1. Mr Usman claims he has sustained a consequential condition affecting his lumbar spine as a result of the injury he sustained to both knees, and he seeks payment by the respondent of medical expenses incurred for the treatment of his lumbar spine. The respondent disputes this claim on the grounds that this condition is not as a result of the injury sustained by

Mr Usman on 24 August 2020. 2. Mr Usman seeks an order that the respondent pay the costs of a right L4/5 foraminal discectomy proposed by his treating specialist, Dr Singh, and reasonable medical expenses associated with that surgery. This is opposed by the respondent as being not reasonably necessary as a result of the injury sustained by Mr Usman on 24 August 2020.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant has suffered a consequential condition affecting his lumbar spine as a result of the injury to both his knees;

(b) whether the respondent is liable to pay the reasonably necessary medical expenses incurred by the applicant for treatment of his lumbar spine condition which is a result of the injury to both his knees, and

(c) whether the right L4/5 foraminal discectomy proposed by Dr Singh is reasonably necessary as a consequence of the injury sustained by the applicant to both his knees in the course of his employment with the respondent on 24 August 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties attended a conference and hearing on 17 June 2025. 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. Mr Tanner appeared for the applicant, instructed by Mr Kerdum. Mr Rickard appeared for the respondent, instructed by Mr Hughes.

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

(a) Application to Resolve a Dispute and attached documents, and

(b) Reply with attached documents, but not the report of Dr Bodel dated

21 April 2022 other than the history recorded by Dr Bodel in that report.

1. There was no application to adduce oral evidence or to cross examine the applicant.

Whether the applicant has suffered a consequential condition affecting his lumbar spine as a result of the injury to both his knees

1. Mr Usman has provided statements dated 24 August 2022 and 13 December 2024.
2. The statement dated 24 August 2022 was provided after Mr Usman had undergone four operations to both his knees. He states that he continued to experience ongoing pain, discomfort in stiffness in both his knees despite undergoing those operations. He states that he walks with an abnormal gait pattern and that he compensates for loss of strength in his knees by relying on his lumbar spine. Mr Usman states that he began to notice a gradual onset of pain in his lumbar spine.
3. In his statement dated 13 December 2024, Mr Usman states that he was referred for a consultation with Dr Kam in August 2021 due to his ongoing lower back pain. He states that he obtained a second opinion from Dr Singh, a spinal surgeon, in September 2022.

Mr Usman understands that Dr Singh has recommended an operation for the lower back. He states that he needs to undergo this surgery because he feels that his condition is getting worse every single day. 4. Mr Usman states that his lower back condition "was asymptomatic" prior to the work injury, but he now has limited range of movement and motion in the lower back.

1. Mr Usman initially attended Dr Lingamameni at Priority Medical Centre following the injury he sustained at work on 24 August 2020. There are clinical notes in evidence from Priority Medical Centre from 25 August 2020 until 4 August 2022. Mr Usman then changes his general practitioners to Workers Doctors.
2. The entry made by Dr Lingamameni on 25 August 2020 includes:

Had a fall last week at work, backward and twisted both legs as he was pushing pallet"

Findings on examination record restricted flexion in both knees.

1. There is a record of 13 consultations that Mr Usman has with Dr Lingamameni between

28 August 2020 and 4 February 2021 regarding treatment for his knees. There is a record on 28 August 2020 of: "Limping gait ++" and "Using walking stick". 2. There is a record on 2 September 2020 of: "Gait antalgic, no limping". 3. There is a record on 29 September 2020 of: "antalgic gait +". 4. There is a record on 27 November 2020, which is about one months following Mr Osman's first operation, which includes: "Unable to walk without limping". 5. There is a record on 4 February 2021 of "ongoing back pain" which is the first reference to back pain after the initial reference to "upper back pain" on the day after the work injury. The entry for that consultation on 4 February 2021 also includes "good ROM" for both knees. 6. There is a record on 26 April 2021 of "Low back pain" and the right knee being unstable. 7. There is a record on 27 July 2021 which includes:

Getting down stairs is difficult and Rt knee gives away"

1. There is a record on 10 August 2021 of ongoing back pain and left sided sciatica, and of a referral for an MRI scan of the lumbar spine.
2. The clinical notes from Priority Medical Centre record that Mr Usman changes his general practitioner to Dr Islam within that same medical practice. An entry made by Dr Islam on

1. Mr Usman changes his general practitioners to Workers Doctors in August 2022 and the clinical notes from Workers Doctors up until 12 December 2024 are in evidence.
2. The notes made by Dr Lim at the first consultation on 24 August 2024 record that Mr Usman sustained knee and back injuries when he twisted his right knee while using a pallet jack.

Dr Lim records: "Due to the severity of his knee injuries, is back pain was not investigated until August 2021." 3. Dr Lim records that Mr Usman has an antalgic gait, restricted range of movement of both knees and reduced lumbar spine flexion and extension. Dr Lim opines:

"As a result of his work related R) knee injury has walked with an altered antalgic gait causing a L) knee and back aggravation."

1. There are further references to Mr Usman having an antalgic gait in notes made by the doctors at Workers Doctors, including on 14 September 2022, 11 September 2023 and

26 October 2023. 2. There is a report from Dr Kam, neurosurgeon, dated 28 October 2021. Dr Kam records that Mr Usman has had increasing lower back pain over the last few months, with an increase of pain into his left hip and buttock region, which is usually made worse when Mr Usman is bending and twisting. 3. Dr Kam provides a referral for bilateral L4/5 facet joint injections. Dr Kam does not provide an opinion as to the possible cause of the lower back pain being experienced by Mr Usman. 4. There are no clinical notes from Dr Singh or reports from Dr Singh to the general practitioner which are in evidence, but there are two reports from Dr Singh to Mr Usman's lawyers. It is apparent from those reports that Dr Singh has examined Mr Usman on four occasions. 5. In a report dated 4 April 2023, Dr Singh writes that Mr Usman injured his lower back at work in October 2020. He writes that Mr Usman presented with an antalgic gait and limited range of motion of the lumbar spine when an examination was conducted on 29 September 2022. He also writes that examination corresponds to the finding of a L4/5 annular tear and disc bulging. 6. Dr Singh opines:

"His history to me is that he had an injury when he injured his knee as well as his lower back. For several weeks and months afterwards, his knee pain was more than the back pain and treatment and attention was therefore concentrated to this joint. Following his knee interventions, he has been having limping gait and this has further aggravated his lower back pain. In my opinion, therefore, his back injury in the lumbar spine injury is related to the original injury sustained in the workplace."

"While it is possible that an antalgic and limping gait may result in the Aggravation of the lumbar spine injury, given his history of initial back pain it is more likely than not that the altered gait from the knee injury has resulted in further aggravation and failure to heal for his lumbar spine injury."

1. Dr Singh considers that it is likely that Mr Usman will ultimately require a L4/5 decompression and fusion, but his recommendation at this stage is for a decompression only.
2. In his report dated 21 March 2025, Dr Singh confirms his recommendation for surgery to relieve nerve compression at the L4/5 level. He also opines: "The nature of his job is the substantial contributing factor to his condition, subsequent incapacity and the need for further surgical intervention."
3. Dr Bodel, orthopaedic surgeon, provided a report at the request of Mr Usman's lawyers dated 21 April 2022, although that report is not relied upon by Mr Usman and is included in the Reply. Having regard to the restrictions on the admission of forensic medical reports set out in Reg 44 of the Workers Compensation Regulation 2016, the respondent only relies upon the history obtained by Dr Bodel.
4. Dr Bodel records as part of the history he obtained from Mr Usman:

"He has also had increasing back pain because of the persisting troubles with both knees. He cannot kneel or squat and therefore was bending his back a lot more."

1. Dr Burrow, orthopaedic surgeon, examined Mr Usman on 6 September 2021 via Telehealth at the request of the respondent and provided a report dated 8 September 2021.
2. Dr Burrow records that Mr Usman experienced bilateral knee pain on 24 August 2020 when he was moving pallets and twisted his right knee and fell to the ground. He records that

Mr Usman noted low back pain for the first time "a few months ago". There was no formal examination conducted by Dr Burrow because of the restrictions of a Telehealth examination. 3. Dr Burrow concludes:

"...it is grossly unlikely that lumbar back complaints are related to the work condition, there were no contemporaneous complained of back symptoms they only started a few months ago.

From a historical perspective, unilateral or bilateral ACL chronic deficiency is not associated with secondary back conditions. It is my opinion that the back condition is coincidental and is unrelated to the index work incident. It is more likely to be constitutional in nature."

1. Dr Burrow provides a further report dated 26 February 2024 following a file review. Dr Burrow reviews the clinical notes from Priority Medical Centre and concludes that Mr Usman's back condition did not become symptomatic until more than a year after the work injury.
2. Dr Burrow does concede that Mr Usman has an abnormal gait and is known to limp particularly with the right leg, but then states: "bilateral knee conditions in themselves very rarely lead to back problems". He states that it is highly unlikely that the back condition is due to abnormal gait, and that it is far more likely that this condition "is constitutional in nature and coincidental".

A summary of the submissions made by the parties to the dispute

1. Mr Tanner on behalf of Mr Usman submits that there is a considerable amount of contemporaneous material from Mr Usman's general practitioners which record the development of lower back pain following the work injury, as well as records of an altered gait, limping and instability of both knees. He submits that as a matter of common sense there must be a connection between those significant difficulties which Mr Usman has had with both knees and the onset and development of lower back pain.
2. Mr Tanner submits that Dr Singh explains that the development of Mr Usman's lower back pain is due to his altered gait, and no alternative thesis for that lower back pain is provided, especially having regard to Mr Usman being in his mid-thirties when he sustained the injury to both his knees and that he had no problems with his lower back prior to that work injury.
3. Mr Tanner submits that the opinion of Dr Burrow that "bilateral knee conditions in themselves very rarely lead to back problems" is a bald assertion and amounts to a bare ipse dixit_,_ and accordingly that opinion cannot be relied upon.
4. Mr Rickard on behalf of the respondent refers to the record made by Dr Lingamameni on the day after the work injury of "Upper back pain for a while" to submit that Mr Usman did not have a "pristine spine" prior to that injury as he has claimed.
5. Mr Rickard points out that the first specific reference to lower back pain in the notes from Priority Medical Centre is on 26 April 2021, which is some eight months after the work injury, and that the first reference to left leg pain, which now causes the need for surgery, is not until 10 August 2021.
6. Mr Rickard submits that there is nothing in the notes from Priority Medical Centre which connects the problems which Mr Usman was having with his knees to the subsequent onset of lower back pain.

1. The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:

"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 section 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.

The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss 'resulted from' the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648)."

1. Deputy President Roche then proceeded to state that the expression "results from" should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). President Kirby said in Kooragang at [462]:

"It has been well recognised in this jurisdiction that an injury can set 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 open to the Compensation Court to award compensation under the Act."

"...What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury... Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions."

1. I accept from a review of the material made available in this dispute that Mr Usman sustained a serious injury to both his knees on 24 August 2020. He subsequently underwent six operations to his knees over a three year period.
2. I accept from a review of the clinical records from Mr Usman's general practitioners that he has suffered significant disability as a result of that injury, which has caused him to walk with an altered or antalgic gait, to limp on occasions, and to have weakness and instability in his knees. I have referred to entries made in the clinical notes from Priority Medical Centre and Workers Doctors of Mr Usman walking with an altered gait, limping and lacking strength in both knees.
3. I also accept that limping, walking with an altered gait and having weakness in both knees is likely to place stress and strain upon the lower back. It is therefore quite understandable that Mr Usman was complaining to his general practitioner from at least eight months after the work injury of pain in his lower back.
4. Mr Rickard in his submissions queried the length of time that it took for symptoms in the lower back to be recorded by Mr Usman's general practitioner, in particular that it took a year for Mr Usman to complain to a doctor of pain in the left leg, which is now the reason for the surgery proposed by Dr Singh.
5. However, I agree with the submission made by Mr Tanner that it can sometimes take years for a consequential condition to develop and will depend on the mechanism which explains that condition. As Kirby P in Kooragang observed at [464], the "mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation", but rather the circumstances of each case and the opinion of expert evidence if required.
6. In this dispute the records made by Mr Usman's general practitioners, as well as Mr Usman's own evidence, reveal that the difficulties which Mr Usman has had with ambulation coincide with the onset of lower back pain. Furthermore, the connection between those difficulties and Mr Usman's lower back pain is addressed by the opinion of his treating neurosurgeon,

Dr Singh. 7. Dr Singh is well placed in his position as the treating specialist, and who has examined

Mr Usman on at least four occasions, to provide an opinion on the causal connection between the problems which Mr Usman has had with walking and ambulating, and the onset of lower back pain. Dr Singh is confident to opine that "it is more likely than not that the altered gait from the knee injury has resulted in further aggravation and failure to heal for his lumbar spine injury." 8. I prefer the opinion of Dr Singh because of his role as Mr Usman's treating specialist and his ability to explain the connection between Mr Usman's altered gait and the aggravation of lower back pain. It is plausible, logical and consistent with the records made by Mr Usman's general practitioners. 9. I prefer the opinion of Dr Singh over that of Dr Burrow. Dr Burrow concedes that Mr Usman does have an abnormal gait and is known to limp, but he does not enquire as to why those restrictions would be at least a cause of Mr Usman's lower back pain. He merely offers a generalised view that "from a historical perspective...bilateral ACL chronic deficiency is not associated with secondary back conditions" and that it is highly unlikely that the lower back condition is due to an abnormal gait. 10. Dr Burrow also only sees Mr Usman by video link on the one occasion, and it is almost four years now since that one and only examination. Dr Burrow has not had a more recent opportunity to speak to Mr Usman and it does not appear that he has had the opportunity to review a more recent MRI scan taken of the lower back on 9 February 2024. That further information would have allowed for a more up to date interrogation of the question of whether there is a causal connection between Mr Usman's abnormal gait (which Dr Burrow accepts) and the development of lower back pain. 11. Finally, Dr Burrow concedes that he is not a spinal surgeon, although he states that he has general training in orthopaedic spinal surgical management. That does reduce the weight to be given to this opinion when compared to the opinion of a treating spinal surgeon. 12. Mr Rickard refers to the entry of "ongoing back pain" made by Dr Lingamameni on

4 February 2021, as opposed to a specific reference to lower back pain, to query whether that piece of evidence can be relied upon by Mr Usman to support the necessary causal connection for this particular claim. He also refers to the entry of "Upper back for a while" on the day after the work injury to query whether Mr Usman did have a "pristine spine" prior to the work injury. 13. However, as Santow JA observed in Nominal Defendant v Clancy [2007] NSWCA 349 (Clancy) at [54], clinical notes "should not be construed with the minute attention one might give to a formal legal document". Instead, when the clinical notes from Priority Medical Centre and Workers Doctors are considered in their entirety, it is apparent that there is a co-relation between the difficulties which Mr Usman has had with his knees and the onset of lower back pain. 14. Furthermore, there is simply no way of knowing if "for a while" just means for some time after Mr Usman sustained injury at work on 24 August 2020 or for a period of time before that. The respondent has not sought to obtain any clinical notes from before 24 August 2020 to pursue this particular submission. 15. Mr Rickard also refers to the details obtained by Dr Bodel that Mr Usman's experience of increasing back pain has coincided with him was bending his back a lot more. He submits that this is not consistent with the cause of lower back pain that is advanced by Mr Usman in this dispute. 16. However, that is only a reason volunteered by Mr Usman. A review of all the available evidence supports a finding that Mr Usman's altered gait, limping and lack of strength in the knees as a result of the injury to both his knees has led to the development of lower back pain. 17. From a review of the clinical notes from Mr Usman's general practitioners, the evidence of

Mr Usman, and the opinion of Dr Singh, I am satisfied that the injury sustained by Mr Usman to both his knees on 24 August 2020 has set in train a series of events which has led to a condition affecting his lumbar spine.

(a) that the respondent is to pay for the cost of an MRI scan of the lumbar spine performed at Rouse Hill Radiology on 9 February 2024 and which amounts to $240;

(b) a general order for the respondent to reasonably necessary medical treatment of the lumbar spine as a consequence of the injury sustained by the applicant on

24 August 2020, and

(c) that the respondent is to pay the costs of a right L4/5 foraminal discectomy proposed by Dr Singh, and reasonable medical expenses associated with that surgery.

1. The MRI scan performed on 9 February 2024 is for the ongoing treatment of the lumbar spine and the cost of that scan should be met by the respondent.
2. A general order for the payment of reasonably necessary medical expenses for an injury or condition can be of "limited efficacy" (see Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 at [55]). However, Mr Usman is entitled to the benefit of such an order having been successful in establishing that he has a consequential condition affecting his lumbar spine as a result of the injury to his knees on 24 August 2020.
3. In his reports dated 4 April 2023 and 21 March 2025, Dr Singh identifies damage at the L4/5 level, which he considers has been aggravated by Mr Usman's altered gait. The report dated 4 April 2023 includes a response to a question regarding a left L4/5 endoscopic decompression, whereas the report dated 21 March 2025 includes a response to a question regarding a right L4/5 foraminal discectomy.
4. The quote issued by Dr Singh for surgery (ARD 369) is for a right foraminal discectomy, and the claim made in the ARD is for the respondent to pay the costs of a right foraminal discectomy.
5. In his report dated 21 March 2025, Dr Singh writes that the aim of the surgery is to relieve the nerve compression caused by the L4/5 disc herniation, thereby improving the leg pain and some improvement of the back pain. His hope is that Mr Usman will be able to return to the workforce.
6. Dr Singh writes that the other alternatives are a decompression and fusion, but this should be delayed if possible, or a trial of chronic pain management, although this is not recommended for a healthy 36 year old man.
7. In his report dated 26 February 2024, Dr Burrow states that he is not a spinal surgeon and considers that an opinion from an operating surgeon regarding the proposed surgery would be appropriate. He notes that decompression surgery is usually indicated to relieve radicular symptoms, and that Mr Usman has not complained of such symptoms, and that decompression surgery has a relatively lower success in improving stand-alone back pain.
8. Mr Rickard on behalf of the respondent did not make any submissions which were specifically directed to the question as to whether the proposed surgery is reasonably necessary as a result of the work injury. The respondent preferred to address the threshold issue of whether Mr Usman has suffered a consequential condition affecting his lumbar spine as a result of the injury to his knees.
9. Dr Singh has examined Mr Usman on four occasions over a two year period. He has concluded that conservative treatment has been of no benefit to Mr Usman. He has provided reasons as to why the proposed surgery is likely to beneficial, being that it aims to relieve nerve compression. Dr Singh has explained why it is worth proceeding with a less invasive procedure of a foraminal discectomy as opposed to a decompression and fusion at the present time.
10. Dr Singh also considers that the procedure he has proposed will give Mr Usman a chance to return to the workforce, which is an objective stated in s 3 of the Workplace Injury Management and Workers Compensation Act 1998.
11. The reasons provided by Dr Singh for the proposed surgery therefore meet the criteria set out in the decisions of Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWCCPD 72. The opinion provided by Dr Burrow is diminished by not having specific expertise in spinal surgery and not having seen Mr Usman for almost four years.
12. There will be an order that pursuant to s 60 (5) and s 61 (4A) of the 1987 Act, the respondent is to pay for the costs of the right L4/5 foraminal discectomy proposed by Dr Singh, and reasonable expenses related to that surgery.