Evidence: Application to Resolve a Dispute and attached documents, Reply and attached documents, and Application to Admit Late Documents (ALD) dated

6 March 2025 from the respondent. I direct that the ALD registered on 25 November 2024 be removed from the bundle.

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

1. Karl Stone the applicant brings an action for payment of medical expenses and lump sum compensation against State of New South Wales (NSW Police Force).

1. The parties agree that the following issue remains in dispute:

(a) were the nature of the applicant's work duties a substantial contributing factor to the aggravation, exacerbation, acceleration or deterioration of his left hip osteoarthritis.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was heard at the Personal Injury Commission (Commission) on

12 March 2025. Mr Bruce McManamey appeared for the applicant briefed by Ms Andriana Hagipantelis from Brydens Lawyers Pty Ltd. Mr Adel Saleh of counsel instructed by Alexander Blum appeared for the respondent, and Alex Cumerlato appeared for the insurer. 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 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.

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

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

(b) Application to Admit Late Documents filed by the applicant on

25 November 2024;

(c) Reply and attached documents, and

(d) Application to Admit Late Documents filed by the respondent on

6 March 2025.

1. No application was made in relation to oral evidence.

1. Mr Stone made a statement dated 12 November 2024.[1] He was born in 1975 and is 49 years old. He commenced employment with the respondent in February 1998 and was attested as a Police Officer in August 1998.
2. He was with the Blacktown Local Area Command until 2002 when he moved to the Prosecutions Branch. He stayed there until 2004 when he left the respondent and obtained employment with "a Security Alarm Industry" as a sales representative.
3. In 2008 he rejoined the respondent, where he has been working ever since.
4. Since he returned in 2008 he had primarily been in "frontline" service areas. He said:[2]

"....Since returning to the NSW Police Force I have primarily been in "front line" service areas. This means I am exposed to and often attend jobs as the primary or first car on scene. I have worked in Fairfield Local Area Command, Windsor Local Area Command, Operational Policing Program, Rosehill Local Area Commend, Cumberland Police Area Command, Windsor Police Area Command and now Mt Druitt Police Area Command."

1. Mr Stone described his duties in the following terms:

"7. Throughout my time within the NSW Police Force, I was involved in general policing work with the inclusion of the following:

a) 1998- 2002 - General Duties:

• Physically restraining and arresting individuals.
  • Would use body weight to control offenders/Mental Health Patients.
  • Favour my left side to keep firearm away from person being wrestled.
• Jumping from heights chasing offenders, running, climbing stairs, jumping over obstacles.
• Lifting and carrying persons in custody or people in custody or people being arrested, moving, lifting and shifting objects during searches of premises/Cars or similar.
• Search warrants requiring force to Kicking/barge doors open, restrain offenders and move heavy objects.
• Lifting of heavy objects at Search Warrants where large seizures would take place.

b) 2008- 2011 - General Duties Fairfield PAC:

• Physically restraining and arresting individuals.
  • Would use body weight to control offenders/Mental Health Patients.
  • Favour my left side to keep firearm away from person being wrestled.
• Jumping from heights chasing offenders, running, climbing stairs, jumping over obstacles.
• Lifting and carrying persons in custody or people in custody or people being arrested, moving, lifting and shifting objects during searches of premises/Cars or similar.
• Building searches requiring physically forcing doors/pushing through objects in limited light situations.
• Involved in search warrants which involved lifting of heavy objects where large seizures would take place (eg large hydroponic setup).
• In February 2010 I was involved in a Car Accident on Urgent Duty where the vehicle was written off when hit by another vehicle from the left.

1. 2011 -2013-General Duties Sergeant Hawkesbury PAC:
   • Physically restraining and arresting individuals.
     • Would use body weight to control offenders/Mental Health Patients.
     • Favour my left side to keep firearm away from person being wrestled.
   • Chasing offenders, running, climbing stairs, mountainous terrain, climbing over obstacles.
   • Searching/climbing in National Parks/Wilderness areas with mountainous and heavy bush terrain wearing full appointments, often carrying out injured persons.
   • Carrying heavy objects - mainly storm and tempest jobs clearing trees off road.
   • Kicking/barging doors open for concern for welfare of persons and arrest of individuals.
   • Working as single unit police officer - tasks completed were often without assistance from other officers.

d) 2013-2016- Non-Operational Position:

• Carrying heavy technical based equipment.
• Sitting/Standing for extended periods.
• Extensive motor vehicle travel.
• Remaining current with training for Firearms/Battons/Handcuffs/unarmed wrestling.
• Continued to wear appointments.

e) 2016- 2020 - Duty Officer- Rosehill LAC/Cumberland PACS:

• Physically restraining and arresting individuals.

  • Given area, some offenders classified as high risk with weapons and in company.
  • Would use body weight to control offenders/Mental Health Patients.
  • Favour my left side to keep firearm away from person being wrestled.

• Chasing offenders, running, climbing stairs, jumping over obstacles.

• Lifting and carrying persons in custody or people in custody or people being arrested, moving, lifting and shifting objects during searches of premises/Cars or similar.

• Building searches requiring physically forcing doors/pushing through objects in limited light situations.

• Involved in search warrants which involved lifting of heavy objects where large seizures would take place (eg large hydroponic setup).

• Working as single unit police officer - tasks completed were often without assistance from other officers.

f) 2020-2024- Duty Officer- Hawkesbury PAC:

• Physically restraining and arresting individuals.
  • Would use body weight to control offenders/Mental Health Patients.
  • Favour my left side to keep firearm away from person being wrestled.
• Chasing offenders, running, climbing stairs, mountainous terrain, climbing over obstacles.
• Searching/climbing for persons in National Parks/Wilderness areas with mountainous and heavy bush terrain wearing full appointments, often carrying heavy objects.
• Recoveries of persons involving carrying injured persons over difficult terrain wearing appointments, often involving poor lifting techniques due to critical injuries that had to be cared for.
• Recoveries of persons from flood waters involving manual lifting with uneven footing/surfaces.
• Body recoveries which involved significant manual lifting of persons in terrain and down several flights of stairs.
• Significant storm and tempest jobs within the Hawkesbury that required Carrying heavy objects - included carrying equipment and significant assistance with clean up.
• Animal recoveries that required manual lifting (such as horses)
• Kicking/forcing doors open for concern for welfare of persons and arrest of individuals.
• Working as single unit police officer - tasks completed were often without assistance from other officers."

1. Mr Stone said that he had a prior knee injury playing amateur squash in around 2007, from which he recovered completely following an arthroscopy.
2. With regard to the subject injury, he said that around June 2021 he noticed the onset of pain in his left groin without any significant incident or injury. He started to experience a painful "clicking sensation on internal and external rotation" and he consulted his usual general practitioner (GP) Dr Mahima Adhikary and an ultrasound and X-ray of the left groin, hip and pelvis was undertaken.
3. Mr Stone outlined his treatment, eventually being referred to Professor James Sullivan on 25 August 2022. On 13 September 2023 Mr Stone underwent a left hip resurfacing arthroplasty with Dr Sullivan at Norwest Private Hospital.
4. Mr Stone outlined his subsequent difficulties with his left hip and their effect. He described that he experienced pain daily and had difficulties in some physical movements. He noted that he had come to further ultrasound investigations on 10 July 2024 and

2 October 2024. 5. He was seen by Dr Stephen Rimmer for the insurer on 15 November 2023, and his weekly payments ceased from 8 December 2023, as did payment of his medical expenses. 6. From [56] Mr Stone surveyed the medical evidence in his favour, repeating some of the opinions in what can best be described as advocacy.

1. Dispute notices were issued on 21 November 2023, 11 September 2024 and

26 April 2024 which referred to dicta by DP Roche in Willoughby City Council v Kevrick[3] that the expression "nature and conditions" was meaningless. 2. The notice alleged that particulars had not been given regarding the interaction between the nature and conditions of Mr Stone's employment and his present condition. 3. The notice said:[4]

"Accepting that the phrase 'nature and conditions' is meaningless, the question will be whether your policing duties which require ordinary biomechanics, including bending, lifting, running etc, is causative of an aggravation, exacerbation, etc of his advanced left hip osteoarthritis pursuant to s4 of the Workers Compensation Act, 1987 (the WCA)."

1. The notice also observed, "the critical question is whether the acceleration, exacerbation or deterioration of your left hip osteoarthritis was substantially work related, when compared to your pre-existing degeneration, genetic proclivity and recreational activities including hiking and squash".[5]
2. In its Reply the respondent set out the clinical notes from Cranebrook Doctors.

1. Mr Stone was treated by various GPs within Cranebrook Doctors.[6] Dr Mahima Adhikary was his first GP when complaints were first made by Mr Stone about his left hip.
2. On 29 June 2021 the entry said:[7]

1. The reason for visit was put down as "bursitis" and an imaging request was made for an ultrasound of the left groin on a suspicion of a condition of left ischiogluteal bursitis.
2. The next relevant entry was on 5 July 2021 at the time of COVID-19 restrictions. This was a phone consultation and Dr Adhikary noted:

1. ? OASI joint and left hip.
2. Bursitis-Gluteal."
3. On 13 July 2021 the entry included:

1. On 27 June 2022 Mr Stone consulted Dr Adhikary to discuss his hip pain and she noted that he needed anti-inflammatories for doing leisure activities and it was affecting

Mr Stone's sleep. 2. An MRI scan was booked for 24 July 2022. 3. The next consultation was dated 18 July 2022, when Mr Stone saw Dr Samia Zahra, who noted that an MRI was booked.[8] 4. On 9 August 2022 Dr Adhikary recorded the results of the MRI scan:

"severe OA change involving the left hip, marked synovitis, involving the left hip joint with fluid seen in hip joint.

degenerative wear / complex, tear, with associated large paralabral cyst

1. At that point a referral was made to Dr Sullivan, orthopaedic surgeon.
2. The next entry occurred on 8 January 2023, made by Dr Zahra. It noted that Mr Stone was complaining of left hip pain "severe OA" and it noted that Dr Sullivan was his caring specialist. It also noted that surgery was planned for September.
3. Relevantly the next entry was on 6 June 2023 which stated:

1. On 13 August 2023 Dr Zahra entered the following note:

1. On 10 October 2023 the entry by Dr Mustafa Hafiz said:

1. The investigations were lodged in the respondent's ALD of 6 March 2025. They are addressed in the discussion, below.

1. Dr Sullivan reported to Mr Stone's solicitors on 9 April 2024.[9] He recorded the following history:

"I first saw Mr Stone on the 25 August 2022 after referral by Dr Mahima Adhikary. Mr Stone presented with about eighteen months of increasing pain about his left hip. He said that he could manage day to day activities as long as he took Mobic, but he was struggling with his activities as a Police Officer. He noted that the pain varied. He would get sudden sharp pain with sudden movements and noted a clicking and catching in the hip. He could not walk for prolonged periods and the pain was disturbing his sleep at night. He said he was still attending the gym. But had cut back on the activities that he performed."

1. An MRI scan had already been taken on 25 July 2022 and Dr Sullivan noted that it confirmed advanced arthritis of the left hip with grade IV changes, subchondral oedema and geode formation.
2. Dr Sullivan advised Mr Stone that he had advanced arthritis but there was no urgent need to intervene in view of the fact that he was still reasonably functional.
3. Dr Sullivan advised Mr Stone that if his symptoms got to the stage where it was affecting his general mobility and quality of life, the next step would be most likely an arthroplasty involving, because of his age, hip resurfacing.
4. Dr Sullivan said that he next saw Mr Stone "on 17 August 2022". (This date is probably 17 August 2023 as he said that Mr Stone was referred back to him by Dr Zahra.

Dr Zahra's note of 13 August 2023 reported that Mr Stone was seeing his specialist

Dr "Sulluvan" the following Thursday. A perusal of the 2023 calendar shows that

13 August 2023 was a Sunday and that the date the following Thursday was

17 August 2023. Also, when Mr Stone consulted his GP at the Cranebrook Doctors on

9 August 2022, his GP was Dr Adhikary).[10] 5. On that date Dr Sullivan took a history that Mr Stone's disability had increased and he was "struggling to maintain his mobility and his capacity to stay at work." The anti-inflammatories were no longer controlling his pain in his left hip although he still had reasonable movement there. 6. Dr Sullivan advised that non-surgical treatment was no longer sufficient to manage his condition and after some discussion it was decided that he would proceed with a hip resurfacing. 7. That occurred at Norwest Private Hospital on 13 September 2023. 8. Dr Sullivan said that following surgery Mr Stone was encouraged to persist with exercise and his rehab program. Dr Sullivan then said "at that time Mr Stone asked me about causation of his osteoarthritis of the hip joint. He stated that he had multiple injuries in the course of carrying out his Police duties. He also stated that he had a family history of osteoarthritis, his father having undergone a total hip replacement". 9. Later in his report Dr Sullivan said:[11]

"In regard to causation, Mr Stone has a family history of osteoarthritis and it may well be that he would have developed osteoarthritis in any event. However I note that there were no significant changes on the right side and the nature of his work is quite physical. In the least, I would consider the nature and condition of his work duties would have accelerated and contributed to the progression of his osteoarthritis and brought forward the need for intervention. He may well have gone to develop osteoarthritis in any event, but intervention may well have been delayed for a significant period of time. As such, I consider his employment in the NSW police force is a substantial contributing factor to his need for surgery."

1. Dr Sahra wrote a report dated 27 March 2024.[12] She noted that Mr Stone was actually seen by the practice on 1 June 2021, although the earliest entry in the notes before the Commission was 29 June 2021. In any event Dr Zahra noted and endorsed Dr Sullivan's opinion as to causation.
2. She noted that following the hip resurfacing Mr Stone was doing well and was back on full duties with the police.

Dr Denise Tong, consultant in musculoskeletal medicine

1. Dr Tong was retained as Mr Stone's medico-legal specialist.
2. Dr Tong took a consistent history of the onset of the left hip problem and subsequent treatment. She noted the investigations, relevantly the MRI of the left hip on 25 July 2022.
3. There was a further MRI taken on 1 August 2023 which showed that there had been progression since the MRI of 8 July 2021 of the left hip joint osteoarthritis.
4. He noted the surgery with Dr Sullivant on 13 September 2023. Her diagnosis and opinion was:[13]

"Mr Stone is a 49 year old police officer who sustained left hip injury resulting in osteoarthritis from the multiple physical activities he has had to do during the natures and conditions of his employment with the NSW Police Force from 1998 - 2004 and 2008 until currently."

1. She said that Mr Stone was suffering from a left hip osteoarthritis on a background of pre-existing acetabular impingement which required left hip resurfacing arthroplasty.
2. Dr Tong was asked to comment on a report by Dr Stephen Rimmer, whose report the respondent elected not to rely on.
3. Relevantly Dr Tong said:[14]

"Whilst a family history of early onset of osteoarthritis and playing squash may predispose Mr Stone osteoarthritis, the early age of his onset of hip osteoarthritis (at time of onset he was only 46 years old) suggests there are other significant factors that contributed to this.

Firstly, his age of onset of the osteoarthritis was very young. His father, although he had osteoarthritis of the hip, only had his hip replacement in his 70's, which is age appropriate in terms of osteoarthritis. Young onset of osteoarthritis is usually associated with post traumatic/injury in causation.

If it was a simple case of generalized osteoarthritis, his right and left hip should have prematurely developed osteoarthritis equally, and yet his left hip was the only joint that developed it. I suspect this to be due to his employment, where he had to do most things with the left leg as a leading force (because the right hip carries his gun), involving prolonged walking, running, kicking, jumping, confronting/wrestling against offenders.

These types of work would involve induce repetitive left hip trauma, hence developing early onset post-traumatic osteoarthritis. Even though there was not one specific injury, the nature and conditions of his employment over 22 years would certainly contribute to the onset of early onset post-traumatic osteoarthritis of the left hip.

Lastly, he only played amateur squash, and no specific injury to the left hip was ever noted. I would find it hard to believe that playing squash would specifically cause left sided only osteoarthritis (why not both hips?)."

1. As noted, reports were lodged by the respondent by both Dr Stephen Rimmer and

Dr Roger Rowe both specialists were orthopaedic surgeons and the respondent was called on to elect as it had transgressed the provisions of the relevant regulation. 2. Dr Rowe noted amongst the documents that had been supplied to him "reports of A/Prof Sullivan, various". He took a history that Mr Stone had worked on general duties in 1998 and 2013 and office duties between 2013 and 2016. Dr Rowe said:[15]

"He began work as duty officer on operational duties in 2016 and has remained in this capacity ever since and currently. He stated that although he is duty officer, the job does not consist of just desk work. There is much physical activity including lifting, bashing [sic], wrestling, dragging and they even include dragging dead animals and trees."

1. Dr Rowe noted that Mr Stone played squash in his youth and indeed had surgical treatment on his knee as a result of the squash injury. He noted that Mr Stone's father underwent total hip replacement surgery.
2. Under the heading "Radiological examination" Dr Rowe noted "No medical imaging was available". He said:[16]

"The undated report of x rays left hip and pelvis refers to mild degeneration in the right hip joint and a 7 mm loose body inferior to the right femoral neck.

The undated report of MRI lumbar spine and left hip referred to severe osteoarthritic change in the left hip along with degenerative changes in the lower lumbar spine including grade 1 spondylolisthesis at the L4/5 level secondary to degenerative facet joints."

1. Dr Rowe advised in answer to a somewhat complicated question:[17]

"The history as given by Mr Stone has been described in the main body of this report. There was no single significant accident or injury involving the hip joint.

Mr Stone wished to relate his hip problems to the nature and conditions of his work."

1. Dr Rowe noted in answer to a third question:[18]

"There was no history of any specific accident or injury relating to the left hip joint."

1. When asked to provide his opinion, Dr Rowe said:[19]

"There is no convincing evidence to relate the nature and conditions of his

employment to the development of osteoarthritis of the left hip. He has no problem at all with the right hip."

1. In answer to a further convoluted question, at question 9, Dr Rowe said:[20]

"There is no evidence to relate the activities required during the course of his employment to the development of unilateral hip arthritis."

1. Again following a further such question, Dr Rowe said:[21]

"There is no evidence available that his employment was or remains a substantial contributing factor in regard to aggravation, acceleration, exacerbation or deterioration of the osteoarthritis of his left hip. It is most probable that the osteoarthritis is a result of familial or genetic factors. In this regard, his father required total hip replacement. It is also noted that he played squash although there was no history of any specific squash related injury involving his left hip."

1. In answer to question 12, Dr Rowe said:[22]

"There is no evidence that his employment caused any aggravation acceleration, deterioration or exacerbation of the osteoarthritis."

1. Dr Rowe made a further report dated 27 February 2025.[23] Dr Rowe was asked whether he considered Mr Stone's employment had accelerated the progression of the osteoarthritis. Dr Rowe said:[24]

"You have mentioned in your referring letter that treating surgeon, Dr J Sullivan, considered that the nature of Mr Stone's work would have accelerated the progression of the hip arthritis and perhaps likely brought forward the need for intervention.

Unfortunately, this report by Dr Sullivan was not made available to me and thus I am not aware of his precise wording in this regard. On balance of probability, it is considered that the nature of his work with the various activities as described may have aggravated or accelerated the underlying degenerative change, but there is no convincing evidence of this. There was no specific accident or injury or any significant event involving the hip. Thus, any contribution from the nature of his work as above would in my view be minimal and overall I maintain that it is indeed unlikely."

1. Dr Rowe said that he had noted Mr Stone's statement. He differed from Dr Zahra's opinion that the impingement had been caused by the activities as he said impingement was as a result of the deformity in the femoral neck. He conceded that there was no mention of such an event in the medical reports.
2. He said:[25]

"Dr Zahra also discounts family history which, in my opinion, is an error as family history and genetic predisposition can never be discounted."

1. Mr McManamy referred to the evidence on which he relied to establish that the duties performed by Mr Stone as a police officer had caused an acceleration, aggravation, exacerbation or deterioration of Mr Stone's pre-existing genetic predisposition to osteoarthritis. He relied on the evidence of complaint made to the GPs at the medical practice he attended, and he relied on the opinions of Drs Sullivan, Tong and indeed the GP Dr Zahra to establish that the duties Mr Stone was required to perform as a serving police officer constituted a substantial contributing factor to his injury.
2. He referred to the relevant evidence in that regard and he submitted that the opinion of the respondent's medical legal expert, Dr Rowe, should be given little weight. Rather than repeat those submissions, with which I largely agree, they will be incorporated into my reasons.

1. Mr Saleh agreed that the issue before the Commission was causation. He referred to the chronology of events and noted that the P902 report of injury was dated 10 October 2023. This followed the surgery of 13 September 2023, and Mr Saleh directed attention to the question of when Dr Sullivan opined that Mr Stone's duties had accelerated his arthritic condition. Dr Sullivan said in his report of 28 September 2023 that Mr Stone had first been seen 25 August 2022.
2. Mr Saleh referred to the first complaints made by Mr Stone regarding his hip to his then GP Dr Adhikary. He noted that there had been several attendances at his GP's practice without any note being made as to the cause of his condition. He noted that even after

Dr Adhikary had referred Mr Stone to Dr Sullivan, no cause was noted for the onset of complaints. 3. He submitted that the evidence demonstrated that it was not until after the resurfacing arthroscopy that Dr Sullivan suggested that the cause of Mr Stone's condition was the duties he had been performing. No expression regarding causation had been given when Dr Sullivan saw Mr Stone on 25 August 2022, Saleh submitted. The statement that

Mr Stone "was struggling with his activities as a Police Officer" was not, Mr Saleh said, an indication that Mr Stone's work was a cause, it just noted that he was struggling. It was only on 27 September 2023, after the surgery, that Dr Sullivan turned his mind to causation, Mr Saleh said, following an enquiry by Mr Stone. 4. Mr Saleh referred to the evidence regarding the familial nature of Mr Stone's genetic condition and noted that Mr Stone's father had undergone a hip replacement in his 70s. He submitted that Dr Sullivan's opinion at the end of his 9 April 2024 report, made no reference to the specific duties he was doing but stated that the work was "quite physical." Dr Sullivan also stated that because the left hip only was symptomatic, the nature and conditions of Mr Stone's work would have accelerated his arthritic condition. 5. Mr Saleh discussed further the entries in the clinical notes. From them, it would be safe to assume that symptoms commenced in early 2021, Mr Saleh said. The discovery of the pathology in the ultrasounds did not raise any consideration in subsequent consultations about causation, he said. 6. Mr Saleh noted there was a gap of about a year before Mr Stone returned to his GP in June 2022. It was important Mr Saleh submitted that Mr Stone then was being treated for Diabetes type II, which was lifestyle related and for which he took a specific medication. In August 2022 Dr Adhikary reviewed the MRI scan and Mr Saleh referred to the pathology there described. Mr Saleh emphasised that the result may indicate acetabular impingement, which was the main genetic component. The first substantive consultation with Dr Zahra was on 8 January 2023 when Mr Stone was referred back to Dr Sullivan due to his complaints of ongoing hip problems, Mr Saleh noted. 7. At this point, Mr Saleh stated, there had still been no mention of work being a causative factor. It was only when Mr Stone saw Dr Hafiz on 10 October 2023 that workers compensation had been mentioned, following Dr Sullivan's report. Thus, Mr Saleh said, the opinions of Dr Hafiz were irrelevant. 8. On 18 August 2023 Dr Zahra noted that surgery was planned to the right hip, Mr Saleh said. That, Mr Saleh acknowledged, may have been an error and reference to the left hip had been intended. However, Mr Saleh said, there was evidence of pathology in the right hip and the reference may have been deliberate, as Dr Zahra referred Mr Stone for X-rays of both hips on 8 July 2021. Dr Tong was incorrect to say therefore that there had been no pathology in the right hip. Dr Rowe on 16 July 2024 was aware however of such pathology in the right hip. 9. Mr Saleh submitted that it had been incorrect to assert that there had been no pathology in the right hip as an X-ray taken had demonstrated that in fact there was. What flowed from that, Mr Saleh said in answer to a question, was that the family history should not be discounted as was discounted by Dr Zahra, and it served to show that work was not a substantial contributing factor. Dr Adhikary had said it occurred after hiking,

Mr Saleh said. Although Mr Stone reported that he was struggling with his work duties, nobody thought to mention that his work duties contributed in a significant way to his injury. It was only after the surgery that it became work related. 10. Dr Rowe was aware of the radiology and had access to the relevant medical reports. He found that Mr Stone's impingement was a result of a genetic condition involving the deformity of the femoral neck, which accounted for the development of the osteoarthritis, and Dr Rowe justified his opinion by reference to the medical imaging reports. Dr Zahra's discounting of the genetic disposition in familial circumstances was an error, Mr Saleh submitted. 11. Mr Saleh commented that the detail taken by Dr Tong was "interesting," as it had not been referred to by any treating doctor. No weight should be given to her opinion, Mr Saleh said, as she did not consider the effect of Mr Stone's later period of employment, or the duties he was required to perform. He conceded that Mr Stone had described that period in his statement but argued that nonetheless her opinion was of no probative value. 12. Mr Saleh referred again to the familial nature of Mr Stone's condition, and made some further submissions thereon.

1. Following the amendment made to the pleadings on 13 January 2025, Mr Stone's action is brought pursuant to s 4(b)(ii) of the 1987 Act:

(a) means personal injury arising out of or in the course of employment,

(b) includes a

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease"

1. The nature of Mr Stone's duties as a police officer has not been challenged. The duties are set out above (at [12]) as described in his statement. Although Mr Saleh made submissions that Dr Tong's opinion was of little weight because she only advised as to the duties Mr Stone was performing between 1998 and 2004, a perusal of her report of

22 March 2024 does not reflect that conclusion. Dr Tong noted variously:

"Mr Stone is a 49 year old man who, at the time of the alleged injury, was employed by NSW Police Force as a police officer from 1998 - 2004, and again from 2008 till present....[26]

Mr Stone is able to return to full-time work about 5 weeks restricted duties post left hip operation and then by 12 weeks he was back to full time regular work duties. He is working as an inspector duty officer.[27]

Mr Stone is a 49 year old police officer who sustained left hip injury resulting in osteoarthritis from the multiple physical activities he has had to do during the natures and conditions of his employment with the NSW Police Force from 1998 - 2004 and 2008 until currently.[28]

....Even though there was not one specific injury, the nature and conditions of his employment over 22 years would certainly contribute to the onset of early onset post-traumatic osteoarthritis of the left hip.[29]

This condition is materially aggravated by the general nature and conditions of the worker's employment as described to me during Mr Stone's employment during the period of employment from 1998 - 2004 and 2008 - currently."[30]

1. Mr Saleh's submission appeared to be predicated on the assumption that because

Dr Tong restricted her attention to the duties Mr Stone was doing between 1998 and 2004, and because she did not describe the duties he was doing after he returned to the Police Force, the probative weight of her opinion was negligible. A perusal of the examples of the work Mr Stone was doing belies that assumption, with respect. Dr Tong included in her description:[31]

"• Rescue people by carrying their body out of accident sites

• Dragging horses and other farm equipment (at the Windsor police station)"

1. Mr Stone's statement only referred to horse recovery when he described his duties at the Hawkesbury Command between 2020 and 2024, and his rescue activities were confined to his duties with the Hawkesbury Command between 2011 and 2013, and again between 2020 and 2024. It accordingly may be assumed that the duties described by Dr Tong were part of the history she was given during her consultation, and that her failure to include Mr Stone's post 2008 role was an oversight at that point in her report. The extracts referred to above however demonstrate that she was aware of the full scope of Mr Stone's duties.
2. Further, the comprehensive description given in Mr Stone's statement shows that the level of physical activity his duties required did not vary between the two periods, and that therefore Dr Tong's opinion was given in a fair climate in any event.[32]
3. Mr Saleh also sought to rely on the clinical notes from the Cranebrook Doctors practice to support a further thesis concerning the absence of any comment about causation until

Dr Sullivan wrote to Dr Zahra on 28 September 2023. Dr Sullivan said:[33]

"[Mr Stone] is asking me in regards to causation, he has had a number of injuries related to his work as a Police Officer. He does have a family history of osteoarthritis, his father had a hip replaced, but it is likely that the nature of his work would have accelerated the progression of his hip arthritis and perhaps likely brought forward the need for intervention."

1. This presumably prompted the entry in Dr Hafiz's notes on 10 October 2023 mentioning "workers compensation." Mr Saleh submitted that the failure by Mr Stone's GPs to mention causation prior to Dr Sullivan's advice had some evidentiary value. He submitted that it was important to note that when Mr Stone returned after a gap of about a year between consultations - 13 July 2021 to 27 June 2022 - Mr Stone was being treated for diabetes, for which he was taking a specific medication.
2. However, the entry of 27 June 2022 was concerned with Mr Stone's left hip pain and there was no mention of diabetes. It may be that Mr Stone was consulting another practice, as Dr Adhikary noted that "elsewhere" medication in the form of metformin 500mg was being taken. However, the only mention of diabetes within the evidence was another entry of

9 October 2023, which spoke of a goal to "prevent diabetes."[34] Just why the respondent considered this evidence to be noteworthy was not explained by Mr Saleh. It has no relevance to the issues in this case. 3. Mr Saleh's next point was that the MRI scan of 27 July 2022 that was reproduced by

Dr Adhikary in the entry of 9 August 2022 may have demonstrated the genetic problem in the reference to the acetabular impingement. It is however common ground that there is a family history of osteoarthritis, and that Mr Stone's father came to a total hip replacement in his 70s. 4. Mr Saleh submitted that because there had been so many consultations with the doctors at Cranebrook Doctors, and because Mr Stone had undergone an MRI investigation which showed pathology in the left hip, that the failure to consider causation raised an inference, as I understood Mr Saleh, that the medical practitioners at that point were satisfied that the cause of Mr Stone's left hip condition was genetic. If work had been a factor,

Mr Saleh seemed to submit, then it would be reasonable for such a cause to have been identified. There are two difficulties with that submission. 5. Firstly, there was some indication from Dr Sullivan when he first assessed Mr Stone on

25 August 2022 as to the source of Mr Stone's injury, as Dr Sullivan noted that "[Mr Stone] was struggling with his activities as a Police Officer." Mr Saleh's comment that this was not an opinion about causation, but rather that Mr Stone was struggling, I find to be a distinction without a difference in these circumstances. 6. Secondly, Mr Saleh's submission did not allow for the evidentiary principle that alleged inconsistencies (or, in this case, omissions) in the notes of health professionals should be approached with caution. In Mason v Demasi[35] Basten JA said that the reasons for such caution included a number of factors, including that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceeding. In Qannadian v Bartter Enterprises Pty Limited[36] DP Michael Snell said:

"35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:

'It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]-[36]).'

1. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence."
2. The clinical notes from Cranbrook Doctors were, as busy GPs tend to be, more concerned with treating the problem rather than investigating its legal cause. It was correct that

Mr Stone's father also suffered from osteoarthritis, but none of the entries recorded that fact either. Until Dr Sullivan discussed the question of causation with Mr Stone on

28 September 2023, no attention had been paid to that issue. It was Dr Sullivan himself who acknowledged the family history, but who also thought there had been an acceleration of Mr Stone's condition caused by his duties on 28 September 2023. 3. In his report of 9 April 2024, Dr Sullivan confirmed his opinion, and the reason he advanced was compelling. Whilst Mr Stone may well have developed arthritis in any event, there were no significant changes in the right hip, Dr Sullivan said, as indicated above (paragraph [51]). The duties Mr Stone were performing therefore had accelerated and contributed to the progression of his osteoarthritis and brought forward the need for intervention, Dr Sullivan said. 4. Dr Tong supported that opinion in some more detail, saying, as indicated above, that

Mr Stone had to perform most duties with the left leg as a leading force as he carried his gun on his right hip. The duties Dr Tong described in some detail, and they emphasised the physical nature of his duties. Dr Tong also advised that the onset of osteoarthritis at Mr Stone's age ("young onset") was also more typically associated with "post traumatic/ injury", which she found Mr Stone had suffered. She also explained in more detail

Dr Sullivan's opinion regarding the left-sided nature of the injury. A simple case of osteoarthritis suffering premature onset should have affected both hips equally, she said, and as the left joint only was affected, she found that Mr Stone's duties were responsible. 5. Mr Saleh submitted that Dr Tong had erred by saying that there was no pathology detected within the right hip, but a careful analysis of Dr Tong's report did not support that assertion. In commenting on Dr Sullivan's opinion, Dr Tong said:[37]

"Mr Stone was informed by Dr Sullivan that it was unusual he only had severe osteoarthritis of the left hip and not the right hip, and that his right hip osteoarthritis is only mild and would be age appropriate."

1. Dr Tong did not disagree with that reasoning. However Mr Saleh took the matter further and referred to the entry of Dr Zahra of 18 August 2023, in which she had written that surgery was planned on 13 September 2023 for the "right Hip." Dr Zahra had also referred to the "right Hip" in the entry before of 13 August 2023. This, argued Mr Saleh, could mean that there was pathology in the right hip, presumably of such magnitude that surgery was needed as well. Mr Saleh made no attempt to explain how this sudden, unexplained appearance of the right hip condition came to be booked for surgical treatment on the same day that the left hip was to be operated on. Neither did he attempt to explain how on "next Thursday" Mr Stone was to see "Dr. Sulluvin" for his right hip, when Dr Sullivan in fact saw Mr Stone on that date for the left leg.[38] The reference to the right hip - and indeed the misspelling of Dr Sullivan's name - reinforce that GPs tend to be busy practitioners who can be prone to error.
2. Mr Saleh was correct in submitting that investigations had been carried out of the right hip, but there is no evidence to suggest that it was symptomatic. The references to

Mr Stone's injury were concerned with the left hip, and the imaging taken was concerned with the left hip. The following images were taken:[39] * 2 July 2021: ultrasound: left groin; * 8 July 2021: X-ray: left hip and pelvis (including an X-ray of the right hip); * 10 July 2021:ultrasound: left groin and left hip/thigh; * 25 July 2022: MRI: lumbar spine and left hip; * 1 August 2023: X-Ray: bilateral hip, and * 3 October 2024: ultrasound: left groin and left thigh/buttock 3. It can be seen that no clinical interest was shown in the condition of the right hip, either within the clinical notes themselves (apart from the erroneous entries of 13 and 18 August) or in the investigations. It follows that Mr Saleh's submission that the right hip was also symptomatic must be dismissed. The bilateral hip X-rays of 8 July 2021 and

1 August 2023 were probably for comparative purposes. 4. The respondent chose to rely on the report of Dr Rowe, when its dispute notices referred to the opinion of a different medico-legal specialist. Be that as it may, Dr Rowe's opinion was predicated firstly on the basis that there was no history of any specific accident or injury relating to the left hip. That assumption was correct, but had never been raised as an issue, as Mr Stone was relying on the nature of his duties over 22 years of service in the police. 5. Secondly, Dr Rowe advised that there was "no convincing evidence" to relate Mr Stone's duties to "the development of osteoarthritis of the left hip." Dr Rowe acknowledged that the right hip was asymptomatic. This opinion too is unhelpful, as the issue is whether

Mr Stone's duties had aggravated, exacerbated, accelerated or deteriorated his osteoarthritic condition.[40] As indicated, there is a plethora of unchallenged evidence as to the nature of those duties. 6. When asked further about these activities Dr Rowe said that there was "no evidence" to relate those activities to "the development" of unilateral hip arthritis. Dr Rowe again did not consider whether the activities had aggravated, exacerbated, accelerated or deteriorated that condition. When he was finally asked directly to comment, Dr Rowe said that there was "no evidence" to establish that Mr Stone's employment was a substantial contributing factor to such aggravation, exacerbation, acceleration or deterioration. 7. That opinion was not accompanied by any analysis of the evidence. Rather, Dr Rowe stated that the osteoarthritis was "the result of familial or genetic factors." Again, Dr Rowe addressed the wrong question. There is very little doubt that those factors have caused the osteoarthritis, and he was correct to note that Mr Stone's father had a total hip replacement. Dr Rowe mentioned Mr Stone's squash playing, but appeared to discount it, noting that Mr Stone had not injured his hip thereby. 8. When he was finally asked the correct question, Dr Rowe said that there was "no evidence" that Mr Stone's employment had caused any aggravation, acceleration, deterioration or exacerbation of the osteoarthritis. This, with respect, was the barest of ipse dixits. Dr Rowe made no attempt to explain his opinion in the face of the overwhelming evidence regarding Mr Stone's duties. 9. Dr Rowe did not consider the opinions of either Dr Sullivan or Dr Tong as to causation. He referred to Dr Tong's second report of 22 March 2024 regarding the calculation of whole person impairment, and not at all to Dr Sullivan's opinion. 10. In his second report of 27 February 2025 Dr Rowe was unable to remark on Dr Sullivan's opinion, as "unfortunately this report...was not made available to me..." Dr Rowe thought that Mr Stone's activities "may have aggravated or accelerated the underlying degenerative change" but he thought there was "no convincing evidence of this." He repeated his earlier opinion that there had been no specific accident or injury and concluded that any contribution from Mr Stone's duties would be minimal and unlikely. 11. Dr Rowe also noted the contents of Mr Stone's statement and the report of Dr Zahra. He said that acetabular impingement was the result of a deformity of the femoral neck and could lead to the premature onset of arthritis. Thus, he said, family history and genetic disposition can never be discounted. Dr Rowe concluded by confirming his earlier opinion that there was no "convincing evidence" that would cause him to change his opinions. 12. Again, Dr Rowe failed to explain why he allowed that Mr Stone's activities may have aggravated and accelerated Mr Stone's condition and then said it was unlikely. There was no proper analysis of the evidence or the opinions supporting Mr Stone. His reports accordingly are of very little weight and I accept the views of Dr Sullivan and Dr Tong. 13. For the above reasons I make the above findings and orders. The claim for s 60 expenses had been documented from page 45 of the ARD annexures, but I note my direction of 13 January 2025, which ordered:

"3. By consent I amend the medical/hospital and related expenses section of the ARD form to delete what appears therein and I direct the applicant to lodge and serve an amended s 60s claim with an itemised schedule within 14 days hereof."

1. It does not appear that this has been complied with, and no submissions were made thereon. I therefore make a general order, but give the parties leave to approach.

[3] [2009] NSWWCCPD 140.

[32] See BFZ v Inner West Council [2024] NSWPIC 167 per Principal Member Harris from [423] for an analysis of the concept.

[35] [2009] NSWCA 227 at [2].

[36] [2016] NSWWCCPD 50.

[38] See [43] above as to the date being 17 August 2023.

[39] ALD Respondent 6.3.25 from page 7.

[40] Per s 4b(ii) and s16 of the 1998 Act.