Barton v Midcoast Amusements (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barton v Midcoast Amusements (NSW) Pty Ltd [2025] NSWPIC 352
APPLICANT:	Edward Barton
RESPONDENT:	Midcoast Amusements (NSW) Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	25 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; whether applicant suffered consequential condition to his left ankle as a result of a significant tear to his left calf; Held – presence of a consequential condition is a question of causation and must be determined after a common-sense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates followed; an injury can set in train a series of given events and if the chain is unbroken it will be open to the Commission to award compensation; Kumar v Royal Comfort Bedding Pty Ltd referred to; applicant’s general practitioner supports a finding of long term symptomology post-injury and the development of ankle issues; the presence of the consequential condition is established and will be the subject of referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his left lower extremity (calf) in the course of his employment with the respondent on 8 February 2021. 2. As a result of the applicant’s injury, he suffered a consequential condition to his left lower extremity (ankle). 3. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of Injury: 8 February 2021 Body Systems Referred: left lower extremity (calf), left lower extremity (ankle) (consequential condition) Method of Assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and Attachments, and (c) Reply and attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 8 February 2021, Edward Barton (the applicant) was collecting a pinball machine from a residence in the course of his employment with the respondent, Midcoast Amusements (NSW) Pty Ltd, when he suffered a serious tear to his left calf measuring 90mm in length by 16mm wide, and 8mm deep.
The fact of the applicant’s injury is not disputed, and he brings these proceedings seeking payment by the respondent of permanent impairment compensation.
On the applicant’s own case, the assessable impairment to his left lower extremity is said to be that to his left ankle caused as a consequence of the torn calf muscle. The respondent denies there is any assessable impairment to the left ankle as a consequence of the accepted calf injury

ISSUES FOR DETERMINATION

The parties agree that the only issue in dispute is whether the applicant has suffered a consequential condition to his left ankle as a result of the accepted left calf injury.
In the event there is an award for the respondent on the alleged consequential condition, the parties agree there will be an award in its favour overall, as on the applicant’s own case, there is no assessable impairment for the calf tear.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing be me on 15 July 2025. At the hearing, the applicant was represented by Mr McManamey of counsel instructed by Mr Rowland. The respondent was represented by Mr Stiles of counsel instructed by Mr Wares.

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 (Application) and attachments, and
(b) Reply and attachments.

Oral evidence

There is no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition

The question of the presence of a consequential condition is a matter of causation, and the applicant carries the onus of proving the presence of a consequential condition as a result of an accepted injury.
As with any question of causation in a workers’ compensation context, the appropriate test is that set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where His Honour said:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. 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.”
The circumstances of this matter are slightly unusual, in that the applicant is not alleging a consequential condition to a countervailing body system, such as the opposite leg is a result of an altered gait. Rather, the applicant’s case is that the significant and ongoing weakness caused by the tear in his left calf has led to weakness in the ankle on the same leg.
As Mr Stiles noted for the respondent, the Commission does not need to determine the nature of the pathology of any condition in the applicant’s ankle or the degree of any impairment to it. Rather, the factual exercise with which the Commission is charged is to determine whether any weakness in the applicant’s left ankle is as a consequence of the injury to the calf.
Deputy President Roche dealt with questions of causation in the context of consequential conditions in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar). Having referred to the facts of Kooragang and to the judgement of Kirby P, the Deputy President noted in a workers’ compensation context, it has been well recognised an injury can set in train a series of given events, and that 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 Commission to award compensation. The same reasoning applies when assessing the casual link between an accepted injury and a body system said to have been consequentially effected.
The applicant relies on the opinion of his Independent Medical Examiner (IME), Prof Ghabrial. In his first report dated 18 September 2023, Prof Ghabrial said:
“Examination of the lower limbs on 18 September 2023 showed no abnormalities in the right leg however in the left leg, there is slight wasting of the left calf region.
He could not walk on tiptoes properly and he is finding it difficult to launch himself on the left leg tiptoes. Going on his heels, he is finding it weaker to walk on his heels and the power was estimated to be Grade 4 weakness of his left ankle flexors and extensors. There was Grade 4 weakness as well of inversion and eversion of his left ankle. This examination was repeated on two occasions and was identical. There was no sensory deficit or any other abnormalities, although he reported that his left knee does ache. As well, he is having problems with the left buttock region.
The ultrasound performed on 5 July 2021 showed the tear had reduced from 90 mm to a small type of tear.
The ultrasound of the left lower leg performed on 21 September 2021 showed some improvement of the tear, but there was still a tear measuring 52 mm.”
Prof Ghabrial opined the applicant had suffered a major tear to his left calf, noting that even seven months after the injury, it still measured 52mm and it was unlikely there would be any further healing from that point in time. He described the applicant’s main problems as pain in the left calf, slight wasting and weakness of his left ankle flexion, extension, inversion and eversion of Grade 4.
Prof Ghabrial again examined the applicant on 27 March 2025 and provided a report dated 8 April 2025. He noted the applicant continued to have weakness in his left ankle and when it started to develop pain in his right leg.
On examination at that time, there was equal flexion and extension in both ankles and equal eversion and inversion in both ankles. Prof Ghabrial noted there was 1.5cm wasting of the applicant’s left calf as compared to the right side. He noted the applicant complained of weakness in his left ankle, and accordingly Prof Ghabrial carried out an examination of the motor power which still demonstrated Grade 4 weakness in the left ankle flexion, extension, eversion and inversion.
Prof Ghabrial’s opinion was that the tear to the applicant’s calf, although healed to the maximum extent, had left the applicant with residual problems in the form of weakness and atrophy of the medial gastrocnemius muscles.
The respondent’s IME, Dr Diebold, examined the applicant and provided a report dated 14 March 2024. On examination, Dr Diebold was unable to identify any weakness of ankle movements. Although accepting such a seriously torn calf can lead to residual symptoms, Dr Diebold was of the view those symptoms would not include the findings of ankle difficulties as found by Prof Ghabrial.
For the respondent, Mr Stiles submitted the applicant had not discharged the onus of proving on a common-sense basis, an unbroken chain of causation between the torn left calf and any ankle weakness. He noted Prof Ghabrial did not provide an explanation as to why the ankle weakness would be linked to the calf problems and impressed upon the Commission the opinion of Dr Diebold.
For the applicant, Mr McManamey noted there was a significant tear of the applicant’s calf which had not fully healed, and which had rendered him with an altered gait for a significant period of time. Mr McManamey submitted on a common-sense basis; the Commission would be satisfied the long term altered gait of the applicant in circumstances where there was significant wasting and weakness to the calf muscle in the left lower extremity would provide sufficient causal connection to prove the ankle symptoms were consequential.
It is first necessary to determine whether in fact there are ankle symptoms present. Although Dr Diebold did not find any such symptoms, I note Prof Ghabrial examined the applicant on two occasions and repeated the testing of the relevant ankle movements twice on each consultation. On balance, given these consistent findings over time, I prefer the views of Dr Ghabrial and find the ankle symptoms are present.
Additionally, Dr Ghabrial’s findings are broadly supported by the applicant’s general practitioner (GP) Dr Mafohla. In his report dated 23 July 2023, Dr Mafohla stated:
“4. He should have recovered by now fully but he sustained a domino-effect of his injury due to poor gait and posture as his physiotherapy treatment was terminated prematurely. His frustrations during his rehabilitation where he felt he was not being listened to and supported and being "forced" or he felt being pushed to achieve quick recovery and thus created an antagonistic relationship affecting his mental health with unnecessary anxiety impacting his recovery. Due to his poor gait and lack of physiotherapy support his hips. knees and back started paining him up to now limiting his ability to recover fully. His capacity to work is as 6hours per day 5 days per week with lifting up to 1 0kg with no squatting but can push or pull up to 7.5kg
5. As above, he is now limited by ongoing joint pains that developed as a result of poor gait including his knees, hips and back.”
Although not directly referring to the applicant’s ankle, it is relevant his GP has made note of a consistent pattern of altered gait which has led to difficulties in other body systems. That observation is consistent with that made by Prof Ghabrial in his reported from September 2023 to March 2025.
Although there is limited clinical material which deals with the weakness in the ankle, caution must always be taken in relying upon an absence of reference in clinical material as proof of the absence of any symptomology in a given body part.
It is also noteworthy the respondent’s IME Dr Diebold accepted the presence of lengthy symptomology post-calf tear as plausible, though he considered the level of continued symptoms in the present matter as greater than expected given the clinical findings. Dr Diebold also noted the applicant had suffered “significant loss of general endurance and muscle strength.” Dr Diebold considered those symptoms as being related to inactivity during the applicant’s prolonged recovery and could be considered consequential to the accepted injury.
Dr Diebold also noted the applicant’s GP had recorded symptoms in his ankles after the injury at issue.
In my view, Dr Diebold’s findings are consistent with the view the applicant had plainly experienced serious ongoing symptoms after his calf tear. Although Dr Diebold did not find evidence of ankle weakness on examination, he was plainly accepting of the applicant having suffered prolonged and significant difficulties after the injury at issue.
On balance, taking into consideration all of the lay and medical evidence, I am satisfied on a common-sense basis that such a severe and long-standing tear of the applicant’s left calf such as to render him with an altered gait for several years explains the presence of the ankle symptomology as found by Prof Ghabrial. As Mr Stiles appropriately noted and the authorities make clear, it is not necessary for the Commission to make findings as to the precise pathology present as a result of a consequential condition. Rather, the issue is whether the symptoms of which the applicant claimed can be said on a common-sense basis to have arisen as a consequence of the accepted injury.
In my view, on the balance of probabilities, the applicant’s ankle symptoms have arisen as a consequence of the accepted calf injury and the lengthy and protracted altered gait which he suffered afterwards, and accordingly the left ankle will be referred to a Medical Assessor for determination of any whole person impairment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 352

25 July 2025