1. The applicant claims payment for proposed surgery to his left knee.
2. Kennards Hire Pty Ltd (the respondent) denies that the applicant's current need for surgery is related to his accident on 14 September 2022 or, in the alternative, that is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. Mr McManamey of counsel, instructed by Sarah King of Law Partners, appeared for the applicant. Mr Hanrahan of counsel, instructed by Mr Bisceciv of Turks Legal, appeared for the respondent.
2. I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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.
3. The respondent objected to the tender by the applicant of the report of Dr Breit, Independent Medical Examiner (IME), dated 21 May 2025[1] pursuant to Part 9 Rules 43 and 44 of the Workers Compensation Regulations.
4. Dr Breit was an IME arranged by the respondent and his report was served upon the applicant. The applicant's solicitor reserved the report on the respondent.
5. The respondent submitted that the Personal Injury Commission (Commission) could admit the reports of Dr Hopcroft, IME for the applicant, dated 18 July 2023[2] and 29 July 2025,[3] or that of Dr Breit, but not both.
6. Applicant's counsel submitted that, if the Commission disallowed the admission of Dr Breit's report, it would object to the tender of the report of Dr Smith, IME for the respondent, dated 22 April 2024. The objection was made on the basis that Dr Smith had extracted history from and commented on the report of Dr Breit.
7. Dr Smith had not re-examined the applicant before reading and considering the report of Dr Breit.
8. In response, respondent's counsel proposed that Dr Smith's report be admitted but not relied on except as to the history obtained by Dr Breit and commented on by Dr Smith.
9. The admission of Dr Breit's report was refused.
10. It was determined by the Commission that Dr Smith's latest report would be admitted but that any of Dr Smith's commentary arising from a consideration of Dr Breit's report should be excluded from the Commissions consideration.

1. There was no oral evidence.
2. There was no application to adduce oral evidence or cross-examine the applicant or any other witnesses as to any factual dispute before the Commission.
3. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attachments, and

(b) Reply to ARD (Reply) and attachments.

1. The applicant injured his left knee on 14 September 2022 in the course of his employment with the respondent. The applicant's treating surgeon Dr Mathew Broadbent proposed a left knee arthroscopy. This was also supported by his general practitioner Dr Sinha as well as Dr Hopcroft, IME.
2. On 18 July 2023 Dr Hopcroft examined the applicant. In the body of that report he provided a review of the report of Dr Smith. He had before him a number of documents including X-ray and MRI reports, reports of Dr Smith dated 15 December 2022 and 5 April 2023, a report from Dr Sinha and a report from Dr Matthew Broadhead. He found that:

"Mr Nelson suffered a wrenching injury of his left knee joint in the work-related activities of 14 September 2022 and comparative MRI scans of his left knee taken before and after that event shows that he developed a posterior medial meniscal tear as a result of the injury of 14 September 2022, and was offered arthroscopic repair of it by his treating orthopaedic surgeon, Dr Matthew Broadhead.

There is no suggestion that he has significant pre-existent osteoarthritis in his left knee joint that would require knee joint replacement surgery, and I believe without arthroscopic medial meniscal debridement he will have accelerated problems in his left knee joint.

Unfortunately, the independent medical examiner, Dr Anthony Smith, failed to register a pre-injury and post-injury MRI scan where the latter of those two confirmed the acute medial allmeniscal tear that dates from the time of his injury on 14 September 2022.

It is my opinion there is a direct relationship between the condition found on examination and the injury suffered on 14 September 2022.

That injury has aggravated some very minor osteoarthritis in his left knee joint which is unlikely ever to necessitate his requirement to undergo total knee replacement surgery.

The workers compensation insurer is obviously making an error in not considering that the injury of 14 September 2022 clearly caused the medial meniscal tear, and his employment was the main and substantial contributing factor to his injury.

The report of Dr Anthony Smith is erroneous for the reasons indicated.

Treatment and investigations to date have been both reasonable and necessary.

The surgery proposed by Dr Matthew Broadhead (following referral to that specialist by his general practitioner, Dr Sinha, is reasonably necessary, and I believe essential.

In the lead up to and post surgery Mr Nelson simply needs to undertake a program of

quadriceps exercising and should do very well from arthroscopic medial meniscal

After that Mr Nelson will require one review by his treating orthopaedic surgeon, and will simply need to maintain the muscle tone of both lower limbs into the future, having already had a total knee replacement on the right side."

1. The respondent's insurer denied liability on 14 September 2022[4] on the following basis:

"We do not agree that you are entitled to weekly payments and medical or related treatment for your accepted left knee injury because you do not have total or partial incapacity for work resulting from that injury as required by section 33 of the Workers Compensation Act 1987 (1987 Act) and because any claimed medical or related treatment is not reasonably necessary as a result of that injury as required by sections 59 and 60 of the 1987. Act.

In the alternative, we dispute your recent claim for left knee surgery on the basis that it is not reasonably necessary as a result of your accepted left knee injury as required by sections 59 and 60 of the1987.

We accept that an incident at work on 14 September 2022 temporarily aggravated a pre-existing left knee condition.

In 2022, you lodged a claim for left knee surgery specifically a left knee arthroscopy and partial medial meniscectomy on the recommendation of Dr Matthew Broadhead.

Based on the views of Dr Anthony Smith, GIO originally disputed the claim for left knee surgery then GIO disputed outright your claim of a left knee injury. In response to a review request by you, icare issued a section 287A notice which accepted your sustained a left knee injury but icare agreed with and maintained GIO's dispute of your claim for left knee surgery.

In PIC proceedings W7404 of 2023 (the 2023 proceedings), you claimed the left knee surgery proposed by Dr Broadhead. During the teleconference in the 2023 proceedings on 10 November 2023, you agreed to discontinue the proceedings in exchange for GIO agreeing to finance the left knee surgery.

It is our understanding that, on the day of the proposed left knee surgery in December 2023 and after you been prepped for the left knee surgery, Dr Broadhead asked you if your left knee had been symptomatic to which you responded that it had not. You agreed that the surgery be cancelled based on Dr Broadhead's recommendation that it should not proceed in those circumstances (no symptoms).

More recently, Dr Broadhead has proposed the same surgery be performed.

In his report dated 21 January 2025, Dr Robert Breit seems to be of the view that the left knee surgery is reasonably necessary as a result of the incident in 14 September 2022. We consider Dr Breit to be a highly respected expert in his field however we consider the probative value of his report in this case to be significantly damaged because he appears to be under the impression that the PIC made a finding in your favour with respect to the claim for left knee surgery which is not the case.

In his report to GIO dated 12 February 2025 in response to GIO's questionnaire, Dr Broadhead expresses the view that the need for left knee surgery is due to your current work as a carer which, according to Dr Breit, can involve you walking up to 19 kms in a single shift. Dr Broadhead opines that excessive walking exacerbates your left knee symptoms.

In his supplementary report dated 22 April 2025, which we accept in its entirety, Dr Smith opines that the incident on 14 September 2022 temporarily aggravated pre-existing left knee issues and that you would have recovered from that incident within a week at the most. He also expresses the alternative view that your left knee injury had recovered by December 2023 when you told Dr Broadhead that you had no symptoms and that your claimed current symptoms must therefore be due to another cause.

Based primarily on the views of Dr Smith and Dr Broadhead, we have decided to dispute liability for your ongoing entitlements (including the left knee surgery) on the basis you have fully recovered from the incident on 14 September 2022.

In the alternative, we dispute that your claim for left knee surgery is reasonably necessary as a result of or in any way connected to the incident on 14 September 2022."

1. I am persuaded by the report of Dr Hopcroft that the applicant's need for surgery on his left knee is related to his workplace injury on 14 September 2022.
2. I am also persuaded and find that the proposed surgery is both reasonable and necessary in circumstances of this application.
3. I am not persuaded from that position by the fact that the applicant previously delayed his surgery in a period when he was symptom-free. It was a cautious approach. Even though he had an agreement to pay for the surgery he delayed having it in a symptom-free period.

1. For the reasons set out above I will make the findings and orders as set out on page 1 of the Certificate of Determination.

[1] Application to Resolve a Dispute (ARD) page 50.