1. Credit to be given to respondent for any weekly payments paid to the applicant prior to this determination. Liberty to apply.

A brief statement is attached setting out the Commission's reasons for the determination.

1. On 1 December 2020, Brian Leavy (the applicant) sustained injury to his left knee in an undisputed injurious event, a fall, in the course of his employment with Znx Pty Ltd (the respondent). The applicant clams weekly compensation.
2. The respondent disputed continuing effects of the frank injury on 1 December 2020, and also subsequent claim by the applicant for aggravation of disease of both knees said to result from the nature and conditions of his employment with the respondent.
3. The respondent also disputed the applicant's claim for secondary injury to his right arm and shoulder on 23 April 2023 said to have resulted from his left knee injury when his left knee gave way and he fell.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. The application was amended to correctly plead frank injury date of 1 December 2020.
3. At the conciliation/arbitration hearing of this matter the applicant was represented by

Mr Stockley of counsel, and the respondent by Mr Barter of counsel. Subsequently written submissions were received from both parties.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents;

(b) Reply and attached documents, and

(c) Applications to lodge additional documents dated 3 November 2025 and

6 November 2025 and attached documents.

1. The following documents were referred to in submissions:

(a) applicant's statement dated 28 August 2025;

(b) clinical records of Dr Wong treating general practitioner (GP);

(c) reports of Dr Woodbridge, treating orthopaedic surgeon, including reports dated

4 January 2021, 17 May 2021, 21 June 2021 and 21 July 2021;

(d) reports of Dr Endrey-Walder, general and trauma surgeon, qualified by the applicant's solicitors, dated 8 March 2022 and 20 February 2024(2);

(e) reports of Dr Coolican, orthopaedic surgeon qualified by the respondent insurer, dated 28 July 2021 and 20 September 2024, and

(f) pay records and list of payments.

1. I will briefly discuss the above documents where relevant in my reasons below.

1. At the commencement of the hearing the applicant sought to amend the ARD to limit his weekly compensation claim to commence from 9 July 2024, the date upon which the respondent says that he exhausted his sick leave entitlement, rather than as pleaded in the ARD from 24 August 2021. The respondent objected on the basis that the employer may be entitled to recover payments made to the applicant from its insurer and to credit for sick leave and wages paid since the onset of incapacity which, it was submitted, was

1 December 2020, the date of the applicant's frank injury. It was submitted by the respondent that while the applicant may be able to choose the date from which he makes his claim for compensation, that choice does not affect the date from which the Commission is to determine the onset of incapacity and resulting entitlement to compensation. 2. I accept the respondent's submission in this regard. Section 33 of the Workers Compensation Act 1987 (the 1987 Act) requires weekly compensation to be paid during the incapacity resulting from the injury. As I understood it, the respondent insurer had paid only certain s 60 expenses in respect of injury on 1 December 2020, but had not made payments for weekly compensation. As per Haddad v The GEO Group Australia Pty Ltd,[1] and Inghams Enterprises Pty Ltd v Thoroughgood,[2] it is the entitlement to claim weekly compensation which is determinative of the deemed date of injury, in this case pursuant to s 16 of the 1987 Act, (as to which see below), not the framing of the claim by the worker. That is, the claim for weekly compensation may be for later periods, such as after

23 April 2023, but the date of injury may be deemed to be 1 December 2020, pursuant to s 16, as an entitlement to claim weekly benefits for a period or periods prior to 24 April 2023 is in my view possible in respect of "make up pay", for the reasons given below. 3. The applicant relied upon allegations of frank injury to the left knee on 1 December 2020 and secondary injury to the right arm when he fell on 24 April 2024 as a consequence of the left knee injury, and also as a result of the nature and conditions of his employment causing or aggravating osteoarthritic disease of the left and right knees, deemed to have happened on 24 April 2023 when the applicant's physical duties with the respondent ceased. 4. Injury to the left knee on 1 December 2020 was not disputed, although liability was disputed on the basis that the effects of injury had ceased. The secondary condition of or injury to the right arm and shoulder on 24 April 2024 was disputed. The nature and conditions claim for causation or aggravation of osteoarthritic disease of the left and right knees, with deemed date of injury of 24 April 2023, was also disputed by the respondent. 5. It was also not in dispute that the nature of the injury suffered on 1 December 2020 was an undisplaced fracture of the tibial plateau and an aggravation of pre-existing osteoarthritis. The undisputed evidence was that this fracture had resolved by June 2021, as per the reports of Dr Woodbridge. 6. The respondent in submissions noted difficulties with reliability of evidence, including reports of 80 to 90% recovery in April 2021 and complaints made to Dr Endrey-Walder in March 2022, and the time lapse between injury and hearing, with the need to be guided by contemporaneous medical evidence. It was submitted that the most reliable evidence was that of Dr Woodbridge. 7. I accept that history recorded by Dr Woodbridge as to symptoms and continuing symptoms is reliable. However, in my opinion the history recorded by Dr Endrey-Walder is not inconsistent and hence also reliable. That is, Dr Woodbridge in his final reports, at least those that are before me, of June and July 2021, with consultation on 21 June 2021, noted that the applicant was much the same and his main problem continued to be medial discomfort, tenderness and continuing aggravation via arthritis. 8. In his March 2022 report, Dr Endrey-Walder noted to the applicant the report of

Dr Woodbridge of April 2021 in which it was recorded that the applicant felt they had been 80 to 90% recovery, to which the applicant responded to Dr Endrey-Walder that he continued to have lots of problems. Notably, in my view, the history recorded by Dr Coolican in July 2021 of current symptoms was also not inconsistent with the reports of Dr Woodbridge and

Dr Endrey-Walder in this regard. 9. In my view there was significance to a complaint of an unspecified sore knee at some time in the past, and also films of the right knee in 2018. This in my view supports the applicant's evidence of feeling right knee pain in the course of strenuous employment activities over many years. Dr Coolican placed no significance on these matters, although he thought it difficult to reconcile the reported symptom free left knee condition and the advanced arthritic changes that Dr Coolican reviewed, as well as the applicant's weight. 10. That was as far as this issue was taken, and in my view the evidence does not contradict the applicant's evidence that he had pain in his knees from time to time after a hard day's work prior to the time of the subject accident, and as recorded by Dr Endrey-Walder, in his right knee but not his left knee in the course of his strenuous duties after commencing employment with the respondent in 1989 until the time of the subject accident. 11. In respect of the frank left knee injury on 1 December 2020, I do not accept the respondent's submissions that the opinion of Dr Coolican is to be preferred, and I find:

(a) as noted, there was no persuasive suggestion that there was any history of left knee pain, restrictions or instability prior to 1 December 2020;

(b) the applicant performed his normal duties prior to 1 December 2020;

(c) I accept the applicant's evidence that he has sustained continuing left knee pain and instability since 1 December 2020;

(d) Dr Woodbridge in 2021 noted continuity of symptoms related to the subject injury, and similarly Dr Endrey-Walder in 2022 noted same, and

(e) I am not persuaded that Dr Coolican has explained how in the above circumstances in the continuity of symptoms and restrictions, the effects of the work injury on 1 December 2020 have ceased and a previously asymptomatic osteoarthritis became the cause of the applicant's continuing condition.

1. Dr Woodbridge was of the view that the effects of the subject injury were continuing, and that the knee may never be pain free, that is resulting from the aggravation of the pre-existing osteoarthritis. I accept that opinion and find that the applicant's left knee current and continuing left knee condition results from the injury of 1 December 2020, as well as from the nature and conditions of employment, as to which, see below. This is in accordance with the view of Dr Endrey-Walder.
2. In respect of the claim for injury as a result of the nature and conditions of employment over many years until 23 April 2023, on balance, it seems to me that the history recorded by

Dr Endrey-Walder is to be preferred. Dr Woodbridge dealt with the matter at hand, that is treatment following the fall on 1 December 2020. I do not accept the lack of reference to the applicant's evidence strenuous work duties over many years is significant in terms of considering injury as a result of the nature and conditions of employment both before and after the injury of 1 December 2020. The respondent has not disputed the applicant's evidence as to his strenuous work activities in this regard. 3. I do not accept the respondent's submission that, in respect of the claim for injury for nature and conditions of employment, Dr Endrey-Walder did not engage with the opinions of

(a) as noted above, Dr Woodbridge dealt with treatment for the frank injury of

1 December 2020, and should not be regarded in my view as excluding injury as a result of nature and conditions of employment;

(b) Dr Coolican dealt with the effect of the injury on 1 December 2020, and as noted above, but he took no history of strenuous work activities prior to

1 December 2020, and in his July 2021 report, he took a history of current duties without further relevant comment;

(c) in his 2024 report Dr Coolican relevantly noted only light duties work since

1 December 2020, and he did not agree with Dr Endrey-Walder that the general nature of employment duties caused the symptoms of the left knee;

(d) Dr Coolican pointed to obesity as well as the natural course of the osteoarthritic condition of the left knee as being relevant to his view. As noted above, I have not preferred his view;

(e) the opinions of Dr Woodbridge and Dr Coolican did not engage with the undisputed history of strenuous work activities recorded by Dr Endrey-Walder.

Dr Coolican disagreed generally but did not refer to the detail of those duties, nor to the long period of undertaking those duties, and

(f) the respondent also pointed to the history in clinical records recorded by

Dr Wong, including records of right knee osteoarthritic problems in 2018. This has been dealt with in respect of the report of Dr Coolican. In any event, this is not inconsistent with the applicant's claim for aggravation of pre-existing osteoarthritis of both knees,

1. I prefer opinion of Dr Endrey-Walder and the evidence of the applicant. Dr Endrey-Walder did note the significance of the left knee injury of 1 December 2020, but placed that injury within the context of injury to both knees as a result of the nature and conditions of employment over many years up to that point. Dr Endrey-Walder took into consideration the strenuous work activities of the applicant over 30 years prior to 1 December 2020. Dr Coolican did not provide this detailed and considered view of those activities. The notes of Dr Wong and the reports of Dr Woodbridge in my view do not contradict the view of Dr Endrey-Walder.
2. The applicant pointed to certificates of capacity post 1 December 2020 as confirming continuing strenuous work activities while on restricted duties, including lifting up to 20 kg. However, Dr Endrey-Walder in my view made no comment as to causation in respect of the period of restricted duties employment following the injury of 1 December 2020, but instead opined as to the applicant's strenuous work activities over many years prior to that date in respect of both knees. Indeed, he concluded that were it not for the injury of

1 December 2020, there was no reason why he could not have continued working in some capacity. In the absence of expert medical opinion to that effect, I am unable to conclude that employment duties post 1 December 2020 contributed to the applicant's knee conditions. 3. As to the knee injuries themselves, I prefer the opinion of Dr Endrey-Walder that the nature and conditions of the applicant's employment over more than 30 years was the main contributing factor to the development of the bilateral osteoarthritic changes to both knee joints. Dr Endrey-Walder was of the view that the bilateral osteoarthritis of the knees was a pre-existing pathology that was significantly contributed to by the nature and conditions of his employment. Dr Coolican was of the view that that employment was not the main contributing factor to the osteoarthritis of the left knee, but did not comment on the applicant's claim for aggravation of the osteoarthritic condition of both knees. I prefer the opinion of Dr Endrey-Walder in this regard. In my view, Dr Endrey-Walder did provide his opinion in respect of both knees. There was a fair climate for him to do so, as he considered the contribution of the applicant's strenuous physical duties over many years in contributing to the arthritic condition of both knees. 4. The respondent also contended that Dr Endrey-Walder's opinion formed the basis of a claim pursuant to s 4(b)(i) of the 1987 Act. The applicant's case was framed as an aggravation claim pursuant to s 4(b)(ii). Whilst there are elements of Dr Endrey-Walder's opinion which might support the respondent's contention, on balance it seems to me that when the whole of the reports of Dr Endrey-Walder are considered, the better view is that he opined that employment made a significant contribution to the underlying pre-existing bilateral osteoarthritic condition, that is an aggravation of that condition. He did not state that those employment duties were unequivocally the cause of that condition. Indeed, Dr Coolican agreed that there had been an aggravation of underlying left knee osteoarthritis, although it had resolved in his view. 5. I find, pursuant to s 4(b)(ii) of the 1987 Act, that the applicant sustained aggravation of osteoarthritic conditions of both knees as a result of the nature and conditions of his employment with the respondent. I find that such aggravation has continued since

1 December 2020, based on the opinion of Dr Endre-Walder. 6. It was not in dispute that the applicant continued to work on restricted duties from

1 December 2020 until he ceased work on 24 April 2023. 7. The wage records of the respondent that were before me, included payment of "Workers Comp Make Up Pay" for the period from 1 December 2020. As noted above, the deemed date of injury pursuant to s 16 is accordingly 1 December 2020. I have not accepted the applicant's amendment and argument that this deemed date should be 24 April 2023, essentially argued to be on the basis that the respondent's evidence did not disclose periods of incapacity or weekly payments prior to 24 April 2023. As noted, there is some evidence of "make up pay" paid by the employer from 1 December 2020. However, there is no evidence of payments of weekly compensation by the insurer. 8. In respect of the right arm and shoulder injury on 23 April 2023:

(a) the applicant's unchallenged evidence was that following 1 December 2020, his left knee was unstable and gave way on a number of occasions, including on

23 April 2023, when his left knee gave way and he fell and injured his right arm and shoulder;

(b) Dr Coolican conceded that the left knee giving way could have resulted from the osteoarthritis, although he did not agree that this was work related;

(c) Dr Endrey-Walder was of the view that apart from the ongoing left knee pain, the applicant's most significant problem remained the frequent falls because his knee gave out on him, and

(d) there was no dispute that the applicant suffered right arm and shoulder injury on 23 April 2023 as a result of a fall after his left knee gave way,

1. I have preferred the opinion of Dr Endrey-Walder to that of Dr Coolican. Accordingly, I find that as a result of injury to the applicant's left knee on 1 December 2020, both frank injury and aggravation of a disease due to the nature and conditions of employment, the applicant suffered consequential injury to, or condition of, his right arm and shoulder.
2. As for capacity, the evidence before me indicates periods of incapacity from

1 December 2020, although such periods may not be continuous, which is a significant uncertainty for the calculation of entitlement periods for weekly compensation. 3. Further, it seems to me that the applicant has had no capacity for work since 24 April 2023:

(a) Dr Coolican in his 2024 report was of the view that there was no capacity for work;

(b) Dr Endrey-Walder in his 2024 report was also of that view, accepting the certification by Dr Wong that since the accident of April 2023 there had been no capacity for work, and

(c) accordingly, I do not accept the respondent's submissions as to capacity since

24 April 2024, or as to uncertainty as to capacity since that time in respect of the contribution of the right arm and shoulder condition.

1. I find that as a result of both frank and deemed injury on 1 December 2020, to both knees and the right arm, the applicant has had and continues to have, no capacity for work since

24 April 2023. 2. As for periods prior to 24 April 2023, Dr Endrey-Walder was of the view in March 2022 that since 1 December 2020 the applicant was incapable of doing the labour intensive work that he had performed for 31 years prior to that time. This to my mind supports a view that since

1 December 2020 there has been a period or periods of incapacity resulting in entitlement to weekly compensation, although whether this can be said to be for any period prior to

24 April 2023 is not clear from the evidence of the employer or the insurer. 3. However, as properly noted by the applicant, there is uncertainty as to what that period was or those periods were. The wage records provided by the respondent do not disclose the calculation or periods in respect of make up pay, and the insurer's list of payments disclose no period of weekly compensation being paid. 4. Further, the employer's record of earnings of the applicant does not disclose how those earnings were calculated, with references to ordinary time, RDOs, RD reversals, other leave and public holidays. 5. The applicant stated he did not receive weekly compensation because he continued to work for the respondent on restricted duties until 24 April 2023. 6. The applicant therefore sought to abandon a claim for the period prior to 24 April 2023 on the basis that this evidence is unclear and the period is probably not compensable. I understood this to mean probably not compensable in the sense of incapacity not resulting in economic loss. 7. The respondent conceded, properly, that the insurer had made payments pursuant to s 60 only. However, it was submitted that there was incapacity by way of symptoms post

1 December 2020 and that after periods of "make up pay" there was no wage loss from

28 June 2021 until 25 April 2023, although the applicant was on restricted duties in that period and it should be inferred that the employer maintained the applicant's income in that period despite his restrictions. 8. I decline to make that inference. In my view, there should be relevant evidence from the respondent, where it asserts, or at least documents, firstly "make up pay", and secondly "income maintenance", in respect of relevant periods where entitlement periods pursuant to s 36 and s 37, and subsequently s 38 where I have found no capacity from 24 April 2023, are to be ascertained. In my view, the onus changes to the respondent in this limited regard. 9. In any event, in my view the respondent has not paid the applicant weekly compensation at all, or prior to 24 April 2023. "Make up pay", as referred to in the employer's wage records, does not necessarily represent an entitlement to weekly compensation on the basis of a bare description in unclear pay records that were before me, although it is possible that it was. The question is therefore, whether for the purposes of s 32A, and hence ss 36, 37 and 38, weekly compensation was "payable to" the applicant. 10. On the evidence before me, weekly compensation was not payable to the applicant until

24 April 2023, that is following the fall on 23 April 2023. It is possible that "workers comp make up pay" may have been weekly compensation in respect of the injuries that are the subject of these proceedings, but I am unable to reach any conclusion in this regard. The better approach is to order weekly compensation pursuant to ss 36, 37 and 38 from 24 April 2023 and continuing, with credit given to the respondent and liberty to apply in respect of weekly payments paid prior to that date. 11. The respondent also submitted that an award pursuant to s 38 should not be made as it is prejudiced as it has not been given the opportunity to conduct a work capacity assessment as the applicant has not complied with s 38(3)(a), and in any event there is no medical evidence that since July 2024 there is no current work capacity as a result of injury on

1 December 2020, or as a result of the nature and conditions of employment, and there is no evidence that such lack of capacity is likely to continue indefinitely, as required by ss 38(2) and 38(3)(c). 12. I do not agree. Both Dr Coolican and Dr Endrey-Walder thought that the applicant's lack of capacity for any employment was permanent. I have found that the applicant has had, and continues to have, no capacity for work since 24 April 2023. This claim therefore falls within the provision of s 38(2), not s 38(3)(a). It was the insurer's own evidence, that is the opinion of Dr Coolican in September 2024, that the applicant had no capacity for work on a permanent basis, although I have not accepted Dr Coolican's view that this was not work related, hence the respondent in my view is not prejudiced. The applicant worked more than 15 hours per week for the respondent until 24 April 2023. The respondent had previously disputed liability to pay weekly compensation in its dispute notices, including a notice dated

6 January 2023. The respondent did not otherwise dispute jurisdiction, or an entitlement to claim s 38. 13. An award will be entered accordingly pursuant to ss 36(1) and 37(1) for the first and second entitlement periods from 24 April 2023 to 23 October 2025 and from 24 October 2025 and continuing pursuant to s 38(6). 14. PIAWE is agreed at the initial rate of $1,555.89, with indexation as outlined by the applicant. There appeared to be no dispute as to indexation. I accept the applicant's calculations of indexation.

[1] [2024] NSWCA 135 [78-80].

[2] [2014] NSWCA 166.