Ali v IN2F Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ali v IN2F Services Pty Ltd [2024] NSWPIC 346
APPLICANT:	Muhammad Rajab Ali
RESPONDENT:	IN2F Services Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	28 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation; section 66; consequential condition to the lumbar spine; accepted injury to the right knee; Bouchmouni v Bakhos Matta t/as Western Red Services and Nguyen v Cosmopolitan Homes considered; Held – the applicant suffered a consequential condition to the lumbar spine as a result of an accepted right knee injury; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition to his lumbar spine, as a result of the accepted injury to his right knee on 28 August 2021. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 28 August 2021 – Personal Body systems / parts: right lower extremity (knee) scarring (TEMSKI) lumbar spine Method of assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 15 April 2024, and attached documents; (b) Reply to Application to Resolve a Dispute dated 6 May 2024, and attached documents, and (c) a copy of this Certificate of Determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for lump sum compensation for permanent impairment in respect of an accepted right knee injury and disputed consequential condition to the lumbar spine, pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). For the reasons discussed below, the applicant has established that he suffered a consequential condition to his lumbar spine and the matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of the injury.

BACKGROUND

On or about June 2015, Muhammad Rajab Ali, the applicant worker, commenced work for the respondent as a cleaner.
On 28 August 2021, the applicant sustained an injury to his right knee (fractured patella) as a result of tripping over electrical wire at the respondent’s premises.
The respondent accepted the injury to the applicant’s right knee and paid compensation.
On 8 September 2021, the applicant underwent surgery to repair the fractured patella, and latter further surgery on or about January 2022 to remove tension band wire which was affixed to the patella for temporary support.
The applicant claims that he continues to suffer pain in his right knee, and, in addition, pain in his lumbar spine as a consequence of the original injury. The applicant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act.
The respondent’s insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), declining the claim for lump sum compensation pursuant to s 66 of the 1987 Act. This was on the basis that the accepted right knee injury had not resulted in more than 10% whole person impairment and liability for the claimed consequential condition of the lumbar spine was denied.
On 15 April 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for lump sum compensation where liability was in dispute.
On 6 May 2024, the respondent lodged a Reply.

ISSUE FOR DETERMINATION

The following issue is in dispute:
(a) whether the applicant suffered a consequential condition to his lumbar spine as a result of the accepted injury to his right lower extremity (knee) on
28 August 2021.
It is agreed by the parties that following the determination of the above issue, the matter should be remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment arising from injury on 28 August 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 13 May 2024, the parties attended a preliminary conference. During the preliminary conference, the Application to Resolve a Dispute was amended, by consent, to plead:
(a) “Scarring (TEMSKI)” as a body system claimed for permanent impairment compensation.
On 6 June 2024, the parties attended a conciliation conference and arbitration hearing. Mr Carney, of counsel, appeared for the applicant instructed by Mr Afgan, solicitor, of Sher Legal. Mr Stiles, of counsel, appeared for the respondent instructed by Mr Murray, solicitor, of Lee Legal Group.
The applicant requested the services of an Urdu interpreter for the conciliation conference and arbitration hearing, but due to an administrative error an interpreter was unavailable. The applicant indicated that he wished to proceed in the absence of an interpreter, and with the assistance of his wife as a support person.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing. The hearing was recorded and is available to the parties.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 15 April 2024, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 6 May 2024, and attached documents, and
(c)    Direction, dated 13 May 2024.

Applicant’s statement

In evidence is a statement made by the applicant, dated 15 April 2024. The applicant states that on 28 August 2021 he suffered an injury to his “right knee as a result of tripping over electrical wire that was lying on the floor” at the respondent’s premises. The applicant states that he fractured his right patella and underwent knee surgery by Dr John Fox to repair it on 8 September 2021.
The applicant states that he was discharged from hospital, after the September surgery, with his knee in an extension brace and on crutches. He remained in the brace until about February 2022. He also states that the metallic implant (or tension band wire) was removed from his knee on 19 June 2022.
The applicant contends that he was still experiencing acute pain in his knee. He also contends that he developed “left-sided lower back and loin pain which came on gradually after the removal of the tension ban wire”. He states that his lower back was “completely normal up until the removal of the tension ban wire”.
The applicant adds that he walks with an “altered gait and pattern on the right-hand side and hardly bends the right knee”. He further adds that he has recently seen Dr Fox for his increasing pain but the doctor could not identify the cause of the worsening of his pain. Dr Fox referred the applicant to Dr Lieu. The applicant states that Dr Lieu said his knee never fully settled and there is moderate to severe pain in his knee which is worsened by activity.
The applicant adds that nothing has helped to reduce his pain.

Clinical notes

In evidence are several sets of clinical notes from the applicant’s treating general practitioner Dr Nurul Islam. The clinical notes appear to end on 5 April 2024.
On 21 November 2016, Dr Islam records the applicant had “pain midback” and nil traumatic injury. He notes that it is “mild tender” but all movements are normal and “imp-muscular pain”. He prescribed Voltaren and recommended rest and back exercise.
On 30 November 2016, Dr Islam records that the applicant has had back pain for a long time with nil trauma and mild stiffness. He notes movements full and “imp-back pain”. The applicant was referred for an X-ray of the thoracic and lumbo-sacral spine.
On 7 December 2016, Dr Islam records that he provides the X-ray findings to the applicant and recommends simple analgesic, rest and back exercise.
On 2 November 2021, Dr Islam refers to the work incident and records that the applicant is “having left side heel pain and left sided back pain” and notes “low back pain”. He issued a prescription for Voltaren.
On 31 January 2022, Dr Islam records that the metal in the patella has been taken out by Dr Fox. He notes that the applicant is still in pain and having physio.
On 20 February 2023, approximately 12 consultations after 2 November 2021, Dr Islam records lumbar back pain. Dr Islam records:
“having back pain lumbar back
stiff lower back
tender parvertebral muscles
restricted flexion
?disc bulge /facet OA
adv CT lumbar spine”
Dr Islam refers the applicant for a CT scan of the lumbar spine and prescribes Lyrica and Voltaren.
On 14 March 2023, Dr Islam records the results of the CT scan noting disc bulge at L4/5 and L5/SI. He recommends rest, analgesic and physio.

Kendrick Law

In evidence are the physiotherapy consultation notes of Kendrick Law, the applicant’s treating physiotherapist. The consultation notes refer to the work incident and observations of an antalgic gait, use of Canadian crutches and pain in the knee, consistently from 15 September 2021 to 12 January 2022.
On 8 October 2021 to 13 Oct 2022, it is recorded that the applicant is increasing weight bearing tolerance (presumably on his right knee/leg).
On 14 January 2022, it is recorded that the applicant continues to have a dull ache in “R) hip” and his “[a]ntalgic gait - faster gait today”. This observation is made consistently until 10 February 2022.
On 12 January 2022 and 14 January 2022, it is recorded that the applicant will have the tension band wire removed on 19 January 2022.
On 28 January 2022, it is recorded that the applicant has felt improvements since “taking out wire” but still unable to weight bear.
The last entry is on 10 February 2022, where it is recorded that the applicant can walk for a minute with Canadian crutches.

Dr John Fox

In evidence are several reports from Dr John Fox, the applicant’s treating orthopaedic surgeon. The focus of these reports concern the accepted right knee injury and related treatment.
In his report of 19 October 2021, Dr Fox records that it had been four weeks post the right knee surgery. He notes that since the applicant had become mobile there are a couple of other areas which have become sore – “his left heel and the other is his right hip area”. He recommends reassessment by a physiotherapist and ongoing physiotherapy three times a week.
In his report of 10 February 2022, Dr Fox records that the hardware was removed from the right knee patella on 19 January 2022. He notes that the applicant is still walking with the use of two crutches and does not have full extension. He adds that there are “[n]o signs of any other complication”.
On 7 April 2022, Dr Fox records that the applicant continues to have weakness in the right leg, it gives way and is still using a crutch for mobilisation. He notes that given the applicant’s “relative immobility and dependence on a crutch” he certified him unfit for work. He recommends follow-up with Dr Islam, to “save him travelling” to see him, and further physiotherapy.

Dr David Lieu

In evidence is a report from Dr David Lieu, treating orthopaedic surgeon, to Dr Islam, dated 19 February 2024. Dr Islam referred the applicant to Dr Lieu for assessment of his right knee problem. In his report, Dr Lieu states that the applicant’s right knee problems never fully settled and the pain is poorly controlled with medication. He recommended referral to another doctor for consideration of a course of PRP injections to the patella to improve his symptoms.
Dr Lieu also records that the applicant is “developing secondary back and hip pain” but notes that his hip and back were “non irritable”. He also adds that “[c]linically” the applicant “walks with an antalgic gait pattern”.

Radiological evidence

In evidence are several radiological reports of the right knee and lower back.
The X-ray report of the thoracolumbar spine, on 30 November 2016, records “no compression fracture, degenerative spondylosis or facet joint osteoarthritis seen in the thoracolumbosacral spine.” It adds mild curvatures of the thoracolumbar spine and no spondylolisthesis.
The X-ray report of the right knee, dated 10 February 2022, records findings of the interval removal of the “cerciage wires of the patella” and that the wire tracks were faintly visible. It also records that the patellar fracture appeared healed.
On 20 February 2023, Dr Islam refers the applicant for a CT scan of the lumbar spine. The CT scan is not in evidence, but appears to have been reviewed by Dr Bodel and Dr Machart.

Dr James Bodel

In evidence are two reports from Dr James Bodel, dated 25 November 2022 and
22 February 2023.

25 November 2022 Report

In his first report, Dr Bodel provides a history of the work incident on 28 August 2021. He records that the fracture to the patella was reduced using tension wire technique on 8 September 2021. He also records that the applicant was discharged home with his knee in an extension brace and he was on crutches. The applicant remained in the brace until February 2022 and on 19 January 2022 had the metallic implants (tension band wire) removed from the right patella.
Dr Bodel records the applicant’s current complaints as anterior right knee pain and right knee stiff (cannot kneel, quat or climb).
Dr Bodel also records his findings on examination. He records that the applicant “walks with a very stiff-legged gait pattern on the right-hand side and hardly bends the right knee”. He adds that “[h]e has good range of back movement and no impairment of straight leg raising”.
Dr Bodel comments on the documentation provided, and refers to the series of reports from Dr Fox and also the “local doctor’s continuation notes”.
In response to a question whether the applicant suffered a consequential condition as a result of the workplace injury, Dr Bodel states:
“The claimant does not appear to have suffered any consequential injury in this circumstance.
His pathology is localised to the right knee only. His left knee functions normally and he has no complaint of back pain.”
Dr Bodel assesses the applicant to have a 17% whole person impairment in respect of the 28 August 2021 injury, comprising of 16% in respect of the right lower extremity and 1% in respect of scarring.

22 February 2023 Report

In his supplementary report, Dr Bodel records a summary of the injuries, to include a fracture of the right patella, injury to the lower part of the back and pain of uncertain origin in the left heel. In the history, Dr Bodel records:
“The story, which was not provided last time, relates to his lower back. He developed left-sided lower back and loin pain which came on gradually after removal of the tension band wire. He also developed pain in his left heel and an ultrasound was done of that region which showed no diagnostic pathology.
He is having treatment in the form of physiotherapy for the back and the knee and the insurer has accepted liability for this again, based on the history given here today.”
Dr Bodel states that the applicant’s circumstance has stabilised. He has left-sided lower back pain. He adds that the applicant states that “his pain is in his ‘hips’ and the area pointed to is the buttocks, which is referred pain from the back. He has no separate pathology in the hip joints…”
Dr Bodel says that the applicant has had no new accident or injury, although it appears that he developed a “gradual onset of left-sided lower back pain and left heel pain. This came on without accident or injury. He has only recently been investigated and he has some asymmetry of back movement”.
Dr Bodel records his findings on examination. He finds that the applicant has a “pronounced right-sided limp and he uses the crutch on the right-hand side”.
Dr Bodel acknowledges the additional history of the back and heel pain was not provided previously. He states that the applicant’s wife indicated that “she misunderstood the question that was asked of her about other matters that have occurred since the fall” and now clarified that the applicant “has developed back pain, particularly after removal of the metallic implants, and he has also developed heel pain”.
Dr Bodel records that the applicant has evidence of asymmetry of back movement which is associated with the back injury. He refers to the CT scan of the back, which shows early degenerative change at L4/5 and L5/S1. He states that the back pain “is a consequential condition because of the still pronounced limp on the right-hand side associated with the fracture”. Dr Bodel finds that the applicant developed a gradual onset of left-sided lower back pain, which he assessed at 7% whole person impairment of the lumbar spine. This resulted in a 23% whole person impairment, having combined the assessment of the right knee and scarring.

Dr Frank Machart

In evidence is a report of Dr Machart, orthopaedic surgeon, dated 24 July 2023, qualified by the respondent. Dr Machart records a history of injury to the applicant’s right knee and surgery in the nature of open reduction and internal fixation and latter removal of the surgical implant (tension band wire) at the hand of Dr Fox. He also records that the applicant continues to have pain and stiffness in the right knee, and pain over both buttocks following the second surgery.
Dr Machart records pain in both hips and thoracolumbar spine. He refers to the CT of the lumbar spine and notes disc bulges. He states:
“The hypothetical of altered gait causing lumbar spine symptoms is not supported by evidence. He was using crutches until the time after the second operation. Using crutches does not cause strain on the lumbar spine. Crutches relieve strain on the lumbar spine, traditional treatment of lumbar conditions. Walking capacity substantially diminished by self-reporting. He is not working. Stresses on the lumbar spine are less than one would have been in absent of the injury.
…
I did not see evidence of additional or consequential injury explaining pain in hips, lumbar spine, or in the left heel.”
Dr Machart states that the pain is experienced at the thoracolumbar level. He adds that the scans imaged bulges at L4/5 and L5/SI, which he said was “physiologically unrelated and away from the spinal symptomatic area”.
Dr Machart comments on Dr Bodel’s reports, and notes that he records no consequential injury and that three months later that there was but it is “not clear why there was divergence”. Dr Machart assesses the applicant’s whole person impairment at 5%, comprising of 4% for the right knee, 1% for scarring and 0% for the lumbar spine. In respect of the lumbar spine, Dr Machart assesses the applicant in DRE 1 category but at 0%. Dr Machart states that the lumbar spine is “[n]ot related to the pathology of injury”.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant refers to his statement evidence that provides a description of the incident on 28 August 2021. He notes that, on 8 September 2021, he underwent surgery on his right patella at the hand of Dr Fox. Dr Fox affixed tension band wire to the patella and the applicant was given an extended knee brace when discharged home from hospital.
The applicant submits that as early as 19 October 2021 he was attending physio and Dr Fox requested that the physio reassess the applicant because there were a couple of other areas which were becoming sore. The applicant concedes that those areas were the left heel and right hip; not the lower back.

The applicant refers to the evidence of Dr Lieu. In his report of 19 February 2024, Dr Lieu states that the applicant is developing secondary back pain and hip pain. He also notes that the applicant walks with an antalgic gait pattern. The applicant concedes that this was 12 months after the tension wire was removed, but asserts that “one would expect that there would be some delay in becoming apparent”.
The applicant then refers to Dr Islam’s clinical notes dated 2 November 2021 where it is recorded that the applicant has low back pain, demonstrating a developing problem in the lower back noting that the fall had only been three months prior. The applicant adds that the clinical notes are not really that specific and note that he is “in pain”. The applicant concedes that Dr Islam does not really expand much on what the pain is except to say that in November 2021 that he was starting to experience lower back pain or had experienced it as well as pain in the ankle and right side of the back.
The applicant asserts that some of the pain, if not all, was caused by his mobility increasing after the operation. The applicant then states that a key part of his case is “the limp” and refers to the physiotherapist notes. The applicant asserts that in every physiotherapy attendance there is a note of an antalgic gait. The applicant contends that the notes show that he is increasing his mobility from mid-October 2021, and is able to stand without crutches from 20 October 2021. However, there is not a full range of movement in the right knee and there is pain. The applicant then refers to the record of pain in the contralateral hip abductors. The applicant submits that over time it would appear because of the antalgic gait and increase in weight tolerance that other parts of the body were starting to hurt or become a problem. The applicant also notes that this was before the removal of the tension band wire.
The applicant refers to Dr Islam’s consultation note of 20 February 2023, noting “back pain lumbar back stiff lower back” and that this resulted in a referral for a CT scan of the lumbar spine.
The applicant states that the treating material discloses that there were complaints made in relation to the lumbar spine, from November 2021 which is before the applicant says that he started experiencing pain to well after that date.
The applicant then refers to the report of Dr Bodel, who finds that pain is because of the changing gait. The applicant concedes that the complaint of the back was not recorded in Dr Bodel’s original report, but “we are not told” what questions were asked of the applicant or whether he had the benefit of an interpreter. The applicant refers to Dr Bodel’s supplementary report, where he records a history that the story which was not provided last time related to his lower back and that he developed left side lower back and loin pain gradually after removal of the tension band wire. Dr Bodel finds that the back pain is a consequential condition because of the still pronounced limp on the right hand side associated with the fracture of the patella.
The applicant contends that there was a fall in 2019, which did not seem to be significant as he did not get a lot of treatment. There is evidence of pain in the back in 2016 when the applicant was prescribed Voltaren, but was not prescribed that medication again until six years later after the subject injury.
The applicant refers to the report of Dr Machart. The applicant contends that there is no reference in that report to the applicant’s limp and that this is significant, as there is ample evidence of this in the physiotherapist notes, Dr Lieu and Dr Islam’s evidence. Dr Machart refers to a “hypothetical altered gait” causing lumbar symptoms which is not supported by the evidence, but the appellant submits that this is contrary to the evidence which shows the altered gait pre-dated and post-dated the use of crutches. Dr Machart notes that the applicant was using crutches and this does not cause strain on the lumbar spine. However, the applicant asserts that, no one said that the use of crutches was causing back pain but that it is the altered gait.
The applicant asserts that he has had a prolonged period where he had a limp. Dr Bodel explains this caused the back pain. There is no doubt that the applicant had lower back pain and on the balance of probabilities this occurred because of the condition in the knee.

Respondent’s submissions

The respondent submits that there is some confusion about the date of the removal of the hardware (tension band wire) in the patella, which is important because the applicant says his back symptoms developed from when the hardware was removed. The applicant states that it was removed on 19 June 2022, and that his lower back was completely normal before. However, the respondent asserts that, the evidence indicates that the hardware had been completely removed from the beginning of 2022. The physiotherapist notes indicate that the wire was removed on 19 January 2022. Dr Islam also states, on 31 January 2022 that the metal had been removed by Dr Fox. Further, Dr Fox says, in a report dated
10 February 2022, that all the hardware had been removed.
The respondent refers to the clinical notes from November 2021, three months post the subject incident, which refer to heel and left sided back pain and prescribes analgesics. However, the respondent asserts that, it is not clear where this back pain comes from. This, the respondent submits, is not consistent with an allegation of a consequential condition that “was a long term boil as a result of altered gait”.
The respondent submits that the next reference to back pain is in February 2023, when he is referred for a CT scan.
The respondent then submits that the first reference to the back, after the removal of the tension band wire, is 20 February 2023. That is more than a year after the hardware has been removed. The respondent contends that this is consistent with Dr Bodel’s original report, where there is no record of any complaint of back pain or symptoms. Dr Bodel states that the applicant does not appear to have suffered any consequential condition and there is no complaint of back symptoms. Dr Bodel also states that the applicant’s pathology is localised to the right knee and there is no complaint of back pain. The respondent submits that this is consistent with the clinical notes and records.
The respondent refers to the CT scan of the lumbar spine dated 25 February 2023, and notes disc building at L4/5 and L5 which seems to be developmental or congenital in nature.
The respondent submits that there is no reference in the physiotherapy entries to the back.
The respondent then refers to the report of Dr Bodel. Dr Bodel in his supplementary report takes a history that there was never a history of low back pain, but this history is incorrect. There is evidence that the applicant sought treatment for his back pain in 2016 for which he was referred for an X-ray. Nothing can be made from the fact that the CT scan revealed evidence of pathology, when compared to the X-ray, as they are different scans taken over different periods. The respondent concedes that there was a fairly large gap between 2016 and the onset of further back symptoms in 2023, but Dr Bodel did not have regard to that history.
The respondent submits that Dr Bodel finds that the low back pain was a result of a gradual onset since the removal of the hardware in the patella, but the applicant never made any complaints to his doctors. Dr Bodel has not explain why his opinion has changed so dramatically in the three months from November report to February report. It is not clear whether the applicant had been developing his gradual onset of back symptoms as a result of an antalgic gait over many years or since the tension band wire had been removed at the beginning of 2022. It would have been apparent at the assessment in November 2022 and February 2023.
The respondent concedes Dr Islam refers to complaint of back pain in February 2023, but does not say anything about causation or whether it is linked to an antalgic gate, the injury or anything.
The respondent adds that Dr Lieu does not explain how or why the applicant has developed secondary back and hip pain or dealt with causation. Although, the respondent concedes that Dr Lieu is a treating doctor.
The respondent relies on the report of Dr Machart. Dr Machart takes a history of knee, back and hip pain. He has the benefit of the CT scan and says the findings are consistent with the applicant’s age. He adds that the hypothetical suggestion of the altered gait causing lumbar symptoms is not supported by the evidence. He notes that the use of crutches are not there to strain or cause strain on the lumbar spine, but to relieve it. He concludes that there is no evidence of a consequential condition in the lumbar spine.

Applicant’s submissions in reply

The applicant states that he noticed pain in the back some time after the removal of the tension band wire from the patella. It took almost a year before he was making a lot of complaint about it, and this is consistent with a gradual onset of a problem in the back.

FINDINGS AND REASONS

This dispute turns on whether the applicant sustained a consequential condition to his lumbar spine, as a result of the accepted injury to his right knee on 28 August 2021. This issue requires determination before the matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment arising from injury on 28 August 2021.
The Commission (and former Workers Compensation Commission) has issued many decisions concerning consequential conditions and the applicable law. These decisions confirm that it is not necessary that an applicant worker establish that an alleged consequential condition is an “injury” within the meaning of s 4 of the 1987 Act.[1] Nor is it necessary for an applicant to establish that the employment was a substantial contributing factor within s 9A of the 1987 Act or the main contributing factor for a disease injury. An applicant need only establish that the consequential condition resulted from the accepted injury. This requires taking a common sense consideration of the chain of causation.[2] It also requires consideration and determination of questions of fact.[3]
[1] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni); Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar).
[2] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 464C.
[3] State of New South Wales v Bishop [2014] NSWCA 354.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[4] Roche DP said:
“It is accepted law that if an ‘injury’ is aggravated by medical treatment, or if the treatment adopted to remedy the injury causes a secondary condition, the total condition is attributable to the original incident or event (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR at 172).”
And:
“… It was no part of Mr Bouchmouni’s duties to have surgery on his knee or to walk with an altered gait. Those things arose because he suffered an injury to his knee in the course of his employment. If a further medical condition has resulted from the treatment of the knee injury (or from an altered gait because of knee symptoms), as has happened in this case, that condition (the back condition) has resulted from the injury but is not itself an ‘injury’.”[5]
[4] Bouchmouni.
[5] Bouchmouni, [70], [73] (per Roche DP).
It is well accepted that the applicant bears the onus of proof, to establish his case on the balance of probabilities.[6] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[7] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[8]
[6] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[7] [2008] NSWCA 246.
[8] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).
It is the applicant’s case that his lower back symptoms are as a result of his antalgic gait which has been brought about by his accepted right knee injury, and that he started to develop lower back pain gradually following the removal of the tension band wire in his patella. I accept the applicant’s general submissions in support.
Consistent with the applicant’s statement evidence, several medical practitioners have identified that over time the applicant had an altered gait (or limp), which persisted while the pain and mobility in the right knee fluctuated overtime. That evidence includes:
(a)    Mr Law, physiotherapist: From 15 September 2021 until 10 February 2022, the last clinical entry, it is recorded that the applicant has pain in his knee (presumably the right knee which was under treatment) and an antalgic gait. The records also indicate that from 14 January 2022 until 10 February 2022 it is recorded that the gait is “faster”.
(b)    Dr Bodel, orthopaedic surgeon qualified by the applicant: On 25 November 2022, Dr Bodel records that the applicant has a “very stiff-legged gait pattern on the right-hand side” noting that he hardly bends his right knee. On 22 February 2023, Dr Bodel records that the applicant has a “pronounced right-sided limp” and he uses the crutch on the right-hand side.
(c)    Dr Lieu, treating orthopaedic surgeon: On 19 February 2024, Dr Lieu records that the applicant “walks with an antalgic gait pattern”.
Dr Bodel records that the “back pain is a consequential condition because of the still pronounced limp on the right-hand side associated with the fracture”. Dr Bodel finds there is a causal nexus between the back symptoms and the applicant’s limp and accepted right knee injury. There is no other evidence which explains the cause of the applicant’s antalgic gait or limp or whether it relates to the applicant’s back symptoms, except for Dr Machart. For the reasons discussed below, I prefer the evidence of Dr Bodel.
As the respondent submits, there appears to be some confusion about the date that the tension band wire was surgically removed. In this regard, the applicant states it was removed on 19 June 2022 but the medical evidence suggests that it occurred on or around 19 January 2022. There is no operation report available in the evidence to confirm the date of that surgery; however, it is clear that that the procedure took place on or about 19 January 2022. That the applicant records an incorrect date of the surgery or there is some confusion as to the date of this procedure is relevant but not determinative of the issues in dispute.
I accept that there appears to be some confusion about the date of the removal of the tension band wire. I also accept that it appears that there is a period of around 12 months between the removal of the tension band wire (on or about 19 January 2022) and the report of symptoms in the lumbar spine and further medical investigation on 20 February 2023. However, this must be considered in the context of all of the available evidence and the applicant’s case. The applicant does not state that his symptoms in his back commenced immediately on removal of the tension band wire. Rather, he states that the lower back pain “came on gradually after the removal of the tension ban wire”. This is consistent with the evidence of Dr Bodel in his supplementary report, the complaint of symptoms in the back to Dr Islam in February 2023 and Dr Lieu in February 2024. As the applicant submits, it is not uncommon that conditions of a gradual process do not appear immediately or become symptomatic for some time.
The first complaint of back pain following the subject incident was on 2 November 2021, and the subsequent entry is in February 2023. As the respondent submits, the clinical notes of 2 November 2021 do not disclose how or where the back pain comes from. Indeed, the evidence suggests that the reference to back pain on 2 November 2021 was not significant and certainly did not warrant further investigation or treatment. There is no reference to the applicant’s back symptoms or treatment or investigation until 20 February 2023, despite the applicant attending on Dr Islam on approximately 12 occasions between 2 November 2021 and 20 February 2023. I do not consider that this single clinical entry on 2 November 2021 is fatal to the applicant’s case or suggestive of the fact that the applicant has not suffered a consequential condition of a gradual process.
In the time before and following the removal of the tension band wire, the applicant was undergoing regular physiotherapy for his right knee which he states never fully settled. This is consistent with the applicant’s evidence and the histories recorded by Dr Bodel, Dr Machart and Dr Lieu. The evidence from his physiotherapist is that he continued to experience pain in his knee and had an antalgic gait, while he increased his weight bearing tolerance and mobility in the right knee. This evidence is confirmed by Dr Bodel in his supplementary report and Dr Lieu.
Dr Bodel, in his supplementary report, finds that the applicant suffered a consequential condition in his lumbar spine. Dr Bodel has regard to Dr Islam’s clinical notes of
2 November 2021, but states the back pain is a consequential condition because of the “still pronounced limp on the right-hand side associated with the [patella] fracture”. He explains why his opinion changes from his original report, where he said that there was no complaint of back pain and separately no consequential condition.
Contrary to the respondent’s submissions, Dr Bodel explains the reason for his changed opinion on the basis that the applicant’s wife “misunderstood the question that was asked of her about other matters that have occurred since the fall”. I am satisfied that this is a reasonable explanation. Consistent with the proceedings in the Commission, it appears that due to the applicant’s language skills, his wife has acted as a translator to assist the applicant to communicate. It is reasonable that due to the language barrier that the complaint of back pain was not reported. I am fortified in this view for the following reasons.
Firstly, Dr Bodel in his original report records a history of a “very stiff-legged gait patten on the right right-hand side” which is consistent with his supplementary report which records a history of a “pronounced right-sided limp”. Secondly, there is a consistent record of an antalgic gait in the physiotherapy records from 15 September 2021 to 10 February 2022. Thirdly, the applicant’s treating general practitioner Dr Islam records on 20 February 2023 that the applicant has back symptoms and refers him for a CT scan of his lumbar spine. Fourthly, the applicant’s treating surgeon Dr Lieu records that on 19 February 2024 that he is developing secondary back pain. While Dr Fox, the applicant’s treating orthopaedic surgeon, and Mr Law, the treating physiotherapist, do not record complaint of the lumbar spine their focus has been on the recovery of the right knee. I accept that the opinions and evidence of the treating practitioners in respect of back symptoms and gait pattern are relatively briefly expressed, which is consistent with the circumstances in which they were prepared, but together they provide important links in the chain of causation.
Further, Dr Bodel records in his supplementary report that the applicant refers to the pain in his “hips” and pointed to his buttocks but explains that this was “referred pain from the back”. The evidence indicates that the applicant has had ongoing complaint of pain in his hips, and this was recorded as early as 19 October 2021 by Dr Fox. On investigation, there was no pathology found in the hips. I have not based my findings on this but, it would appear possible that a reference to hip pain may also have been a reference to lumbar back pain.

While Dr Bodel does not appear to have a history of the applicant’s back pain in 2016, it appears that he had access to Dr Islam’s clinical notes. Dr Bodel refers to the “local doctor’s continuation notes” in his original report and specifically refers to the clinical entry on 2 November 2021 in his supplementary report. I am satisfied that, notwithstanding the absence of a written record that Dr Bodel took a history of the 2016 back pain, that his opinion was provided in a fair climate.[9] In any event, the 2016 X-ray report does not record any compression fracture, degenerative spondylosis or facet joint osteoarthritis. There is also no further evidence that the applicant had any ongoing complaints, symptoms or treatment for the back until after the subject incident which is suggestive of the fact that any symptoms resolved or were non longer significant. Indeed, Dr Machart, who records a written history of the 2016 back pain, does not suggest that the current back pain is a related to the 2016 symptoms.
[9] Paric v John Hollan (Constructions) Pty Ltd [1985] HCA 58 (Paric).
I prefer Dr Bodel’s opinion in his secondary report over that of Dr Machart. While Dr Machart takes a history of the subject incident, I am not satisfied that it has been prepared in a fair climate.[10] Firstly, his opinion appears to be founded on an assumption that the use of crutches caused strain in the lumbar spine. That is not the applicant’s case. The applicant asserts that due to an altered gait (or limp) he developed symptoms in his lumbar spine. Secondly, on this background, Dr Machart does not record a history of an altered gait as set out in the physiotherapy notes or explain how this may or may not have impacted the applicant’s symptoms in his lumbar spine. Dr Machart merely refers to a “hypothetical altered gait” which he states is not supported by the evidence before proceeding to state that the use of crutches does not cause strain on the lumbar spine. In these circumstances, Dr Machart does not adequately explain why he concludes there is no evidence of a consequential condition in the lumbar spine. This undermines the strength of Dr Machart’s opinion on injury and causation.
[10] Paric.
The applicant’s case is that his condition in his lumber spine was a condition of a gradual onset. As discussed above, it is not uncommon for consequential conditions to become apparent sometime after the (in this case accepted) workplace injury from which it results. It is also not uncommon for conditions of a gradual onset to progressively appear from asymptomatic to symptomatic.
Having regard to all of the evidence, I am satisfied on the balance of probabilities that the evidence demonstrates a material contribution from the accepted right knee injury to the symptomology in the lumbar spine. The evidence supports the conclusion that there is an unbroken causal connection between the applicant’s symptoms in his lumbar spine and the accepted right knee injury. In this regard, I accept the evidence demonstrates that the applicant had an altered gait due to his right knee injury, which was present while the applicant was increasing his weight bearing tolerance on his right knee and mobility without crutches. I also accept that the evidence demonstrates that the altered gait was present immediately prior and during complaint of back symptoms. I further accept that it is the altered gait that has caused symptoms in the applicant’s lumbar spine. The presence of these symptoms and the medical explanation that this was a result of the altered gait and right knee injury, as set out in Dr Bodel’s supplementary report which I accept, is sufficient to establish a finding of a consequential condition in respect of the lumbar spine.[11]
[11] Kumar; Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3; Trustee of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWCCPD 23.

SUMMARY

I am satisfied, on the balance of probabilities, that the applicant has discharged the onus of proof that he sustained a consequential condition to his lumbar spine as a result of the accepted right knee injury.[12]
[12] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).
It follows that the matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment, pursuant to s 321 of the 1998 Act, as a result of injury on 28 August 2021.
Accordingly, the above orders are made.

[2024] NSWPIC 346

28 June 2024