
[6] [2005] NSWCA 152 at [170].
Dr Nair has given a different opinion as to the possible relationship between the incident on 16 December 2022 and the work injury. Although Dr Nair diagnosed the work injury in the same way as Dr Mendelsohn and found evidence of ongoing symptoms at the time of his examination of the applicant in March 2023, Dr Nair did not accept that the fall from the ladder resulted from the work injury.
The applicant has criticised Dr Nair’s opinion for its failure to explain whether the work injury could have caused the applicant’s knee to give way. The account of the knee giving way is also relevantly omitted from Dr Nair’s initial recitation of the history. Dr Nair simply recorded that the injury would not have caused a fall, noting that people fall from ladders all the time.

Dr Nair’s opinion and the opinion of Dr Mendelsohn both suffer from a similar lack of explanation. Crucially, however, it is not made expressly clear in Dr Nair’s report that he considered the particular mechanism on which the applicant relies as causative of the fall, that is, the knee giving way.
In weighing the expert opinions, I also note that Dr Nair’s opinion is contrary to the weight of medical opinion insofar as the applicant’s explanation has been accepted by Dr Perera,
Dr Ye and her expert, Dr Mendelsohn.
As I noted during the conciliation phases of the proceedings, it is unfortunate that neither party has sought to put before the Commission the most contemporaneous medical evidence of the fall in the form of the records of the applicant’s admission to Blacktown Hospital the morning after the fall on 17 December 2022. This was a matter raised by me at the preliminary conference. No submissions were made by either party at arbitration as to what inferences ought to be drawn from that omission.
In those circumstances, I do not draw any adverse inference from the omission of the Blacktown Hospital records. I do, however, note that it is the applicant who bears the onus of proof.
After carefully weighing the evidence and noting, in particular, the relatively contemporaneous accounts of the knee giving way in the general practitioners’ notes, the consistent histories, the evidence of ongoing symptoms at the left knee and the acceptance of the applicant’s account by both her treating doctors and expert, I am satisfied on the balance of probabilities that the applicant’s left knee did give way whilst on the step ladder as a result of her work injury and that this caused the fall and fracture to the applicant’s left wrist. The opinions of Dr Nair, and the additional detail of reaching up with a ruler set out in the applicant’s first written statement, do not outweigh the applicant’s evidence when considered as a whole.
I am satisfied that the condition at the applicant’s left wrist resulted from the injury on
30 August 2022.
No separate dispute or submissions were raised in relation to the reasonable necessity or appropriateness of the consultations with Dr Chan.
In all the circumstances, I am satisfied that it is appropriate for a general order to be made for the respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the left wrist condition in accordance with s 60 of the 1987 Act, upon production of accounts, receipts and/or Medicare Notice of Charge.

[2023] NSWPIC 453

6 September 2023