1. The matter be remitted to the President for referral to a Medical Assessor to assess the applicant's permanent impairment:

Body parts/system: lumbar spine; nervous system; right lower extremity (thigh and hip), and scarring (TEMSKI).

1. The documents to be sent to the Medical Assessor are:

(a) the Application to Resolve a Dispute;

(b) the Reply;

(c) Ms Skarlis' Application to Lodge Additional Documents dated 6 June 2025, and

(d) this Certificate of Determination.

1. Pauline Skarlis was employed by Southford Pty Limited (Southford) at its Murray Cod farm at Grong Grong. She suffered an injury on 7 February 2018 which resulted in a deep laceration to her right thigh. She said that she also suffered an injury to her back.
2. After a significant treatment for a serious infection, Ms Skarlis returned to work at the fish farm on a part time basis. On 25 March 2021 she suffered an injury to her lower back, as a result of which she suffered a consequential condition in her right hip because of her abnormal gait.
3. Ms Skarlis said that the second injury was suffered as a result of the first. She claims permanent impairment compensation based on the date of injury of 7 February 2018.
4. Southford denied that Ms Skarlis suffered a consequential condition in her right hip and said that she was not able to aggregate the impairments.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference and arbitration hearing on 13 June 2025 when Mr Hanrahan of counsel appeared for Ms Skarlis and Mr Pecelj of counsel appeared for Southford.
2. 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 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.

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 and attached documents (ARD);

(b) Reply, and

(c) Ms Skarlis' Application to Lodge Additional Documents dated 6 June 2025.

1. There was no oral evidence.
2. Ms Skarlis made a statement on 21 March 2025. She said that she commenced work at the fish farm in about 2016 and that her work involved a lot of manual labour, mostly in a wet environment. Before the injury, Ms Skarlis was an experienced horse rider and operated a horse training and riding business.
3. On 7 February 2018 Ms Skarlis was cleaning the filters positioned over above-ground fish tanks in the re-circulation room. She used a milk crate as a makeshift step to access a concrete platform then stood on another milk crate while cleaning the filters with a high pressure hose. The milk crate on which Ms Skarlis was standing shot out from under her and she fell to the concrete floor, impaling her right thigh on the other milk crate.
4. Ms Skarlis was admitted to Narrandera Hospital. Within 24 hours the wound became infected and she was transferred to Wagga Wagga Base Hospital. Dr Hicks undertook surgery to remove gangrenous tissue and Ms Skarlis said she was in hospital for about three weeks in Wagga Wagga then a further week in Narrandera.
5. Ms Skarlis said that the was referred to Dr Matthews for treatment of her right leg and referred to Dr Todhunter, a pain specialist, for neuropathic pain. The COVID-19 pandemic prevented Ms Skarlis receiving the scrambler treatment that Dr Todhunter recommended.
6. As a result of the fall, Ms Skarlis suffered pain and bruising in her right shoulder, right elbow, right hip and lower back. She walked with an altered gait which she said contributed to the pain in her back. Her general practitioner, Dr Pavlovskaya, referred her for a CT scan and to Dr Darwish, whom she saw on 22 February 2021.
7. After about eight months, Ms Skarlis returned to work for three days per week. She said that her duties were intended to be restricted but there were in fact no light duties.
8. On 25 March 2021 Ms Skarlis suffered a second injury when she was walking on a floating pontoon, carrying a bucket and fish net. She said that one of the plastic tiles forming the pontoon was unstable and that she lost her balance because of the weakness in her right leg. She fell, injuring her lower back.
9. An MRI scan showed a disc prolapse and Ms Skarlis underwent some CT guided injections which did not help. She was referred to Dr Fielding who recommenced surgery, which was undertaken on 30 January 2023.
10. Ms Skarlis said that the surgery improved the pain in her right leg but she continued to suffer pain in her back and pain in her right hip which became progressively worse. She had an MRI scan of her right hip on 22 August 2023. Dr Fielding recommended surgical repair which was approved and then declined by Southford's insurer.
11. Ms Skarlis provided another statement dated 2 June 2025. She said that she began to experience pain in her back after the fall on 7 February 2018 but she was more concerned about the deep laceration in her right thigh. Her back became more uncomfortable over time until she spoke to Dr Pavlovskaya in September 2020. Ms Skarlis reviewed and commented on Dr Pavlovskaya's notes.
12. On 6 February 2021, Ms Skarlis said, she attempted to ride a horse for the first time since the 2018 injury. She felt unstable and when the horse was startled, she was unable to maintain her balance and fell onto her left side. She was taken to Wagga Wagga Hospital by ambulance and discharged the same day. Ms Skarlis said that the description of the incident in the discharge summary attached to her statement is incorrect in that the fall was only 1.5 to 2m and not 5m and that the horse was at a trot and made only one sudden movement.
13. Ms Skarlis saw Dr Pavlovskaya after the fall and she did not order any additional investigations. She saw Dr Darwish on 22 February 2021 but did not undergo the investigations he recommended because of the second injury.
14. Ms Skarlis' husband also made a statement. He said that the second surgery to Ms Skarlis' right leg took over six months to heal and left her with diminished strength and mobility. Walking was painful which impacted on her gait and balance. He said that Ms Skarlis told him immediately after the 2021 injury that she fell when she lost balance on her right leg.

1. Ms Skarlis suffered a very serious laceration to her right thigh in 2018 which is accepted. There is no need to describe the treatment of that injury in detail except insofar as it describes her other injuries.
2. Dr Hicks, general and colorectal surgeon, treated Ms Skarlis in Wagga Wagga Base Hospital. On 3 May 2018 Dr Hicks considered that the wound in Ms Skarlis' right thigh had completely healed and that she was walking without difficulty. His optimism is not echoed in other evidence.
3. Dr Haasbroeck was Ms Skarlis' general practitioner at the time of the 2018 injury. On 14 August 2018 he observed numbness in the area around the wound and pain in the iliotibial tract which clicked on flexion of the knee. I understand the iliotibial band or tract to be a band of tissue running from the pelvis to the knee on the outside of the leg.
4. Ms Skarlis was referred to Dr Matthews, orthopaedic surgeon. He said in a report dated 20 August 2018 that he suspected Ms Skarlis suffered chronic regional pain syndrome as a result of the 2018 injury. He observed altered sensation distal to the wound at the level of the knee and discomfort over the iliotibial band. He recommended anti-neuropathic medication but Ms Skarlis was unable to tolerate it and he recommended treatment by a pain specialist.
5. Ms Skarlis was then referred to Dr Todhunter for pain management. He recommended scrambler treatment, a type of neurostimulation, on 28 March 2019. There is no explanation in the file as to why the treatment did not commence before the border closures as a result of the pandemic in 2020 though Dr Pavlovskaya's notes show that Ms Skarlis was waiting to hear from the pain clinic in 2019.
6. Ms Skarlis began to consult Dr Pavlovskaya as her general practitioner in 2019. On 19 June 2019 Dr Pavlovskaya noted that Ms Skarlis' pain was bad because she was working in mud. On 16 October 2019 Dr Pavlovskaya wrote that Ms Skarlis reported bad pain in her leg when she had to carry 20 kg instead of 10kg and that wearing waders aggravated her neuropathic pain.
7. On 2 September 2020 Dr Pavlovskaya requested a CT scan of Ms Skarlis' lumbar spine and pelvis.
8. Dr Pasfield reported the scan as showing:

"...Bilateral facet joint arthrosis at L5/Sl, L4/5, 13/4 particularly on the left.

At L3/4, left bony foraminal narrowing due to facet joint hypertrophy and disc bulging into left foramen. No disc protrusion. No disc degeneration.

At L4/5, bilateral facet joint hypertrophy and bony foraminal narrowing and generalised disc bulging with foraminal narrowing Mild central canal stenosis.

At L5/Sl, no foraminal narrowing. No disc protrusion.

Facet joint arthrosis in lower lumbar spine as described.

Bilateral bony foraminal narrowing at L13/4 and L4/5, being most marked on the left at L3/4. This is associated with the most advanced facet joint arthrosis on the left at L3/4.

Back pain will most likely related to the facet joint arthrosis."

1. On 13 October 2020 Dr Pavlovskaya referred Ms Skarlis for CT guided facet joint injections at L3/4. The report for that treatment shows that it may not have been undertaken until 11 August 2021.
2. Dr Pavlovskaya recorded on 17 February 2021 that Ms Skarlis fell off a horse and bruised her left arm and back.
3. On 22 February 2021 Ms Skarlis saw Dr Darwish who recorded that she presented with longstanding back pain worse in the last year or so. He noted that she worked on a fish farm and that her work was physical and involved heavy lifting. He did not elicit signs of sciatica or sensory or motor symptoms was not able to review the films of the CT scan. He recommended and MRI scan and bone scan.
4. On 31 March 2021 Dr Pavlovskaya recorded that Ms Skarlis "had another accident at work, walking on pontoons and fell through with the same leg, now in more pain".
5. Southford's insurer sought to manage the claims separately and on 1 September 2021 Dr Pavlovskaya recorded that Ms Skarlis was

"in distress due to threatening calls from case manager that she must work 3 days/week, although it is written that she has incapacity due to walking on pontoons with leg injury."

1. Dr Pavlovskaya's notes record her frustration in dealing with two case managers who were not talking to each other.
2. Dr Kafataris prepared an injury management consultation file review on 14 October 2021 and said that Ms Skarlis has an injury to her right leg and a concurrent low back claim. While Ms Skarlis was certified fit for suitable duties for 18 hours per week, Dr Pavlovskaya had recorded a back injury on a certificate dated 23 August 2021. Dr Kafataris said that he told Dr Pavlovskaya that the claims must be dealt with separately and that she was required to say that Ms Skarlis was fit to seek suitable duties in respect of her leg injury even though she was not fit because of her back. Dr Kafataris did not offer a medical opinion and his report merely reflects the way that the insurer sought to deal with two claims. It has no probative value as a medical opinion.
3. On 19 October 2021 Dr Pavlovskaya wrote that she had a telephone consultation with Dr Kafataris and

"...discussed her leg, as he was asked only to look at capacity with her leg but in the end he agreed to mention if she is incapacitated by the other injury she still can't do job seeking."

1. The general practitioners' notes do not record precisely when Ms Skarlis was referred to A/Prof Fielding. Her first report dated 30 September 2021 is addressed to Southford's insurer. She said that she had seen Ms Skarlis that day and set out a history of the injury in March 2021 and subsequent treatment. She recorded that Ms Skarlis fell through pontoons at work and fell back onto the pontoon, suffering sudden pain in the low back. At that time A/Prof Fielding recommended exercise, prescribed Lyrica. She also sought urgent approval for a CT guided epidural steroid injection to reduce inflammatory change related to L3/4 and L4/5 disc bulges with nerve root irritation which A/Prof Fielding considered were the cause of Ms Skarlis' pain.
2. A/Prof Fielding saw Ms Skarlis on 26 May 2022 and recommended surgery, being surgical decompression of the L4/5 nerve root. A/Prof Fielding also noted that Ms Skarlis experienced a "clicky feeling" in her right hip and arranged an X-ray.
3. A/Prof Fielding prepared a report dated 10 August 2022 in response to questions from Southford's insurer about the need for the surgery and a report to Icare dated 26 September 2022 confirming that the anticipated outcome of the surgery was to improve sciatica.
4. The surgery to Ms Skarlis' back was performed on 30 January 2023.
5. A/Prof Fielding prepared a report for Ms Skarlis' solicitors on 22 June 2023 and said that Ms Skarlis:

"..sustained two injuries at work as per your letter dated 23 March 2023. I believe that Mrs Skarlis injured her back when she fell through the pontoon at work on 7 February 2018. Unfortunately, she had a distracting injury, which was the significant injury to the right leg, and thereby the back injury was not significantly noted at the time, but obviously would have been further exacerbated by the second injury on 25 March 2021. Apparently, Mrs Skarlis had complained of significant back pain prior to the second injury, that is, after the first injury, but this complaint had not been acted upon."

1. Ms Skarlis saw Dr Sheehy, neurosurgeon, at the request of Southford's insurer. He prepared a report dated 19 August 2022. Ms Skarlis relies on the report but Southford does not.
2. Dr Sheehy set out the history he obtained:

"Ms Skarlis told me of an injury which occurred in 2018 when she fell from a height onto milk crates, with the development of a serious laceration in her right anterior thigh and development of low back pain. She developed an infection in the laceration and required a considerable amount of management before the wound was healed and she has been left with residual hypoaesthesia and sensitivity to touch in the area of the wound. The low back pain which developed at the time of the injury in 2018 continued but was not of such severity that she was not able to return to her work on the farm.

She was undertaking full-time, full duties at the time of the second injury that occurred in March 2021 at Hongrong [sic]. She fell backwards on a pontoon, having lost her balance, and landed with one leg extending between the pontoons and her back landing on the pontoon. She had an increase in low back pain.

The back pain became more of a problem after the 2018 injury when her walking was affected as she recovered from the laceration of the right thigh. It was the events of 2021 with the fall on the pontoon that significantly aggravated her back. She has not been able to work since that time."

1. Dr Sheehy accepted that Ms Skarlis suffered an injury to her back in 2018. He noted that the CT scan report did not describe nerve root compression. He was not provided with the MRI scan report that Dr Fielding referred to in her report dated 30 September 2021 and considered that a bone scan would assist in establishing whether the diagnosis was more than a soft tissue injury.
2. Dr Endrey-Walder, general and trauma surgeon, saw Ms Skarlis at the request of her solicitors and reported on 8 November 2023. Dr Endrey-Walder set out a history of the injuries and treatment. He provided a detailed summary of his examination. He observed marked, well localised tenderness over the greater trochanter on the right, though there was a reasonable range of motion of both hips.
3. Dr Endrey-Walder accepted that Ms Skarlis injured her back in 2018. He said that the second injury occurred:

"On 25 March 2021 while walking on the floating pontoon, carrying a bucket and fishnet in her hands, she lost balance on her injured right leg, 'the pontoon was uneven, had a depression in it' she recalled."

1. Later in the report Dr Endrey-Walder described the injury as a heavy fall aggravating Ms Skarlis' low back as a result of losing her balance on a pontoon when her right leg was not supporting her. He agreed with Dr Fielding that the back injury occurred in 2018 and was exacerbated by the fall in 2021, which likely precipitated sciatica. Dr Endrey-Walder said that the MRI scan of the right hip showed pathology relating to the gluteal muscles and right trochanteric bursitis, for which Ms Skarlis should be seen by an orthopaedic surgeon. He saw an MRI scan dated 22 August 2023 which does not appear in the file which:

"reported linear intra-substance tear and a small narrow posterior full thickness tear of the gluteus minimus tendon, probably a narrow linear tear of the gluteus medius, increased uptake at the right greater trochanter suggestive of active bursitis."

1. Dr Endrey-Walder said that Ms Skarlis told him that her right leg is not as strong as her left and she thinks this is what caused the fall on the pontoon. He accepted that statement.
2. Dr Endrey-Walder also said that Ms Skarlis had:

"Significant ongoing back pain and pain at the right hip had recently resulted in the MRI scan of the hip which suggested pathology that would relate to the gluteal muscles and right trochanteric bursitis for which she should have attention from an Orthopaedic Surgeon."

1. Dr Endrey-Walder assessed 12% whole person impairment (WPI) in respect of Ms Skarlis' lumbar spine, femoral anterior cutaneous nerve and right greater trochanteric bursitis.
2. In a further report dated 8 July 2024, Dr Endrey-Walder amended his assessment to include 2% WPI for scarring in respect of Ms Skarlis' scarring of her right leg and back. He included a loading for the impact of the low back injury on the activities of daily living and amended his total assessment to 19% WPI. Dr Endrey-Walder assessed all of the injuries together.
3. Southford relied on a report by Dr Machart, orthopaedic surgeon, dated 5 December 2024. He was provided with two additional reports from Dr Sheehy dated before and after that described above and a report of Dr Miniter which is not relied on. Dr Machart described an injury to Ms Skarlis' right thigh on 7 February 2018 and an injury to her back on 25 January 2021. He examined her right thigh, hip and lumbar spine and provided brief examination findings. He commented on other reports including that of Dr Endrey-Walder and said:

"Doctor compiled all WPIs at 19% and did not distinguish between impact of the 2 injuries. It is not clear why the 2 were accumulated, noting that there were 2 separate injuries."

1. Dr Machart's examination findings in respect of Ms Skarlis' right hip were:

"Right Hip. Tender greater trochanter. Limp. Full movement. Difficult ambulation. No sciatic symptoms."

1. Dr Machart's diagnosis for the 2018 injury was a laceration to the right thigh which caused a large scar, hypersensitivity to the peripheral nerve, trochanteric bursitis and weakness in the quadriceps. His diagnosis for the 2021 injury was a disc injury to the lumbar spine.
2. Dr Machart went on to provide brief answers to a series of questions referring back to his history and diagnosis. He said:

"I found evidence of trochanteric bursitis, difficult to relate it to one or the other injury. My impression is that it is more likely to be linked to the first. The second was complicated by sciatic symptoms from the spine. The direct injury to the right thigh is more likely to be causing trochanteric bursitis."

1. Dr Machart assessed 12% lower extremity impairment (LEI) for the weakness in Ms Skarlis' right quadriceps, 7% LEI for the injury to the lateral cutaneous nerve and 7% LEI for trochanteric bursitis by reference to Table 17-33 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). He combined those figures to reach 10% WPI. He also assessed 2% WPI for scarring but did not combine that figure with those for the lower extremity. He said:

"I did not find evidence of lumbar spine injury continuing. Healed, 0% WPI."

1. That comment is puzzling when there is no reference to a lumbar spine injury in 2018 earlier in his report. The reference to a healed injury could imply that Dr Machart accepted that there may have been an injury in the past.
2. Dr Machart omitted his assessment for scarring from the total. He combined the assessments of 12%, 7% and 7% to reach 24% LEI or 10% WPI. If he had combined that figure with the 2% he assessed for scarring, his assessment was 12% WPI as a result of the 2018 injury.
3. Dr Machart assessed 12% WPI arising from the lumbar spine in respect of the 2021 injury. The form of his report shows that he was asked to assess "Right hip (consequential) (if you consider there was a consequential condition)". Dr Machart respondent "Not evident."
4. The file does not include the letter of instructions to Dr Machart though he set out the questions asked of him which refer to two separate dates of injury. The report does not show that he was asked to consider if the second injury was a result of the first. His comment about Dr Endrey-Walder's report suggests that he was not asked to consider if that was so.

1. The only decision notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is dated 29 January 2025 and responds to the permanent impairment compensation claim. The notice identified that Ms Skarlis suffered an injury on 7 February 2018, which resulted in a thigh laceration and trochanteric bursitis which was accepted, and an injury on 25 March 2021 to her lumbar spine. The notice disputed that Ms Skarlis suffered more than 10% permanent impairment.
2. The notice summarised Dr Machart's opinion, and said that he considered that Ms Skarlis had suffered a thigh laceration and trochanteric bursitis in the 2018 injury. He considered that she suffered injury to her lumbar spine in 2021 and did not suffer a consequential condition in her right hip. It said that the impairments could not be assessed together but did not explain why that was the case.

1. The submissions of counsel were recorded and I will summarise them.
2. Mr Hanrahan took me through the medical evidence in the file with respect to the first injury in chronological order and said that the laceration to Ms Skarlis' right thigh means that she must have fallen onto her right side and it was consistent with there being an injury to her right hip. Mr Hanrahan noted that Ms Skarlis suffered some cuts and bruising on her right side including in her shoulder and elbow which later recovered. The injury to her right leg resulted in extreme discomfort and Ms Skarlis was referred to Dr Matthews with suspected chronic regional pain syndrome, which Dr Matthews diagnosed as neuropathic pain.
3. Mr Hanrahan said that Ms Skarlis' evidence about the amelioration of the pain in her shoulder and elbow gave credence to her evidence that ongoing pain in her back and right hip which worsened over time and impacted on her gait. There was clear evidence of pain before the second injury, leading to investigations and injections in October 2020 and January 2021 and a consultation with Dr Darwish who recommended investigations.
4. Dr Machart, Mr Hanrahan said, accepted that Ms Skarlis suffered a problem with her right hip as a result of the first injury.
5. Mr Hanrahan said first injury made a material contribution to the mechanics of the second. Had it not been for the instability of her right leg and affected gait which impacted on Ms Skarlis' balance, the second may not have occurred. It occurred because he was walking on an unstable pontoon, carrying a bucket of fish in one hand and netting on the other. Ms Skarlis' opinion as to the cause of the second injury was supported by Dr Endrey-Walder and A/Prof Fielding. Both agreed that Ms Skarlis' pre-existing back injury was exacerbated by the second injury, as did Dr Sheehy. Mr Hanrahan said Ms Skarlis was vulnerable to a second injury and it was almost inevitable that it happened.
6. Mr Pecelj made very brief submissions, which were effectively a series of "dot points". None of his submissions were developed.
7. He said that Southford's case was that Ms Skarlis had suffered two separate injuries. Referring to Kooragang Cement Ltd v Bates,[1] Mr Pecelj highlighted Kirby P's statement with respect to expert opinion and summarised Dr Machart's opinion. He said that consideration should be given to Dr Machart's expertise as an orthopaedic surgeon and his opinion should be preferred over Dr Endrey-Walder who is a general and trauma surgeon. He said that Ms Skarlis bore the onus of proof.
8. I asked Mr Pecelj if he sought to refer to any other authorities and whether the decision in cases such as Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes[2] (Barnes) was relevant to my determination, but he did not take me to any authorities.
9. In reply, or by way of further submissions, Mr Hanrahan referred to State Government Insurance Commission v Oakley[3] (Oakley) and said that Ms Skarlis' case fell within both the first and second categories referred to in the decision.
10. Mr Pecelj said that Ms Skarlis' case fell within the third category in Oakley, without offering further explanation.

1. There is no dispute that Ms Skarlis suffered an injury to her right thigh on 7 February 2018, which should be assessed by a Medical Assessor.

1. There is also no dispute that Ms Skarlis suffered an injury to her back on 25 March 2021 but Southford disputes that she suffered a back injury in 2018. The basis for the submission that Ms Skarlis did not suffer an injury to her lumbar spine is in Dr Machart's report.
2. Before turning to Dr Machart's report, I note that Ms Skarlis said that she suffered back pain from the time of the 2018 injury. It is not surprising, given the nature of the injury. She said that it became worse over time as a result of her altered gait. Her husband confirmed that she walked with an altered gait.
3. The evidence shows that Ms Skarlis complained of back pain before the date of the second injury. She saw Dr Pavlovskaya and was referred to Dr Darwish who obtained a history that she had a longstanding history of back pain, which had worsened in the last year. He noted that she performed heavy work at the fish farm. He was aware that a CT scan showed degenerative changes at L3/4. Dr Darwish recommended further investigations which were not undertaken before the second injury.
4. The relevance of Dr Darwish's report is the support of the complaint of pain before the second injury. As a treating doctor, providing an initial report to Ms Skarlis' general practitioner, Dr Darwish was more likely to be concerned with treatment rather than causation and no adverse inference should be drawn from the lack of reference to the 2018 injury.[4]
5. Dr Sheehy saw Ms Skarlis after the second injury. On the basis of the history he obtained, Dr Sheehy accepted that she suffered low back pain from the first injury which did not prevent her returning to work. He also accepted that the altered gait after the first injury contributed but that the condition was significantly aggravated in 2021.
6. Dr Endrey-Walder also accepted that Ms Skarlis suffered a back injury in 2018.
7. When asked, A/Prof Fielding agreed that Ms Skarlis suffered an injury to her back in 2018.
8. The only evidence to the contrary is Dr Machart's report which provides brief answers to a series of questions. His report does not fulfil the requirements for expert evidence set out in (among other cases) South Western Sydney Area Health Service v Edmonds[5] (Edmonds) where McColl JA said:

"In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that '[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it_'._ In so saying, I referred with approval (inter alia) to Heydon JA's analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] - [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper's statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:

'... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.'

This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that '[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary' (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be 'logical and probative' and 'unqualified opinions are unacceptable'.

In my view Dr Rivett's statement that 'in general all the problems are work-related' which the Arbitrator accepted in concluding that the respondent's duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator."

1. Dr Machart's unexplained opinion is a series of "bare ipse dixits."
2. Dr Machart's opinion is also difficult to accept because he said at the end of his report that any lumbar spine injury from the first injury was "healed". He did not accept that there was any such injury "continuing." The statement is confusing when he did not identify such an injury earlier in his report. In the absence of an explanation of his opinion, Dr Machart's opinion with respect to whether Ms Skarlis suffered a back injury in 2018 is not probative and cannot be accepted.
3. Dr Kafataris' report is of no assistance on this issue and it merely reflects Southford's insurer's intention that the claims be kept separate.
4. I find that Ms Skarlis did suffer an injury to her low back in 2018 which was significantly aggravated in 2021.

1. As the case was argued before me, Southford said that Ms Skarlis did not suffer a consequential condition in her right hip at all. A careful examination of the documents shows that Southford's position in the s 78 notice is that Ms Skarlis did not suffer a consequential condition as a result of the 2021 injury to her low back.
2. Dr Machart accepted that Ms Skarlis suffered trochanteric bursitis as a result of the 2018 injury. He set out his examination findings in respect of Ms Skarlis' right hip noting that she was tender over the greater trochanter, being the outer bony prominence of the femur. He diagnosed trochanteric bursitis and assessed it under Table 17-33 of AMA 5. Under that Table, trochanteric bursitis is assessed as an impairment of the hip.
3. When Dr Machart's assessment is properly combined, it is that Ms Skarlis suffered 12% WPI in respect of the 2018 injury.
4. Dr Machart said that Ms Skarlis did not suffer a consequential condition of her right hip in 2021 but did not offer any explanation.
5. The passage in Kooragang to which Mr Pecelj referred is where Kirby P said:[6]

"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."

1. Kirby P did not say that the commonsense evaluation of causation required expert evidence but that such opinions may be applicable. In any event, there is no explanation in Dr Machart's report for his opinion that there was no consequential condition as a result of the 2021 injury. His qualification as an orthopaedic surgeon does not endow his opinion with greater weight than that of Dr Endrey-Walder, who has provided reports in this jurisdiction and its predecessors for many years, and who has explained his conclusion.
2. I accept Dr Machart's evidence that Ms Skarlis suffered trochanteric bursitis as a result of the fall in 2018.
3. The evidence of Dr Endrey-Walder and Ms Skarlis is that active treatment for trochanteric bursitis has been recommended since the 2021 injury. Ms Skarlis said that the pain in her hip has become progressively worse. She said that surgery was recommended and denied. That recommendation for surgery, instead of the conservative treatment provided before the 2021 injury, confirms that the condition has become worse over time. Her husband supports her evidence that she walks with an altered gait.
4. I find that Ms Skarlis suffered an injury to her hip in the form of trochanteric bursitis in the 2018 injury which has been aggravated since the 2021 injury.

1. Southford did not provide a legislative basis for its submission that the injuries should be assessed separately. Counsel's submissions did not engage with the legislation about the assessment of impairment.
2. Section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

1. Section 322A (1) provides that only one assessment may be made of the degree of permanent impairment of a worker.
2. Ms Skarlis nominated 7 February 2018 as the date of injury in the ARD and said that the injury in 2021 occurred as a result of the 2018 injury so that they should be assessed together. Dr Endrey-Walder supported that argument. Ms Skarlis sought only one assessment of permanent impairment.
3. In Barnes, Roche DP considered a case where a worker suffered three injuries to her lumbar spine but sought only one assessment of impairment based on an assessment of WPI which was attributed to the combined effect of three incidents. Roche DP said:[7]

"The word 'injury', as used in the 1987 Act, can have two, possibly three meanings: the injurious event, the pathology and, possibly, injury meaning 'condition' (Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at [33]). The sense in which the term 'injury' is used will depend on its context (Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at [73]). In a claim for lump sum compensation under s 66, the context is a claim for lump sum compensation for the whole person impairment that has resulted from the relevant pathology that has resulted from the particular work incident upon which the worker has sued. The authorities are clear that, in context, the relevant 'injury' in s 66 is the pathology.

As was explained by Giles JA (Hodgson JA and Brownie AJA agreeing) in Wyong Shire Council v Paterson [2005] NSWCA 74 at [38], the description of how the injury was received, for example, due to a frank injury or due to repetitive activities (often, though unhelpfully, referred to as a 'nature and conditions claim') 'are descriptions of mechanisms for suffering an injury'. In other words, an 'incident' (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant 'injury' in s 4 is therefore the pathology that has arisen out of or been received in the course of the employment.

Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 held that a 'personal injury' is 'a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state'. The cause of the injury (the injurious event) is "not the important matter" (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable. (Obviously, however, the cause of the injury, and the circumstances in which it is received, will be important in determining if the injury was received in circumstances giving rise to an entitlement to compensation under the legislation. His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences.)"

1. Roche DP held that there was no error in the Arbitrator's decision to refer the assessment of impairment of Ms Barnes' lumbar spine in relation to three dates of injury. If the worker had suffered only one pathology in three incidents, it may be open to find that she suffered only one injury.
2. I accept that the 2018 injury materially contributed to the 2021 injury. Ms Skarlis had returned to work after the first injury, working on reduced hours. The contemporaneous evidence in Dr Pavlovskaya's notes is that she fell through the pontoon on the same leg. It is consistent with Ms Skarlis' evidence and supported Dr Endrey-Walder and A/Prof Fielding. I accept that the pontoon was uneven and that Ms Skarlis lost her balance while carrying a heavy bucket of fish in one hand and a net in the other.
3. The treatment undertaken to Ms Skarlis' back after the second injury was at the same level as identified by Dr Pavlovskaya as requiring investigation and treatment after the first. Dr Sheehy also accepted that Ms Skarlis injured her back in both incidents.
4. In Oakley Malcolm CJ in the Supreme Court of Western Australia set out three categories in which determination of the issue of causation requires consideration of the effect of a subsequent injury. The principles were applied in a workers compensation context in Secretary, New South Wales Department of Education v Johnson[8] (Johnson) where Simpson AJA said:[9]

"... the appellant invoked, and placed heavy reliance on, the decision of Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003. In that case, the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury (or, perhaps more accurately, the assessment of damages consequential upon an earlier injury). The observations were made in the context of proceedings at common law in which negligence is alleged, but are equally applicable to the assessment of the degree of permanent impairment resulting from injury under no-fault legislation such as the WC Act. His Honour identified the three categories as:

'(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.' "

1. In Johnson, Emmett AJA, with whom Macfarlane JA agreed, said:[10]

"Two causation tests are involved in a medical assessment of permanent impairment under Pt 7 of Ch 7 of the Management Act. The first test arises from the provisions of ss 9 and 9A of Compensation Act. That is to say, it must be shown that the injury that gave rise to the impairment in question arose out of or in the course of employment that and that the employment was a substantial contributing factor to the injury. The second test arises from the provisions of ss 319(c) and 326(1)(a) of the Management Act. That is to say, it must be shown that the permanent impairment is as a result of the injury.

The phrase 'the degree of permanent impairment of the person as a result of an injury' appears in both ss 319(c) and s 326(1)(a) of the Management Act. That composite phrase requires an enquiry as to the causal connection between the degree, or percentage, of assessed permanent impairment of a worker, on the one hand, and the compensable injury, on the other. That is to say, it was necessary for the AMS and the Appeal Panel to assess the degree, or percentage, of whole person impairment of the Worker that was caused by or is attributable to the First Injury. In doing so, common law principles of causation in tort are to be applied.' "

1. Those principles were applied in Ozcan v Macarthur Disability Services Ltd,[11] where a worker had suffered an injury in 2011 to her lumbar spine, thoracic spine and right shoulder. She suffered two further injuries to her lumbar spine and thoracic spine in 2012. A Presidential Member of the Workers Compensation Commission held that the right shoulder injury did not materially contribute to the impairments to the lumbar and thoracic spine and was not the same pathology so that it could not be assessed with those injuries. Macfarlane JA said:

"First, Ms Ozcan submitted that the Deputy President was correct to add the WPI percentages referable to the thoracic and lumbar spine injuries suffered in the second and third incidents to those suffered in the first incident because those subsequent injuries were materially contributed to by the spinal injuries suffered in the first incident. As the Deputy President held (at [129]-[130]), this causal connection placed the injuries in the second category described in State Government Insurance Commission v Oakley (1990) 10 MVR 570 at 573. That second category was identified in Oakley as one 'where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury [with the result that] the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence'(at 573). This approach is simply an application of s 65(1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which 'results' from the injury in question and s 65(2) which requires injuries 'arising out of the same incident ... to be treated as one injury ...'.

Secondly Ms Ozcan argued that, in these circumstances, it was clear that both the right shoulder injury and the thoracic and lumbar spinal injuries 'resulted from' and 'arose out of' the first incident: the first spinal injuries and the shoulder injury admittedly did so and the effect of the first step in Ms Ozcan's argument (see [14] above) was that the spinal injuries suffered in the second and third incidents also did so. In consequence, they should all have been "treated as one injury" and "assessed together", as directed by s 65(2) of the 1987 Act and s 322(3) of the 1998 Act, leading to a 15% WPI finding.

The Deputy President reached a different conclusion because she found that the right shoulder injury 'did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology)' (see [145] and [150] quoted in [11] above). This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011."

"Section 65(2) of the 1987 Act is to the same effect as s 322(3) of the 1998 Act - under the former, injuries arising out of the same incident are to be treated as one injury and under the latter, impairments resulting from more than one injury arising out of the same incident are to be assessed together."

1. Counsel did not address in any detail as to which of the categories in Oakley applied. I consider that the medical evidence supports the finding that it is the first, because the second injury occurred when Ms Skarlis' injured right leg was unable to support her on the uneven pontoon, causing her to lose her balance and suffer a further injury to her back and her right hip.
2. For those reasons, the assessment should be referred to a Medical Assessor with the date of injury of 7 February 2018, being the date of the first injury and that relied on in the ARD.
3. I therefore remit the matter to the President for referral to a Medical Assessor to assess the applicant's permanent impairment:

1. The documents to be sent to the Medical Assessor are the ARD, the Reply, Ms Skarlis' Application to Lodge Additional Documents dated 6 June 2025 and a copy of this Certificate of Determination.

[1] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 at [461G].

[2] [2015] NSWWCCPD 35.

[3] (1990) 10 MVR 570.

[4] Mason v Demasi [2009] NSWCA 227 at [2].

[5] [2007] NSWCA 16 at [130]- [132].

[8] [2019] NSWCA 321.

[11] [2021] NSWCA 56.