Aquilina v Transport for NSW
[2021] NSWPIC 7
•5 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aquilina v Transport for NSW [2021] NSWPIC 7 |
| APPLICANT: | David Aquilina |
| RESPONDENT: | Tansport for NSW |
| MEMBER: | Michael Perry |
| DATE OF DECISION: | 5 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- claim under Workers Compensation Act 1987 for lump sum compensation; liability accepted for left ankle injury on 16 August 2017; applicant alleged left ankle injury resulted development of altered gait and developing consequential conditions in low back and left knee; Held- applicant has sustained consequential conditions in his low back and left knee as a result of left ankle injury; lump sum claim remitted to President for referral to Medical Assessor. |
| DETERMINATIONS MADE: | 1. Amend the application to resolve a dispute to change the name of the respondent wherever it appears to “Transport for NSW”. 2. Pursuant to Rule 15.7 of the Workers Compensation Rules 2011, the applicant discontinues that part of the Application to Resolve a Dispute relating to his claim that the injury he sustained on 16 August 2017 resulted in a consequential right hip condition. 3. Dispense with the need to file notice of discontinuance with respect to 1 above. 4. The applicant has leave to file or lodge a report of Dr John Negrine dated 1 June 2020. 5. A finding that as a consequence and result of the injury to the applicants left foot and ankle on 16 August 2017, the applicant suffers a low back condition. 6. A finding that as a consequence and result of the injury to the applicant's left foot and ankle on 16 August 2017, the applicant suffers a left knee condition. 7. The matter is remitted to the President for referral to Medical Assessor for assessment of the degree of whole person impairment with respect to injury to and/or consequential condition involving the applicant’s: (a) left lower extremity (left ankle/foot and left knee), and (b) lumbar Spine. 8. The date of injury for the purposes of the referral at par 7 above is 16 August 2017. 9. The following documents are to be admitted by consent and referred to the Medical Assessor: (a) The Application to Resolve a Dispute and attached documents. (b) The reply and attached documents. (c) The Application to Receive Late Documents by the applicant dated 9 February 2021. (d) The Application to Receive Late Documents by the respondent dated 15 February 21. 10. Liberty to apply if either party wishes to be heard about the amendment to the name of the respondent to in par 1 and/or the terms of the referral to the Medical Assessor in par 7 above. |
STATEMENT OF REASONS
BACKGROUND
On 16 August 2017, David Aquilina (the applicant) sustained injury to his left foot and ankle (the ankle injury) in the course of his employment as an electrician with Transport for NSW (the respondent). The respondent has accepted liability to pay compensation to the applicant under the Workers Compensation Act1987 (the 1987 act) with respect to the ankle injury.
The applicant has claimed lump sum compensation reflecting 17% whole person impairment (WPI) of his left lower extremity and lumbar spine. He alleges he developed an altered gait as a result of the ankle injury, and as a consequence, he now suffers a left knee condition and low back condition. Accordingly, he seeks a determination that the matter be remitted to the President for referral to an Assessor to assess the applicant’s WPI.
ISSUES FOR DETERMINATION
Both the applicant and respondent have used the terms “injury” and “condition” interchangeably with reference to the applicants left knee and low back. Neither party asserted there was an injury within the meaning of the 1987 Act to those body parts.
The parties agree the only issue remaining in dispute is whether the applicant has suffered or sustained a consequential condition to his left knee and low back as a result of the ankle injury.
Matters previously notified as disputed
The applicant previously claimed a lump sum for a right hip condition sustained as a consequence of the ankle injury. This was also disputed by the respondent. However counsel for the applicant discontinued that aspect of his claim.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation and arbitration on 19 February 2021. Mr L Morgan of counsel, instructed by Ms B El Masri, solicitor, appeared for the applicant who also attended. Mr J Gaitanis of counsel, instructed by Mr N O’Connor, solicitor appeared for the respondent.
I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I have used my best attempts to bring them to a settlement. I am satisfied they have had sufficient opportunity to explore settlement and are unable to reach an agreed resolution.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account (number references in the documents refer to page numbers unless otherwise noted):
(a) Application to Resolve a Dispute and attached documents (ARD).
(b) Reply and attached documents.
(c) Applicant’s Application to Admit Late Documents (ALD).
(d) Respondent’s Application to Admit Late Documents (RLD).
Applicant’s Statement 25 November 2020
The applicant, now aged 61 years, commenced working with the respondent or its previous emanations on 12 September 2005. He performed electrical and maintenance work at the Mortdale Maintenance Centre. On 16 August 2017, he was attempting to step up onto a train when his left foot gave way. He slipped down one step causing him to twist his left foot and ankle. He worked light duties until about 28 November 2017 when his treating orthopaedic surgeon, Dr John Negrine, performed an arthroscopy on his left ankle (the first surgery). This only provided minor relief. He performed light duties between 18 December 2017 and 30 April 2019. However, the pain and symptoms about his left ankle persisted.
Dr Negrine then performed another arthroscopy on 1 May 2019 (the second surgery). The applicant stated this was “ineffective in relieving my symptoms”. He then consulted a pain specialist Dr James Yu.
The applicant resumed full time light duties in September 2019 at the respondent’s Clyde office. He experienced “great difficulty” with these duties as he was required to walk about 15 minutes from the train station to his workplace. He could not tolerate that and ceased working again. He has remained unfit for work since. Since the ankle injury he has also noticed symptoms in his low back and left knee. Prior to the ankle injury, he used to enjoy riding motorbikes, gardening and going for long walks. He no longer does these activities:
“as a result of … persistent pain in my left leg … and low back … since the injury, I am continuously limping … this puts added strain on my low back … have continuous pain in the left foot, ankle … low back … prolonged standing or walking makes the pain worse … cannot run or jump or walk on uneven ground … at times I have pain in … left knee which is aggravated whenever I attempt to kneel, squat or climb … pain … low back is aggravated whenever I attempt to sit down … (for) long periods … or bend …” (ARD 2).
Dr Medhat Magar GP; clinical records as at 13 February 2020 and report 24 February 2020
Dr Magar’s clinical notes show the applicant consulted him soon after the ankle injury and was complaining of significant left foot pain from the calcaenum to the posterior talocalcaneal joint (ARD 105). Dr Magar continued to review the applicant until the first surgery. The applicant continued to see Dr Magar after the first surgery and complained of ongoing problems in his left ankle and foot. On 18 October 2018, he complained of “slow improvement – Lt foot giving way at times …” (ARD 101). On 15 January 2019, Dr Magar noted the applicant was “concerned about start of discomfort Lt knee + possibility of strating [sic – I will read that as ‘starting’] back pain because of … uneven gait” (ARD 101).
On 10 May 2019, soon after the second arthroscopic procedure by Dr Negrine, Dr Magar saw the applicant and noted he was to have a pain management review and that his medications included daily Endone. When Dr Magar reviewed the applicant on 5 July 2019, he noted “features of inflammatory pain” about the left ankle which was swollen “though a lot less than previously” (ARD 99).
On 19 July 2019, Dr Magar noted the applicant had fallen
“twice in the last two weeks – Lt ankle sudden pain that caused imbalance – causing the fall … still not able to participate in his usual hobbies + sitting at home most of the time … can weight bear and walk on the ball of the feet and heels (albeit with some discomfort) … burning pain reduced in intensity and frequency – continues with light touch exercises” (ARD 99).
On 20 September 2019, Dr Magar noted that the applicant was “concerned about having to cross the tracks to reach Mortdale Station … + … concerned about the distance from Clyde Station to his work area … about exacerbating the condition of … ankle” (ARD 98).
On 14 November 2019, Dr Magar noted that the applicant was “stable”, but that he was “trying multiple manoeuvres/measures to control Lt foot pain on and off Rt lower back/hip area discomfort because ? protecting the Lt foot …” (ARD 97).
Dr Magar’s 24 February 2020 report comprises brief responses to questions from the applicant’s solicitor. Relevantly, in answer to a question as to whether the applicant had “suffered any consequential conditions due to overuse?”, Dr Magar wrote “In my opinion, although I am not a rehabilitation/orthopaedic specialist, David would have suffered an acute exacerbation of an overuse injury” (ARD 38).
Dr Jeff Kuan, radiologist, report 20 March 2020
Dr Kuan undertook a CT of the applicant’s lumbar spine. There is no information provided by him beside the form heading “clinical history” However, his “findings” include “mild spondylitic changes from L2-3 to L5-S1 … mild facet joint arthropathy …” (ARD 83).
Dr John Negrine, orthopaedic surgeon (adult foot and ankle surgery)
Dr Negrine’s main report, on 1 June 2020, is addressed to the applicant’s solicitors. He set out the history of the ankle injury and noted that, “on examination … David walked without a limp and he had very little swelling …” It is not totally clear as to when Dr Negrine is referring to, but it is likely he is referring to the first time he examined the applicant on 4 September 2017 (ARD 135). Although, while this is the only time Dr Negrine has noted the applicant walk without a limp, he did not then, between September 2017 and early 2020, make a note observing a limp.
In his 1 June 2020 report, Dr Negrine noted that an MRI of the applicant’s left ankle taken on 22 August 2017 showed a chronic osteochondral lesion of the applicant’s mid medial talar dome with cyst formation and surrounding bone marrow oedema. Dr Negrine believed “this was an acute on chronic situation … osteochondral lesion … had been there for many years but … aggravated by … getting up into the train on 16/8/2017 …” Dr Negrine arranged for the applicant to have his left foot put into a CAM boot for a month “but that did not resolve his symptoms and he underwent an ankle arthroscopy on 28/11/2017”.
Dr Negrine noted that after the first surgery the applicant was unable to return to his pre-injury duties. When he reviewed the applicant on 16 May 2018, an MRI scan “showed some cartilage fill with mild bone marrow oedema”. He then placed the applicant on Amitriptyline “as he was getting an element of nerve pain … was doing office duties”. He then reviewed the applicant on 4 July and 10 October 2018 when he noted the applicant had returned to work but was excluded from climbing into trains and work on train tracks. But when he reviewed the applicant on 16 January 2019, he noted:
“unfortunately his pain recurred … not only in the ankle but also in the knee … unable to return to work on pre-injury duties … had pain even when standing in one position such as when fishing … given the size of the lesion and the chronicity of symptoms I felt … another procedure may help him … suggested a repeat arthroscopy … on 1/5/2019 … at surgery the lesion had not healed … ongoing scarring and necrotic bone … post operative period … suffered an enormous amount of pain … day and night … placed non weight-bearing for two weeks and then in a walking boot”.
Dr Negrine reviewed the applicant again on 12 June and 7 August 2019 at which stage he still had pain and Dr Negrine prescribed Celebrex for the applicant. The two met again on 4 September 2019 when Dr Negrine noted “he was struggling with Amitriptyline … undergoing physiotherapy”. Dr Negrine reviewed the applicant again on 15 October 2019 at which stage there was ongoing pain. The doctor ordered an MRI scan and reviewed the applicant on 28 October 2019. The MRI scan “showed good fill of the … lesion with no significant bone marrow oedema. David however was not coping with office duties due to having to travel to Clyde … suggested at that stage review by a pain specialist, James Yu”. He reviewed the applicant again on 29 January 2020 at which stage the “pain was occurring day and night …for uncertain reasons not been reviewed …by Dr James Yu, I understand … insurance ….had not approved this referral … inexplicably … has not had approval from the insurance company to see James Yu”. Dr Negrine stated to Dr Magar “I felt at the time … prognosis regarding returning to pre-injury duties jumping in and out of trains and walking on railway tracks was guarded and I still feel this”.
Dr James Yu, consulting anaesthetist and interventional pain specialist, report 15 July 2020
Dr Yu’s above report is addressed to the respondent. He notes that he had then recently reviewed the applicant and following that assessment, believed it would be appropriate for the applicant to undergo two left lumbar sympathetic nerve blocks for:
“his persistent left ankle and foot neuropathic pain associated with sympathetic nerve dysfunction … undergone a couple of left ankle arthroscopic surgeries … however … continues to suffer … chronic left ankle and foot neuropathic pain … with sympathetic nerve dysfunction … left ankle & foot was slightly swollen, pale and warm to touch … associated with hyperalgesia and allodynia consistent with sympathetic nerve dysfunction …”
Dr James Bodel, orthopaedic surgeon, reports 16 June and 18 November 2020 and 8 February 2021
Dr Bodel recorded the applicant’s “current complaints” including continuing pain in the left foot and ankle and intermittent left knee pain aggravated by attempting to kneel, squat or climb, and right sided lower back pain.
Dr Bodel examined the applicant’s spine noting tenderness on palpation at the lumbosacral junction right side and guarding in that area. He also noted the applicant complaining of increasing back ache upon reaching forward in flexion with his hands to his knees, and on extension. He also noted a reduced range of lateral bending to the left. He examined the applicant’s left knee noting painful retro patellar crepitus in that knee and pain on restricted left knee extension, although range of knee movement is intact. He found no ligamentous laxity in either of the applicant’s knees.
Dr Bodel also observed wasting of 1.2 cm in the left calf. In answer to the form question to record the history he obtained from the applicant, Dr Bodel wrote “Injury to his left foot … on 16 August 2017 … also suffered an injury to his lower back, right hip and left knee as a consequence of the frank injury to the left foot”. Then, under the heading “Your Diagnosis”, Dr Bodel diagnosed a lateral ligament tear and injury to the talar dome of the left ankle “caused by the fall … also injured his lower part of the back and his left knee …” (ARD 29-30). He then wrote that “the injuries to the right hip and left knee are consequential injuries as a result of the injury to the left ankle … he in fact injured the left knee in the fall and also has developed back pain because of the persisting limp …”.
The final question put to Dr Bodel invited him to add “any other matter you consider relevant”. He responded this way “…this gentleman is quite severely incapacitated … his clinical complaints are quite genuine”.
Dr Bodel prepared a supplementary report of 8 February 2021. He firstly clarified “that his injury at work was the primary injury to the … left foot and ankle … of 16 August 2017. All other areas of injury, including the left knee … are consequential injuries as is the discomfort in the back”. Dr Bodel then reasoned that the consequential injuries had come about:
“by way of persisting limp following the extensive injury to the … left foot and ankle and the protracted painful outcome following treatment because of aggravation, acceleration, exacerbation and deterioration to a disease process in the left knee being retro patellar articular cartilage damage … and musculo-ligamentous injury and possible aggravation of degenerative disc disease in the lumbosacral spine caused by these activities … ongoing areas of injury in … knee and lumbar spine … are consequential injuries for that reason …”
Associate Professor Michael Shatwell (Dr Shatwell), reports 6 October 2020 and 12 February 2021
Dr Shatwell assessed the applicant at the request of the respondent on 25 September 2020. He took a history of the left ankle injury. He also noted the applicant stated he injured his left knee by banging it just below the kneecap on the ladder when he was climbing into the cab, and had pain just below the kneecap following the ankle injury which was more severe one or two months following. Dr Shatwell also noted the applicant stated “he experienced back pain within a few months of the accident … localised … to the right side of the back in the region of the sacroiliac joint … was told … the pain … was due to his favouring his left ankle and his altered gait.” Dr Shatwell recorded that the applicant experienced pain in his left knee rated at around 5 out of 10 and pain in his back rated around 6 to 7 out of 10. Dr Shatwell noted the applicant saying he was unable to walk more than 200 to 300 metres, that he helped with light household duties but was unable to drive for prolonged periods and his walking ability was quite limited. He also recorded that the applicant “found shopping is now a chore, he wears a CAM boot when he goes out, but is still limited to short trips for social and shopping activities”.
On examination, Dr Shatwell noted that the applicant “walked with a limp and had difficulties standing on his left leg … unable to walk on his tip toe or on his heels … normal leg alignment …”. He also noted the applicant’s lumbar spinal movements were restricted with forward flexion to mid shin level and lateral flexion was to knee level on both sides, with extension being limited to a few degrees only.
Dr Shatwell found no wasting of the lower limbs. He also noted both knees flexed to 130̊ without crepitus, with no wasting of the lower limbs to suggest any injury to the knees. He accepted the applicant sustained the left ankle injury. He also noted that while the applicant stated he bumped the front of his knee during the ankle injury, “there was no bruise or laceration … did not bring the knee to the attention of his medical attendants following the injury … do not consider there was a significant injury to the knee”. He also opined the applicant did not injure his lumbar spine at the time of the left ankle injury, and he “developed pain some months later and was told that this was due to his altered gait”.
In answer to a question from the respondent’s solicitors about whether employment was a substantial contributing factor and the main contributing factor to “the body parts diagnosed above”, Dr Shatwell wrote that:
“… injury to the knee would have settled within …. a few days or weeks … complaints of pain in the lumbar region are not related to the altered gait … activities have been reduced by the injury … not likely he would have over stressed the lumbar spine with his reduced activities … idea that altered gait due to an injury to a limb causes spinal problems is not tenable … is a large amount of literature that negates this proposition. The spine is actually protected from injury by reduced activity … no evidence that a left ankle injury would cause back or knee problems due to altered gait … highly unlikely was mobile enough to develop degenerative change in … left knee or … lumbar spine due to altered gait…”
Dr Shatwell also opined that the applicant “examined with illness behaviour which is a normal finding in patients on compensation”.
Dr Shatwell was asked to prepare a supplementary report and was provided with Dr Bodel’s reports for that purpose. Dr Shatwell adhered to his earlier opinion, noting that he examined the applicant’s knee and did not consider there was any asymmetry in movement, stability or any evidence on measuring his lower limbs to show the applicant was sparing the left lower limb because of the ankle injury.
Dr Shatwell noted Dr Bodel’s opinion regarding consequential injury to the applicant’s back and left knee due to the altered gait and adhered to his earlier opinion, stating “there was no persisting or permanent injury to the left knee … not likely … any consequential injury to the lower limb as the girths of the muscles in the upper and lower segments are symmetrical as measured”. Dr Shatwell also opined that:
“the reduced activity caused by the left ankle injury would actually lead to less walking and less degenerative changes … states he cannot walk between his workplace and the train station because of pain in his ankle … not now walking a great deal … not possible that his altered gait would give rise to any degenerative change in the left knee or lumbar spine … equal muscle bulk in the legs in the thigh and calf regions … suggests … not favouring either leg and that any limp he has is not affecting the muscle bulk in the limbs … if this is the case his limp would not be sufficient to change the mechanics of his lumbar spine or left knee…”
Dr Shatwell stated that consequential injuries causally linked by way of persisting limping would be based on a continuing high level of activity which is not the case with Mr Aquilina.
Dr Shatwell finds it more likely that the back pain is “coincidental due to degenerative change in a 61 year old who has spent most of his life working as an electrical fitter … limping for short distances could not conceivably cause any consequential mechanical injuries”.
Oral evidence
There was no application for any oral evidence including by way of any cross examination.
Submissions
The submissions by both parties have been recorded and I have considered all of them. It is unnecessary to here trace through all such submissions. They may be conveniently summarised as follows.
Submissions for the Applicant
The clinical notes of Dr Magar should be considered both in terms of the development of the applicant’s left ankle injury and also the problems he had with that injury, including multiple surgeries and altered gait. The resulting injuries or conditions to or with the applicant’s low back and left knee was recorded by Dr Magar on at least two occasions.
The various reports of Dr John Negrine should be considered both in terms of the development of the left ankle injury and the consequential problems. For example, his report of 17 October 2017 (ARD 81) noted the applicant was suffering significant symptoms in the context of having his foot in a boot for at least a month. Dr Negrine’s impression was that the applicant’s condition was becoming complicated, so that he would likely need surgery. Dr Negrine also noted marked wasting in the applicant’s left calf on examination on 12 June 2019. He then noted the applicant was able to walk without a splint and without his boot, but still continued to use the boot in the morning for about two hours until the ankle warmed up.
Mr Morgan proceeded to summarise Dr Negrine’s reports, noting how the applicant continued to complain of pain in his ankle, and was not coping with such pain.
Mr Morgan also identified those aspects of the applicant’s statement, particularly at pars 8-14 and 15 & 17. These have been summarised above.
Dr Bodel had the benefit of the notes of Dr Magar and the reports of Dr Negrine. In Dr Bodel’s first report, where he refers to the applicant injuring his left knee on 16 August 2017, he meant to refer to the left ankle.
The clinical notes of Dr Magar provide contemporaneous evidence of the altered gait the applicant complained of and consequential conditions involving the applicant’s low back and left knee Dr Bodel finds.
The evidence of Dr Shatwell should not be accepted. Dr Bodel’s evidence should be preferred. Dr Shatwell “dismisses out of hand” the applicant’s case that there was a consequential injury or condition. There are no, or no adequate, reasons given. There is also a failure by Dr Shatwell to take into account that the applicant was wearing a CAM boot and was on crutches for significant periods, and that he underwent two surgeries.
Dr Shatwell’s premise for his opinion is the “idea that altered gait due to injury to a limb causes spinal problems is not tenable … literature … negates this … spine is actually protected … by reduced activity”. Dr Shatwell did not provide any such literature and so this opinion must be fragile. In response to Dr Bodel’s opinion that the left knee and lumbar spines were consequential to the initial left ankle injury, Dr Shatwell stated there was no evidence that a “left ankle injury would cause back or knee problems due to altered gait … reduced activity actually protects the spine and lower limbs from injury”. This fails to take into account the contemporaneous evidence from Dr Magar. It also does not take into account the wasting found by Dr Bodel.
Submissions for the Respondent
Between about August 2017 and 2018, the only complaints made by the applicant were in relation to his left ankle – there were no complaints in relation to other parts of his body.
The report of Dr Kuan of 20 March 2020 shows only minor spondylitic changes. No protrusions of any nature are reported as appearing on the images. Also, there is “no radiology relating to the left knee or right hip”.
The Commission needs to be satisfied that the applicant has sustained a consequential condition in relation to his left knee and his low back. The applicant’s evidence as to him “continuously limping … this puts added strain on my low back and my right hip” should not be accepted. He failed to refer to any activities he is doing that could give such comment any meaning or viability. The evidence is not complete, and there is not enough evidence, for the Commission to be actually persuaded of the existence of the facts necessary for his case to succeed. The opinion and reasons given by Dr Shatwell is more persuasive than the applicant’s medical evidence (see summary of Dr Shatwell’s evidence pars 29-37 above).
Those histories, relied upon by the applicant, taken by Dr Magar, that appear to show the applicant giving a history of “uneven gait” and “multiple manoeuvres to control left foot pain on and off” – said to result in the lower back and/or left knee symptoms – should be treated with caution given that line of authority to the effect that treating doctors often make mistakes with recording of such matter.
In effect, the applicant’s evidence as to him walking with an altered or uneven gait, and having left knee and low back problems in that context, should not be accepted. Further, the applicant’s evidence lacks credit.
The Commission needs to find, and the applicant has not proved, what it is that has caused the alleged overuse. The applicant “can’t just cherry pick” selected notes from Dr Magar. There needs to be an explanation by the applicant for how any alleged consequential condition came about.
Dr Negrine says there was no limping in his report of 4 September 2017. Otherwise, there is no reference to limping by Dr Negrine.
FINDINGS AND REASONS
To the extent that the respondent has submitted that the applicant is not a witness of truth, or his evidence should not be accepted for whatever reason, I reject such submission. While there has been complicated sequalae of the ankle injury, there is little if any evidence to show that he is not doing his best to tell the truth. It is not even clear that the submission for the respondent was made, at least necessarily, on the basis that the applicant is deliberately tailoring his evidence to suit his case. The submission rather seems to have been made on the basis that the applicant’s evidence simply should not be accepted and is incorrect for the reasons provided by Dr Shatwell. It is not clear that Dr Shatwell is opining that the applicant is not doing his best to tell the truth. I do not think it likely he is saying that. He does accept the applicant has low back pain, but says such symptoms came on coincidentally due to degenerative change in a 61 year old man who had spent most of his life working as an electrical fitter. While he did refer to the left ankle injury as “minor”, he did accept that injury as work-related and allowed for a 20% lower extremity impairment (translating into an 8% WPI).
Dr Shatwell did state that the applicant “examined with illness behaviour”, but then went on to immediately add “which is a normal finding in patients on compensation”. It’s not totally clear what this means either. But doing the best I can, I infer it means the applicant was behaving, during Dr Shatwell’s examination, in a way that promoted his “illness” as best as possible – and that this is what “patients on compensation” usually do. However, because of the lack of clarity and particularisation of this comment, and the absence of any underlying reasoning – so that it was a bald conclusion put without any basis – I do not accept such comment, at least to the extent that it can be translated into the inference I have referred to. Even if one is to go back through that part of Dr Shatwell’s report dealing with the examination, it is difficult, at least, to see where he has referred to any inconsistencies in the way the applicant “examined”. It is clear enough that Dr Shatwell was not able to find any significant clinical abnormalities in the applicant’s left knee, and “there was hyperreaction to palpation and movement of the ankle”. But there is still insufficient reasoning exposed in this respect for me to be persuaded that the applicant was trying to exaggerate his symptoms because he was “on compensation”.
I believe the applicant was not trying to exaggerate his symptoms. The evidence overall actually persuades me that he is a witness of truth and good credit. He has a very good work history, including for a period of nearly 12 years with the respondent leading up to the ankle injury. He has been assessed extensively by Dr Negrine between early September 2017 and 2020. Dr Negrine referred to him in November 2017 as seeming to be “a genuine fellow” (ARD 79). In the various reports Dr Negrine has thereafter produced, there is nothing to suggest he changed his mind about that impression. In his 29 January 2020 report (ARD 71), he noted it was inexplicable that the respondent had not given approval for the applicant to see Dr Yu. There are no other features of the evidence or the applicant’s history to suggest that the applicant’s evidence and credibility should be called into question.
Dr Shatwell also stated in his first report that the most significant factor preventing the applicant returning to work is the “compensation system where he is obliged to have disability due to the injury to justify unemployment benefits”. While this comment is not totally clear as to its meaning, and is not in the context of the issue in dispute here, rather going to capacity to work, it is again a comment that may suggest the applicant is either exaggerating his disability or perpetuating it for collateral purposes. If Dr Shatwell is saying that, I do not accept his opinion. It appears this is a fixed or general type of view about the “compensation system” which obliges injured workers “to have disability” to justify monetary benefits. So, the doctor has not, at least adequately, reasoned why the applicant, as an individual, with individual injury circumstances, falls within that general view.
Dr Negrine had referred the applicant to Dr Yu “because of ongoing pain in the ankle which was occurring day and night”. Dr Negrine then noted on examination that the applicant’s “ankle actually looks rather good … very little swelling … good range of motion … has however pain and describes a sensation of the ankle being very uncomfortable with any form of pressure”. I think it likely that Dr Negrine does so accept the applicant as genuine even though he was unable to identify an obvious major abnormality on clinical examination.
Dr Bodel also stated “this gentleman is quite severely incapacitated by his injury and his clinical complaints are quite genuine”. Dr Yu’s report also shows, at least inferentially, support for the applicant’s complaints of pain – at least to the extent that he does not in any way dismiss them. To the contrary, he thought it was appropriate for the applicant to undergo two left lumbar sympathetic nerve blocks. I appreciate this was in the context of wishing to treat what Dr Yu described as the “chronic left ankle and foot neuropathic pain”, rather than the low back and or left knee conditions. However, this evidence is still relevant to the assessment of the applicant’s credit. Dr Yu observed the applicant as exhibiting a “slightly swollen, pale and warm to touch” left ankle and foot. Dr Yu thought this was associated with hyperalgesia and allodynia, consistent with sympathetic nerve dysfunction.
Although I take all other evidence, and the submissions for the respondent, into account, I believe the submission for the respondent (that the applicant’s evidence should not be accepted) should be rejected, and I do so.
I also reject the submission for the respondent that the contemporaneous notes of Dr Magar, particularly those relevant to the issue in dispute, should be treated with caution and not accepted, on the basis of authority that treating doctors often make mistakes with recording such matters. I will take this as a reference to the principles set out in Gulic v O’Neill [2011] NSWCA 361 (Gulic). It is necessary to exercise a degree of caution in relation to placing reliance upon histories taken by medical practitioners. Nevertheless, in all the circumstances here, the relevant notes appear to be correct and are reasonably consistent with other evidence; and also there are little, if any, features of the evidence that these notes are inconsistent with. For example, Dr Magar’s note on 15 January 2019 about the applicant being concerned about the start of discomfort in the left knee and possible back pain because of uneven gait is reasonably consistent with Dr Negrine’s note on 16 January 2019. At that stage Dr Negrine noted the applicant complaining of recurrence of pain not only in the ankle but also the knee. While Dr Negrine does not note which knee, there is no reference anywhere else in the evidence to the right knee being affected. Overall, the context of this comment about “the knee” allows for a likely inference that Dr Negrine was referring to the applicants left knee; e.g. “not only in the ankle but also in the knee”. I find, after considering this evidence (the notes of Drs Magar and Negrine on 15 and 16 January 2019), in conjunction with the whole of the evidence otherwise, it is likely that the applicant does suffer a consequential condition of his left knee because of his adoption of an altered gait as a result of the left ankle injury. I think this is the likely finding after taking into account the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSW LR 452; 10 NSWCCR 796 (Kooragang).
I acknowledge that Dr Negrine does not refer to the applicant complaining of back pain on 16 January 2019. But I still believe that the note of Dr Magar on 15 January 2019 to the effect that the applicant was starting to notice possible back, as well as left knee, pain because of uneven gait is a reliable and acceptable entry. There could be various reasons why it was not recorded the following day by Dr Negrine, e.g. there were some infelicity of communication between doctor and patient on that day. Even if the explanation is that it may not have been said by the applicant to the doctor, this does not of course mean the applicant did not begin to suffer from a low back condition subsequent to the left ankle injury was a result of the altered gait. The evidence overall needs to be considered. While the applicant's statement does not provide detail as to precisely when he noticed left knee and low back symptoms, he has stated that as a result of the persistent pain in his left leg, he has been continuously limping. I accept his evidence in this and all other respects.
I similarly accept the reliability of the note by Dr Magar on 19 July 2019 that the applicant had fallen twice in the previous two weeks because of left ankle pain that caused imbalance. This is consistent with what Dr Negrine recorded the applicant saying on 3 July 2019. That doctor recorded “somewhat worryingly he tells me he has fallen over twice” (ARD 120). While this does not refer to any left knee or low back conditions, it is but one example in the evidence that illustrates the significant difficulties the applicant did have with his left ankle, including his ability to balance himself properly. This is relevant to analysing and a factor pointing towards it being likely that the left ankle injury resulted, because of an altered gait, in a left knee and low back condition.
The same applies to Dr Magar’s note of 14 November 2019, regarding the applicant trying multiple manoeuvres measures to control his left foot pain and him noticing “on and off… lower back… discomfort because? protecting the… foot”. While there is a query built into Dr Magar’s note, I find, after considering this piece of evidence, in conjunction with the whole of the evidence otherwise, that it is likely that the applicant has suffered a consequential condition of his low back as a result of the left ankle injury, because of engaging in such protection - which resulted in the applicant adopting an altered gait. In so finding, I have taken into account the principles relating to factual causation findings in authority such as Kooragang.
Dr Bodel has accepted that the applicant had a protracted painful outcome and persisting limp following the left ankle injury or treatment for that injury. I accept this evidence essentially because it is consistent with the applicant’s evidence which I have also accepted. Dr Bodel examined the applicant on 16 June 2020 and noted, inter-alia, and “confirmed” the applicant exhibiting a 1.2 cm left calf wasting. Dr Negrine also noted “marked wasting” of the applicants left calf on 12 June 2019. This was not long after the second surgery and not long before Dr Negrine recorded, on 3 July 2019, that the applicant had “fallen over twice”. Yet, Dr Shatwell, who examined the applicant about three months after Dr Bodel’s examination of the applicant, found “no wasting of the lower limbs”.
These measurements of limb girth is one factor in the overall analysis because a significant basis of Dr Shatwell’s opinion is that the applicant was not favouring either leg, or if he was limping, there was no effect on the muscle bulk in the limbs, and if such is the case any limp would not be sufficient to change the mechanics of the lumbar spine or left knee. However, there is no medical evidence reconciling the differences in these measurements. Without such evidence, it is difficult for me to make a qualitative assessment as to how such difference arose. One possibility might be that there was an improvement in the applicants left leg musculature between June and October 2020, and Dr Negrine’s measurement was 12 months earlier. There are likely to be other explanations. However, in my opinion it is more important to focus on the issue in dispute and in the context of the evidence overall. When looking at it that way, I have come to the findings (in pars 62-65 above) only after taking into account Dr Shatwell’s leg measurements. Even assuming his measurement is correct, it does not speak to, nor does he consider, at least adequately, various other factors that I have taken into account in making those findings. These factors include an acceptance of the symptoms the applicant has complained of following the ankle injury, that he needed to use crutches for a period of time, and my acceptance of the reliability of the notes of Dr Magar and Dr Negrine.
While Dr Shatwell took a history of the applicant experiencing back pain and left knee pain in the context of altered gait following the ankle injury, it is not clear whether he has accepted that the applicant limped. He opined that the muscle bulk found in the legs suggested the applicant was not favouring either leg; but then went on to state that if there was a limp it would not be sufficient to change the mechanics of the lumbar spinal left knee. In essence, he does so because he does not believe the applicant was engaged in sufficiently strenuous or lengthy activities in order for that to occur. In this regard, he noted the applicant saying he was unable to walk more than 200 to 300 metres, and that while he was able to help with light household duties he was unable to drive for prolonged periods and his walking ability was quite limited; but he did do shopping, which he found to be a chore and did wear a CAM boot when he went out but was limited to short trips for social and shopping activities. While not in precise terms, this is a similar history that was taken from the applicant by Dr Bodel. He takes a history of the applicant not being able to return to motorbike and rock fishing activities, not being able to run, jump or walk on uneven ground or undertake prolonged standing. He also refers to the applicant struggling with household maintenance, cleaning activities, particularly in the garden and lawn. Therefore, he does undertake those activities, although he “struggles” with them. And although there are other activities mentioned above that he cannot do, he does walk some distances, at least 200 to 300 metres and does some shopping.
Dr Bodel took all this into account and comes to the conclusion that the applicants persisting limp as a result of the left ankle injury has resulted in a left knee condition which he describes as an aggravation, acceleration, exacerbation and deterioration of a disease process in the left knee, namely, retro patellar articular cartilage damage – as well as a musculo -ligamentous injury and possible aggravation of degenerative disc disease in the lumbosacral spine. This clarified and confirmed effectively the same opinion expressed in his earlier report of 16 June 2020. In his 18 November 2020 report Dr Bodel adhered to his opinion in that earlier report after having an opportunity to consider Dr Shatwell’s 6 October 2020 report.
Dr Shatwell commented in his first report that there was a large amount of literature negating the proposition that altered gait due to an injury to a limb causes spinal problems. Again, it seems to be a fixed and general view rather than an analysis of all the circumstances of this case. But by the time he wrote his second report, after reading Dr Bodel’s report, it seems Dr Shatwell may have changed his view to the extent that if the applicant was limping (and Dr Shatwell observed him limping in the examination) there was not a sufficiently high level, or lengthy period, of activities to allow for the relevant causal connection to be made with respect to both the low-back and the left knee. Further, Dr Shatwell’s opinion that “reduced activity actually protects the spine and lower limbs from injury… highly unlikely… was mobile enough to develop degenerative change in the left knee or the lumbar are spine due to altered gait” is not persuasive. The applicant does not need to prove that he developed degenerative change as a result of the altered gait. He only needs to prove he has suffered a condition of the left knee and low back as a consequence of the left ankle injury (Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (at [61]).
Again, I prefer Dr Bodel’s opinion to Dr Shatwell’s opinion in this respect, for the reasons already given above. The levels and extent of activity Dr Bodel took into account before coming to his opinion on causation actually persuades me, in conjunction with the whole of the evidence otherwise, that his opinion on causation is the preferable one and more logical and consistent with the evidence overall than Dr Shatwell’s opinion.
I have taken into account the histories provided by the applicant to the medical practitioners in this case as evidence of the fact under s 60 of the Evidence Act1995 (NSW) (e.g. Paper Coaters v Jessop [2009] NSWCA 1 (at [42]).
SUMMARY
I find the applicant suffers a consequential condition of his left knee as a result of the left ankle injury because the left ankle injury resulted in him having an altered gait.
I find the applicant suffers a consequential condition of his lumbar spine as a result of the left ankle injury because the left ankle injury resulted in him having an altered gait.
Michael Perry
MEMBER
5 March 2021
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