(a) this Certificate of Determination and Statement of Reasons;

(b) Application to Resolve a Dispute and attachments;

(c) Reply and attachments;

(d) applicant's Application to Lodge Additional Documents dated 15 May 2025 and attachments, and

(e) respondent's Application to Lodge Additional Documents dated 18 June 2025 and attachments.

1. On 24 October 2019, Leonie Stemp (the applicant) was working as a merchandiser in the course of her employment with the respondent, Strike Force Amc Pty ltd when she suffered an injury to her right knee.
2. The applicant's right knee injury is not disputed, nor is the fact she set about a long course of conservative treatment before submitting to a right knee arthroscopy at the hands of her treating surgeon, Dr Herald on 12 March 2021. Thereafter, the applicant tried a further extensive period of rehabilitation, however, her condition did not resolve, and she eventually underwent a right total knee replacement at the hands of Dr Herald on 24 November 2023.
3. In addition to the accepted right knee injury and consequential surgical scarring, the applicant claims she suffered consequential conditions in her right hip and lumbar spine as a result of a persistent limp which she developed after her injury.
4. The respondent denies liability in respect of the consequential conditions to the right hip and lumbar spine. It is this dispute which is before the Commission.

1. The only issue in dispute is whether the applicant suffered consequential conditions to her lumbar spine and/or right hip as a result of her injury.
2. The parties agree that in the event of an award for the respondent in relation to the consequential conditions in dispute, the applicant will nevertheless be referred for medical assessment with respect to her right knee and scarring consequent upon surgery.
3. In the event the applicant succeeds on the liability question in relation to the consequential conditions, her lumbar spine and right lower extremity (hip) will also be referred for medical assessment.

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 parties attended a hearing before me on 24 June 2025. At the hearing, the applicant was represented by Mr Joseph of counsel instructed by Mr Gabriel. The respondent was represented by Mr Doak of counsel, instructed by Ms Hottes.

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

(a) Application to Resolve a Dispute (the Application);

(b) Reply;

(c) applicant's Application to Lodge Additional Documents (ALAD) dated

15 May 2025 and attachments, and

(d) respondent's ALAD dated 18 June 2025 and attachments.

1. There was not oral evidence called at the hearing.

Consequential conditions to the lumbar spine and right hip

1. The applicant carries the onus of proving her alleged lumbar spine and right hip conditions arose as a result of her work-related injury.
2. The question of the aetiology of a condition in a case such as the present is a question of causation.
3. The parties each referred the Commission to the oft-cited decision of his Honour Kirby P (as he then was) Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang).
4. The parties were in agreement that the question of causation involves a commonsense evaluation of the causal chain, taking into account all of the evidence, both lay and expert.
5. For the applicant, Mr Joseph submitted the evidence satisfied the test in Kooragang, whereas for the respondent, Mr Doak submitted a commonsense evaluation of the evidence would lead to a finding the applicant had not discharged the onus of proof, as the medical evidence on which she relies falls short of establishing the requisite causal connection.
6. A somewhat complicating factor in the present matter is the disclosure in the treating material that the applicant had pre-existing issues in her right hip, together with occasional lumbar spine pain. There is no question the applicant presented to her treating doctors relatively consistently from time to time for treatment to her right hip in the years leading up to her work-related injury.
7. The applicant's consistent evidence did not shy away from her pre-existing problems, however, some of the medical evidence in the matter did not reference them. What is apparent from the treating material is the applicant had pre-existing bursitis in her right hip, which is consistent with the condition demonstrated on relevant radiological scans after the injury at issue.
8. The applicant alleges her right hip and lumbar spine were the subject of consequential conditions caused by the injury to her right knee as a result of her consistently walking with a limp for many years until her right total knee replacement. In her statement, after setting out the circumstances of the injury and the treatment she has undergone to her right knee, the applicant stated;

"33. As a result of my constant limp, I have developed lumbar spine muscular pain as well as hip bursitis. Synvic (x2) were administered on 4 April 2022 in attempts to improve my knee pain. However, the pain relief was only temporary."

1. The applicant consulted Dr Herald, treating surgeon, in relation to her right knee on 21 October 2020. In her statement, she deposes to developing symptoms in her lumbar spine and right hip in or about 2021, which she reported to Dr Herald. The applicant stated "I believe the symptoms in my lower back and right hip were due to the altered gait caused by the injury to the right knee".
2. Before embarking on a detailed examination of the relevant evidence, it is important at the outset to establish the relevant test for determining the presence of a consequential condition. This is particularly so where there was clearly pre-existing pathology in the affected body parts at issue.
3. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether an injured worker's shoulder condition resulted from mobilising whilst recuperating from an accepted back injury.
4. At [35] and following, Roche DP stated:

"35. By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar's claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder."

1. The Deputy President then referred to the facts of Kooragang and to the judgement of Kirby P (as he then was):

"Kirby P said (at 461G) (Sheller and Powell JJA agreeing) that 'From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate'. After referring to earlier English authorities, his Honour added:

Since that time, it has been well recognised in this jurisdiction that an injury can sit 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 opened to the compensation Court to award compensation under the Act...'

His Honour concluded that the Court was left with 'an unbroken chain of undisputed evidence'. In combination, the facts went 'beyond mere predisposing circumstances'. They combined to make it 'proper to reach the conclusion that the death of the worker 'resulted from' his original injury and all of the consequences which set it in train'. His Honour did not find that the heart attack was a s 4 injury but confirmed the trial judge's finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981'."

1. At [55] in Kumar the Deputy President noted:

"It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace's opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.

1. In Moon v Conmah Pty Ltd [2009] NSWWCCP 134 (Moon) Roche DP at [44] and following, stated:

"44. The evidence in support of [the allegation of a consequential condition] is brief, but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder.

1. 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 s 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. In addition to her statement evidence, the applicant relied on the medical opinions of her treating surgeon. In a report dated 16 December 2022, Dr Herald set out the history of his treatment of the applicant, which dated from 21 October 2020, almost a year to the day since her injury.
3. Before consulting Dr Herald, the applicant had seen Dr Dave, orthopaedic surgeon.

Dr Herald initially saw the applicant to provide a second opinion as to whether she ought to have an arthroscopy. Dr Herald was of the view the treatment was appropriate, and he performed the arthroscopy on the applicant on 12 March 2021. According to Dr Herald:

"When I saw her on 11 May 2022, after another year of conservative treatment, she was still continuing to have pain, limping and troubles with her back, a knee replacement surgery was recommended."

1. Mr Joseph submitted it was implicit in Dr Herald's report that the applicant's continued limping and troubles with her back had been ongoing since he initially saw her. That submission is broadly consistent with the clinical material of Dr Herald, which includes a letter to the applicant's general practitioner (GP), Dr Torres, dated 6 October 2021, at which time he noted the applicant was getting secondary hip bursitis due to her limp. In a letter of referral to a physiotherapist dated 3 November 2021, Dr Herald hand wrote that the applicant required lumbar spine massage and hot packs physio for muscle strain. On the same date, he referred the applicant for an MRI of her lumbar spine as a result of a suspected disc prolapse with associated right buttock pain. In a report to Dr Torres on the same date,

"Unfortunately, however, she is also developing back pain. She says she was not able to obtain the stool at work and is standing for prolonged periods has caused both back pain as well as knee pain.

The lumbar spine is a good range of motion with paravertebral muscle spasm, tenderness over the lumbar spine but a neurologically intact extremity."

1. It is apparent Dr Herald was of the view the applicant's lumbar spine issues related to her work injury, as he requested payment by the respondent's insurer for that procedure. By email dated 9 November 2021, the respondent's insurer wrote to Dr Herald indicating they were unable to approve the lumbar MRI as liability for that body part had not been accepted.
2. The clinical records of Dr Dave are of little relevance to the dispute before the Commission, as they exclusively refer to the applicant's accepted knee injury. They will be part of the referral for medical assessment regardless of the outcome of the dispute at issue.
3. The applicant's Independent Medical Examiner (IME) Dr Dixon provided two reports which deal mostly with the applicant's knee. However, in his report dated 30 September 2024, Dr Dixon when asked about the applicant's present symptoms stated:

"She reports intermittent moderate pain in her right knee with residual stiffness and is unable to flex the knee beyond a right angle. She reports the knee does disturb her sleep and she has had strapping of the knee to try and control the patella, which apparently has been subluxing. She has residual swaying at the front of her right knee and difficulty with prolonged standing and walking. She has a walking tolerance of 15 minutes on even terrain and her sitting tolerance is restricted to half an hour because of lower back pain.

Her right and total knee replacement disturbs her sleep and she has difficulty when driving, moving her foot from the right foot to the accelerator to the brake pedal and tends to limit her driving to local driving at present...

She uses a wheat pack at times for her lower back and right knee and has tried to use castor oil to soften the scarring at her right knee... She reports the left ring finger has settled with hand therapy and exercises using a rubber ball. She reports, however, the pain in her lower back is persisting and has a radicular complaint with pain radiating down the lateral right leg as far as the calf. She has difficulty with repetitive bending and stooping which aggravates her back, hip and right knee and also the strapping as mentioned above. She has been using a wheat pack at night and a pillow between her knees."

1. The applicant's GP, Dr Torres, provided a report in which she also referred to the applicant having a constant limp.
2. For the respondent, Mr Doak submitted a number of the clinical records of the applicant's GP do not make reference to her having a consistent limp. Whilst, on the face of those documents, this is plainly true, what is also apparent is the applicant's knee injury continued to plague her as it developed into an increasingly serious one. She had restricted movement and her statement evidence together with the treating records and reports of Dr Herald indicate that by approximately 2021 and 2022, she was suffering both right hip and lumbar spine pain.
3. As previously noted, a complicating factor in this matter is the applicant made a number of complaints concerning her right hip before the injury at issue. In particular, she was diagnosed with right hip bursitis several years before the injury and was making consistent complaints up to only a few months beforehand. Additionally, there are some clinical entries which point to periodic lower back pain.
4. Nevertheless, what cannot be contested is the applicant was able to carry out her work duties before the injury at issue, notwithstanding pre-existing problems in her lumbar spine and right hip.
5. As the authorities make clear, it is not necessary for the applicant to establish the injury at issue was the cause of the pathology in either her lumbar spine or her right hip. Rather, she needs to establish on a commonsense basis that her right knee injury resulted in the hip and lumbar spine problems.
6. On balance, I am satisfied this is the case. The applicant has made attempts to return to work on light duties, however, she was not able to do so. She fulfilled a long period of conservative treatment in an attempt to remedy her knee, however, her condition did not improve. Additionally, her condition worsened to the point where she required a total knee replacement. That operation was not undertaken until 2023, some four years after the injury at issue. That is a very long time for a worker to be walking with a consistent limp, which I accept she was doing from the time of her accepted knee injury.
7. In my view, there is an unbroken chain of causation between the accepted right knee injury and the consequential conditions to the hip and lumbar spine.
8. I make that finding notwithstanding the IME reports of Dr Powell for the respondent, who stated the applicant's condition in her lumbar spine and hip were not causally linked with her right knee injury. He described the applicant as suffering from a longstanding pre-existing multilevel degenerative disease process within the lumbar spine.
9. This is plainly the case, as disclosed in the radiological evidence in the matter. Dr Powell noted the right hip bursitis has not been caused either directly or consequentially by her employment. He stated there was no common sense connection between "a minor right knee injury sustained in the course of her employment" and the longstanding multilevel degenerative pathology in the lumbar spine.
10. That opinion must be correct. However, it does not assist the respondent, as the applicant is not suggesting the pathology in her lumbar spine was caused by her right knee injury. Rather, she states that she developed a consequential condition which made the symptoms in her hip and back worse as a result of her accepted right knee injury and the limp which she developed and maintained for nearly four years.
11. Dr Powell also noted degenerative pathology in the lumbar spine tends to become symptomatic with advancing age and did not necessarily require aggravation or specific incidents or events. I accept this is the case, however, it does not accurately describe the circumstances of the applicant's predicament. She suffered a serious knee injury which worsened over time and was not treated by way of total knee replacement surgery until four years after the injurious event. During that time, I accept she walked with a consistent limp and required periodically consistent treatment in relation to both the hip and her lumbar spine.
12. It is plainly apparent the applicant's symptoms in the body systems in dispute worsened after the injury to her right knee.
13. Whilst correlation does not equal causation, in this matter, having examined all the evidence on a commonsense basis, I am satisfied on the balance of probabilities of the causal link between the applicant's accepted knee injury, the limp she developed as a result of it and the worsening of her hip and back symptoms.
14. In my opinion, the applicant has established an unbroken chain of causation between her right knee injury and the worsening of the conditions in her right hip and lumbar spine suffered since that injury.
15. Accordingly, I am of the view the applicant has established the presence of consequential conditions in the claimed body systems, and they will be referred for medical assessment along with the accepted right knee.

1. For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.