1. The appeal is dismissed.
2. The Certificate of Determination dated 21 August 2025 is confirmed.

WORKERS COMPENSATION - section 4(b)(ii) of the Workers Compensation Act 1987 - time within which claim for compensation must be made - section 261 of the Workplace Injury Management and Workers Compensation Act 1998 - exception to s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998 - expert report does not indicate that employment was the main contributing factor in the aggravation of a disease condition

Taylor v John Thompson Racing [2025] NSWPIC 424

1. The appeal is from a Certificate of Determination dated 21 August 2025.[1] The Personal Injury Commission made an award for the respondent to the appeal.
2. In the proceedings before the Member the now appellant, Ms Teena Taylor, claimed lump sum compensation for injuries to the left shoulder and bilateral knee injuries. The latter alleged to have been occasioned by the nature and conditions of her employment as a stable hand.
3. The claim with respect to the left shoulder was not disputed.
4. The claim for injury to the knees was disputed on three grounds, namely:

(a) the appellant failed to provide notice of injury within the period provided for in s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b) the appellant failed to submit a claim for compensation within the period provided for by s 261 of the 1998 Act, and

(c) the appellant did not sustain injury to the knees.

1. The Member resolved the first issue in favour of the appellant but found against her in respect of the second and third issues.
2. The appeal challenges the conclusion with respect to those issues.
3. For the reasons that follow the appeal is dismissed and the Certificate of Determination is confirmed.

1. The injury alleged by the appellant was a disease injury to the knees (osteoarthritis) allegedly aggravated, accelerated or exacerbated through the appellant's employment as a stable hand with the respondent for the purpose of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
2. The Member found that given the nature of the injury it would not have been possible for notice to have been given to the respondent before she ceased working for the employer, which occurred some time during mid-2013.
3. The evidence accepted by the Member was that the appellant only became aware of the knee condition related to her employment after a consultation with her treating doctor on 12 March 2018. The appellant had left the employ of the respondent on 23 June 2013. The Member said:

"There is no dispute the [appellant] first gave notice of her bilateral knee injury to the respondent on 2 October 2024, the same date she submitted the claim for compensation. That was 11 years, three months and nine days after the pleaded deemed date of injury (23 June 2013). Alternatively, it was six years, six months and 20 days after the date referred to during the hearing as the date she became aware of the employment connection. Even taking the most generous and liberal view, neither period could be found to have been 'as soon as possible after the injury happened' as is required by s 254 of the 1998 Act."[2]

1. The Member considered whether there were "special circumstances" excusing the failure to provide notice. He upheld the appellant's claim pursuant to s 254(3)(a) finding that the respondent had not been prejudiced by the failure to give notice.[3]
2. The Member reached a conclusion adverse to the appellant on the question of whether or not the claim was made as required by s 261 of the 1998 Act. The Member said:

"24. It was submitted for the [appellant] that she was ignorant of her rights regarding workers compensation until the consultation with her treating doctor on 12 March 2018. After that date she consulted a solicitor, BTC Lawyers (BTC), for advice. If 12 March 2018 is accepted as the date the [appellant's] ignorance of rights ended, as has been contended, a claim should have been made by no later than 11 September 2018, which was not done.

1. Although the precise date cannot be determined on the available evidence, it is obvious she retained BTC sometime before 22 February 2019, which is the date the [appellant] attended a medical examination arranged by her solicitor. She could therefore not be said to have been properly informed of her workers compensation rights from [sic] February 2019 at the very latest.
2. There was then a failure to pursue those rights for well over 5 years, which the [appellant] explains by way of a chronology attached to her 29 April 2025 statement, including a change of solicitor during May 2023 and various procedural and funding issues. It is however the nature and extent of the [appellant's] knee condition that needs to be examined to determine whether it causes her serious and permanent disablement because, if not, there is no further scope for compensation to be recovered from the 2 October 2024 claim."
3. The Member directed himself as to the operation of s 261 in the following terms:

"19. Section 261 of the 1998 Act requires a claim for compensation to be made within six months after the date of injury, where that date can be when an injured worker first becomes aware of their work-related injury. The six-month limit can be extended to three years if the failure to make a claim 'was occasioned by ignorance, mistake, absence from the State or other reasonable cause'. The [appellant's] claim for compensation was submitted after even the extended three-year period.

1. Section 261(4)(b) provides that in such circumstances, failure to make a claim within the required period is not a bar to the recovery of compensation if the claim is also in respect of an injury resulting in the 'serious and permanent disablement of a worker'."
2. The Member considered the relevant matters to determine if the appellant suffered a "serious and permanent disablement" were whether she had a disability, whether it was serious, whether it was permanent and if so whether it adversely affected her capacity to work. The disablement must arise from the injury, which is the subject of the claim, in this case the appellant's bilateral knee condition.[4]
3. The Member quoted from the evidence of Dr Reiter, rheumatologist qualified by the appellant, and said:

"32. The history outlined by Dr Reiter refers to the [appellant's] work as a rider and trainer, which is relevant to her prior employment, but not that with the respondent. Dr Reiter apparently conflates the [appellant's] prior work as a track rider and trainer with her work with the respondent as a stable hand. There is no explanation as to how, if at all, the [appellant's] prior employment was taken into account by Dr Reiter when forming her opinion. It cannot be determined from that opinion whether the [appellant's] stated incapacity for work and requirement for right knee replacement surgery is a result of her duties as a stable hand with the respondent, her prior employment as a track rider and trainer, the underlying osteoarthritis condition, or some combination of those, and, if so, the extent of each.

1. While Dr Reiter referred to 'bending, squatting and kneeling to oil the horses' feet', which appears to refer to the [appellant's] work as a stable hand, the extent of contribution to any injury that her earlier work as a track rider and trainer may have been is not addressed. It was undoubtedly relevant because Dr Reiter specifically refers to knee injury in the historical context of track riding and training work. Delineation of the impact from each type of work is essential given they were markedly different duties for different employers at different times. The nature and degree of the pre-existing osteoarthritis is also not explained. It is therefore not possible to determine from Dr Reiter's report the effect the [appellant's] work as a stable hand had on the claimed bilateral knee condition."
2. Dr Robert Powell, orthopaedic surgeon qualified by the respondent, opined that there was no contribution from the employment with the respondent to the bilateral osteoarthritis affecting the appellant's knees.
3. The Member referred to a report of Dr Rozario, treating rheumatologist, dated 10 January 2008 concluding that Dr Rozario made no connection between the appellant's right knee and her employment at the time.
4. Dr Ihsheish, treating orthopaedic surgeon, reported on 27 July 2023 following an MRI. The Member concluded that no connection was made between the appellant's prior employment and the degenerative change in the knees. The Member said "[a]gain, no connection was made to the [appellant's] prior employment, but it was reported by Dr Ihsheish on 7 December 2023 that she had been encouraged to pursue 'weight control measures' to 'help with symptomatology', which would seem entirely unrelated to employment almost 10 years before."[5]
5. Finally, the Member referred to the report of Dr Rae, another orthopaedic surgeon who treated the appellant and reported on 8 January 2018 that she had a history of right knee pain for at least 3 to 4 years following a fall.
6. The Member concluded:

"38. The medical evidence establishes the [appellant] has a knee condition that causes disability, the right more so than the left. The disability is apparently serious, according to Dr Reiter a total right knee replacement will be necessary, and it can be reasonably inferred from the various medical reports that the condition is permanent given it has been longstanding and there is no indication it will resolve. Although the knee condition was not specifically identified as the cause, Dr Reiter considered the [appellant] unfit for employment, the extent to which the knee condition is responsible for that incapacity is unclear.

1. In any event, the medical evidence does not establish the [appellant's] knee condition is attributable to her employment with the respondent. Dr Reiter's evidence is not specific, and the other reports do not make any connection with the [appellant's] work for the respondent. I am not reasonably satisfied on the available evidence that any serious and permanent disablement the [appellant] may experience from a bilateral knee condition arose from her employment with the respondent. This means that the essential requirement at s 261(4)(b) of the 1998 Act is not present and so there is no basis for the [appellant's] late claim to be accepted. The [appellant's] failure to make a claim within the period required by s 261 thereby acts as a bar to the recovery of compensation."
2. That disposed of the appellant's claim but against the prospect that his conclusion was incorrect, the Member went on to express the view that "the medical evidence is not sufficient to establish her employment with the respondent was the main contributing factor that caused the worsening of an existing condition as is required by s 4(b)(ii) of the 1987 Act."[6]
3. The Member said:

"For the reasons already outlined above, Dr Reiter's findings lack sufficient precision, and I am unable to determine the extent to which, if any, the [appellant's] employment with the respondent contributed to her knee condition. There is no support for a work-related link from Dr Powell or the treating specialists."[7]

"The expert opinion provided by Dr Reiter suggests the [appellant's] work as a stable hand for the respondent is a relevant consideration for determining the cause of any worsening of an underlying osteoarthritis condition. It is not possible though, based on the specialist's report, to determine the extent of contribution from that employment. She did not adequately address the other factors relevant to the [appellant's] knee condition and provided no proper explanation for how the [appellant's] pre-existing condition was impacted by the various periods of work with different employers. I cannot determine whether the [appellant's] period of employment with the respondent would have been the main contributing factor in the circumstances and on the available evidence. In short, and on balance, the medical evidence does not support the [appellant's] claim that her employment with the respondent was the main cause of any worsening of her bilateral knee condition."[8]

1. The Member then referred to the claim for the left shoulder injury which was not disputed as to her claim but was disputed as to entitlement on the basis that the evidence did not establish an impairment greater than 10% as required by s 66 of the 1987 Act.[9] In the circumstances, as neither of the appellant's claims succeeded, the Member entered an award for the respondent.

1. The respondent submitted that the appeal could be dealt with on the papers. The appellant made no submission with respect to this issue. I am satisfied the materials and the parties' submissions are sufficient to enable me to determine the matter without an oral hearing. I proceed accordingly.

1. The jurisdiction exercised by the Personal Injury Commission under s 352(5) of the 1998 Act is constrained to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion and to correction of such error. Importantly the appeal is not a review or a new hearing. Nevertheless I am required, after making due allowance for the advantages enjoyed by the Member, to form my own conclusion on the matters asserted to be in error and give effect to my conclusion(s).[10]

1. There is no dispute that the monetary threshold is satisfied.

1. The appellant relies upon the following grounds of appeal:

(a) The Member erred in law in finding that the exception to s 261(4) of the 1998 Act did not apply (Ground 1).

(b) The Member erred in fact and law in not considering all the evidence in determining whether the appellant's employment with the respondent was the main contributing factor in the aggravation of her disease condition (Ground 2).

(c) The Member erred in fact and in law in finding that Dr Reiter's evidence was not specific and lacked precision in determining the extent that the appellant's work with the respondent contributed to her knee condition (Ground 3).

(d) The Member erred in law in finding that the appellant's employment with the respondent was not the main contributing factor to the aggravation of her bilateral knee condition (Ground 4).

GROUND 1 - THE MEMBER ERRED IN LAW IN FINDING THAT THE EXCEPTION TO S 261(4) OF THE 1998 ACT DID NOT APPLY

1. The appellant submitted that the test as to whether the worker comes within the exception to s 261(4) of the 1998 Act is whether he/she suffers from a serious and permanent disablement: Gregson v L & MR Dimasi Pty Limited.[11]
2. She submits that it is plain that she has a permanent disability affecting both knees and that she requires a right knee total replacement.
3. At paragraph [38] of his decision the Member accepted that the appellant had a serious and permanent disablement, but it is submitted that he fell into error in paragraph [39] by finding that the appellant's knee condition was not attributable to her employment with the respondent.
4. The appellant submits that whilst she needed to satisfy s 4 of the 1987 Act that employment was the main contributing factor to her disease, she was not required to do so to satisfy s 261(4)(b) of the 1998 Act. The issue of whether she satisfies s 4 of the 1987 Act forms no part of whether she has made a claim in time pursuant to s 261(4)(b) of the 1998 Act.

1. The respondent submits that where the claim was not made within 3 years, s 261(4)(b) of the 1998 Act requires an injured worker to establish:

(a) the failure to do so was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and

(b) the injury resulted in death or serious and permanent disablement.

1. Sub-section 261(4)(b) of the 1998 Act requires the compensable injury to which s 4 of the 1987 Act applies to have resulted in a serious and permanent disablement. The respondent quotes from Griffin v Qantas Airways Limited.[12]
2. The Member was required to determine whether the appellant had sustained injury to her knees for the purpose of assessing whether the injury had caused her to suffer serious and permanent disablement. The respondent submits it was open to and correct for the Member to find that the medical evidence did not establish the appellant's knee condition was attributable to her employment with the respondent. Further, the respondent submits that the Member correctly found the evidence did not establish serious and permanent disablement (for the purpose of s 261(4)(b) of the 1998 Act) resulting from injury, having found the evidence did not establish the appellant's bilateral knee condition arose from her employment with the respondent.

1. The appellant submits in reply that the Member committed an error in law in failing to determine whether the evidence established the serious and permanent disablement.

1. The particulars of Ground 1 of the appeal do not identify the error complained of by the appellant. As expressed, this ground of appeal is merely a complaint that the Member's ultimate conclusion was wrong.
2. The appellant's submissions do articulate the alleged error, namely that the Member erred in finding the "injury" in s 261(4) of the 1998 had to satisfy the definition of injury in s 4(b)(ii) of the Act.
3. For the reasons that follow this ground of appeal fails.
4. Section 261(4) provides:

"(4) The failure to make a claim within the period required by this section is not a bar to recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either -

(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(b) the claim is not made within those 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker."

1. It is not altogether clear from the text of the Member's reasons that he was satisfied that the first part of the provision of s 261(4), namely, the failure to make the claim was occasioned by ignorance, mistake or absence from the State or other reasonable cause, was satisfied. At [25] the Member makes an apparent finding that the appellant was not ignorant after 22 February 2019. The claim was made on 2 October 2024 and even allowing for the fact that the date the injury is received was, by virtue of s 261(6), the date upon which the appellant first became aware of the injury (12 March 2018) the date of claim was well outside the 3 year period.
2. But in any event, the text of s 261(4) is against this construction advanced by the appellant. Section 261(4) requires the injury for which compensation is claimed to be the injury that resulted in the serious and permanent disablement of the worker. In other words, if the events which led to the serious and permanent disablement were not an injury within the meaning of s 4 of the 1987 Act, the provision is not satisfied.
3. The appellant's attempt to construe s 261(4) as if there is no need for the injury to satisfy s 4 at the point of construing s 261 is not correct. It would furthermore be futile to allow the claimant to pursue out of time a claim in respect of an 'injury' when the claimant would ultimately fail because the definition of injury in s 4(b)(ii) was not satisfied.
4. Ground 1 of the appeal is dismissed.

GROUND 2 - THE MEMBER ERRED IN FACT AND LAW IN NOT CONSIDERING ALL THE EVIDENCE IN DETERMINING WHETHER THE APPELLANT'S EMPLOYMENT WITH THE RESPONDENT WAS THE MAIN CONTRIBUTING FACTOR IN THE AGGRAVATION OF HER DISEASE CONDITION

1. The appellant refers to her statement and submits "... that in both jobs she was bending down to clean stables and bent down and knelt to put oil on the feet of horses. Accordingly, based on her evidence the work she performed before working for the Respondent which would have caused an aggravation to her knee condition was for approximately 6 months whereas the similar work which she performed for the Respondent was for a period of between 4-5 years."
2. The appellant submits:

"based on this evidence it is more likely than not, that the work that she performed for the Respondent was the main contributing factor to any aggravation of her knee condition, given that it was over a much longer period than the work she performed prior to working for the Respondent."

1. The appellant submits furthermore that the MRI performed on the appellant's right knee dated 30 May 2008 which Dr Reiter refers to at page 4 of her report shows "no abnormality", whereas the MRI dated 12 September 2017 referred to by Dr Reiter at page 4 of her report shows "osteoarthritis in the lateral compartment". The X-ray of 28 September 2022 confirms osteoarthritis involving principally the patellofemoral and medial tibiofemoral compartments.
2. The appellant submits that that evidence showed there was a marked deterioration of the appellant's right knee condition after 2008 to which the Member failed to refer.
3. It is submitted that had the Member considered the radiological evidence together with the evidence of the period of time the appellant worked for the respondent, he would have determined that the appellant's employment with the respondent was the main contributing factor to the aggravation of her bilateral knee condition.

1. The respondent submits that the appellant's duties with her various employers changed over time. Therefore when considering whether the appellant's employment with the respondent was the main contributing factor to an alleged aggravation of a disease in her knees, the work factor under consideration with the respondent is confined to stable hand duties.
2. The respondent quotes the report of Dr Rozario dated 10 January 2008 and submits that there is no reference to the work with the respondent being causative of the knee complaints.
3. Likewise, the respondent submits that Drs Rae and Ihsheish did not obtain any history linking the injury to the appellant's knees with her employment with the respondent.
4. The respondent quotes from paragraphs [8] and [10] of the appellant's statement and emphasises the following passage:

"The problem with my knee started when I was riding because I had to ride short and that meant keeping my knees up high."

1. The respondent further submits that the appellant's statement makes no mention of her duties with the respondent as causing any problems with her knees.
2. The history obtained by Dr Reiter was that Ms Taylor injured her knees when working as a rider and trainer.
3. Dr Reiter's opinion was:

"In regard to her right knee, she has severe right knee osteoarthritis and mild left knee osteoarthritis which has been contributed to by her employment given that her role involved a lot of bending, squatting and kneeling to oil the horses' feet." (Emphasis added in the submissions)

1. The respondent submits that this history of injury is that the appellant injured her knee while working as a rider and a trainer, not as a result of her duties as a stable hand employed by the respondent. Dr Reiter did not record how long she spent bending, squatting or oiling horses' feet. Nor did the doctor take any history of the impact of the appellant's duties on her knees and the development of symptoms over time in the stable hand work.
2. Dr Reiter had access to the scans on the appellant's knees from 2008 to 2017. At its highest, Dr Reiter's opinion is that the appellant's duties had contributed to her bilateral knee osteoarthritis as they involved a lot of bending, squatting and kneeling to oil the horses' feet. But that does not satisfy the test of main contributing factor.
3. Furthermore, Dr Reiter's responses to questions 3 and 4 in her report are irrelevant because they are based on the history that the work was track work and stable hand work but she did not do track work when working with the respondent. In other words, the opinion depends on duties which the appellant did not do with the respondent.
4. After referring to Dr Powell's report and to the Member's reasons at paragraphs [41]-[44], the respondent submits:

"7.35 There is an absence of medical opinion which establishes the changes shown in the radiological investigations in 2017 and 2022, compared with investigations performed in 2008, were caused, or contributed to, by the appellant's employment with the respondent.

7.36 Member Halstead addressed the appellant's allegation of a worsening of the condition in her knees after 2008 and was not satisfied on the evidence [that] her employment with the respondent was the main contributing factor to the alleged injury to her knees."

1. The appellant refers to her statement where she says that the work involved "a lot" of bending down to clean stables. She says this qualifier is significant as it indicates that the appellant spent a lot of time performing that work.
2. After quoting Dr Reiter's report at page 6, the appellant submits that Dr Reiter is referring to her duties as a stable hand with the respondent for a period of 4 to 5 years.
3. It is submitted that while Dr Reiter considered the appellant's duties as a track rider played some part in the development of her bilateral knee problems, her description of her duties as a stable hand involving bending, squatting and kneeling to oil the horses' feet indicates she considered that work to be the main contributing factor to the development of her bilateral knee problems. The appellant submits that the respondent's analysis of the medical opinion of Dr Reiter is incorrect.
4. The appellant submits that the fact that she was ignorant of the fact that the work had contributed to the bilateral knee condition until 2018 explains her failure to provide a history of this connection to the GP and that the Member failed to take this into account in determining the causation issue.

1. Dr Reiter does not say or imply that the work performed as a stable hand was the main contributing factor to the aggravation of the bilateral osteoarthritis affecting the appellant's knees.
2. The history obtained by Dr Reiter was "According to Ms Taylor, she injured both knees when she was working as [a] rider and a trainer many years ago."[13]
3. In relation to the right knee, Dr Reiter says: "In regard to her right knee, she has severe right knee osteoarthritis and mild left knee osteoarthritis, which has been contributed to by her employment given that her role involved a lot of bending, squatting and kneeling to oil the horses' feet."[14] The "employment" in this passage is employment "as [a] rider and trainer".
4. Furthermore, as I read her statement, the worker did not give any history of "squatting". She said in paragraph [8] of her statement that she had to bend to clean the stables and that this caused knee problems, and she said in paragraph [10] that she was doing similar work with the respondent as a stable hand that involved a lot of bending down to clean stables. The appellant said she had to ride short and this kept her knees up "high" (statement paragraph [8]) and that when she worked for the respondent and "Hickman" (a former employer) she had to bend down to clean the stables (statement paragraph [8]) and that she had to do a lot of bending to put oil on the feet of the horses and she had to kneel (statement paragraph [10]). But she does not say anywhere in her statement that she was involved in squatting.[15]
5. It appears to me that Dr Reiter has assumed that she was squatting and the evidence does not establish that whilst working for the respondent she was required to do any squatting.
6. There is no medical evidence which would enable the conclusion that the work performed with the respondent was the main contributing factor to the osteoarthritis present in the appellant's knees. Accepting that the doctors were not required to use the expression "main contributing factor", the evidence overall had to be capable of an affirmative conclusion that the employment with the respondent was the main contribution factor to the injury. The evidence did not achieve this standard and the Member's conclusion adverse to the appellant was correct.
7. Ground 2 of the appeal is dismissed.

GROUND 3 - THE MEMBER ERRED IN FACT AND LAW IN FINDING THAT DR REITER'S EVIDENCE WAS NOT SPECIFIC AND LACKED PRECISION IN DETERMINING THE EXTENT THAT THE APPELLANT'S WORK WITH THE RESPONDENT CONTRIBUTED TO HER KNEE CONDITION

1. The appellant submits that Dr Reiter, in her report at pages 6 and 7, makes clear that she considers the work involved bending, squatting and kneeling to oil the horses' feet contributed to her developing osteoarthritis in both her knees and the acceleration of that condition. Furthermore, Dr Reiter quotes an evidenced based clinical resource in support of the proposition that kneeling, squatting and climbing created a higher risk of developing osteoarthritis.
2. In AV v AW[16] at [78] Snell DP held that the causal factors leading to the aggravation, work or non-work related, had to be considered. The appellant submits that Dr Reiter has expressed with sufficient specificity how causal factors were the main contributing factor. In addition, Dr Reiter's opinion must be considered in the context of the other evidence referred to earlier to which the Member failed to refer.
3. The respondent relies upon its submissions given in relation to Ground 2 in response to Ground 3. It quotes from Dr Reiter's report and says:

"7.45. That is, Dr Reiter was of the opinion the appellant's work duties as a trackwork rider (with her former employer) and stable hand had caused osteoarthritis in her knees. When addressing whether her employment as a stable hand (the relevant employment duties with the respondent) was causative of the osteoarthritis in her knees the doctor said they 'had been contributed to by her employment'. The opinion of Dr Reiter does not establish the [appellant's] employment with [the] respondent was the 'main contributing factor' to the alleged injury to her knees as required by s 4(b)(ii) of the 1987 Act."

1. The appellant submits that the Member did not engage in the process of evaluating all of the evidence as required by AV v AW. In particular he had not analysed Dr Reiter's evidence in full as, had he done so, he would have considered the appellant's employment was the main contributing factor to the aggravation of the bilateral osteoarthritis in her knees for the reasons set out in Ground 3 of the appellant's original submissions.

1. There are no additional submissions made under this ground of appeal than were made in support of Grounds 1 and 2 of the appeal. For the reasons given in relation to those grounds, this ground of appeal fails and is dismissed.
2. In addition and for the further reason identified in the respondent's submission at [7.45] which is correct the difficulty with Dr Reiter's opinion in terms of the requirements of s 4(b)(ii) of the 1987 Act that the employment contribution must be the "main" contribution to the aggravation.

GROUND 4 - THE MEMBER ERRED IN LAW IN FINDING THAT THE APPELLANT'S EMPLOYMENT WITH THE RESPONDENT WAS NOT THE MAIN CONTRIBUTING FACTOR TO THE AGGRAVATION OF HER BILATERAL KNEE CONDITION

1. The appellant submits that the Member found that the medical evidence did not support the appellant's claim by reference to Dr Reiter failing to refer to any non-work related factors contributing to her condition. The appellant submits that Dr Reiter, by deducting 10% in her assessment of impairment for the knees being a deduction for age, did consider non-work-related factors in her opinion. Accordingly it is submitted the Member, by failing to refer to the age deduction as well as the other matters referred to above, has erred as a matter of law in finding that the medical evidence did not support the appellant's claim that her employment with the respondent was the main contributing factor.

1. The respondent relies upon its submissions in response to Grounds 2 and 3 in response to Ground 4. The respondent submits that the Member was not in error, that the absence of a reference to the 10% deduction for age-related conditions would not alter the ultimate outcome because the evidence does not establish that the appellant's employment with the respondent was the main contributing factor to the condition in her knees.

1. The appellant refers to paragraph [44] of the Member's reasons and submits that that paragraph makes it clear that the Member did not take into account a 10% deduction of her age-related factors in coming to his conclusion.

1. The Member directed himself as to the test for the main contributing factor by reference to the decision of AV v AW (see [41] of the reasons). He correctly said that what was required was an evaluative process considering the causal factors to the aggravation, both work and non-work related. It is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process. The passage referred to by the appellant at paragraph [44] of the reasons needs to be considered in the context of paragraphs [41]-[43] inclusive. In [42] in particular the Member makes the point that Dr Reiter's findings lacked precision because he is "unable to determine the extent to which, if any, the [appellant's] employment with the respondent contributed to her knee condition."
2. It is not really a question of whether or not Dr Reiter took account of other factors, rather the Member's concern was that Dr Reiter's report did not provide him with a basis upon which he could determine the contribution of the appellant's employment with the respondent to the aggravation of the bilateral osteoarthritis.
3. Furthermore, the Member did not in [44] say that Dr Reiter did not consider other factors, what he said was: "She did not adequately address the other factors relevant to the [appellant's] knee condition."
4. Properly understood, the Member was directing attention in these passages to the absence of evidence sufficient to enable him to form a conclusion that the work with the respondent was the main contributing factor to the aggravation of the bilateral osteoarthritis affecting the appellant's knees. No error is established in the Member's approach to the evidence of Dr Reiter or the medical evidence generally.
5. Ground 4 of the appeal is dismissed.

1. The appeal is dismissed. The Certificate of Determination is confirmed.

1. The appeal is dismissed.
2. The Certificate of Determination dated 21 August 2025 is confirmed.

[1] Taylor v John Thompson Racing [2025] NSWPIC 424 (reasons).

[10] State of New South Wales v Culhana [2025] NSWCA 157, [91].

[11] [2000] NSWCC 47, per Burke J.

[12] [2010] NSWWCCPD 22, [228], [236].

[13] Application to Resolve a Dispute (ARD), p 2.

[15] Worker's statement dated 18 August 2023, ARD, pp 42-47.

[16] [2020] NSWWCCPD 9 (AV v AW).