Brischetto v Flatout Australia Pty Ltd - [2021] NSWPIC 33

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brischetto v Flatout Australia Pty Ltd [2021] NSWPIC 33
APPLICANT:	Maria Brischetto
RESPONDENT:	Flatout Australia Pty Ltd
MEMBER:	Mr Paul Sweeney
DATE OF DECISION:	19 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker alleges medical condition of the left hip as a result of accepted injury to the lower back; where conflicting medical evidence as to the aetiology of the worker’s symptoms; where medical practitioners did not observe altered gait on examination; where employer’s IME opines that there is no scientific basis for the concept of “consequential injury”; Held- finding of causal nexus between back injury, surgery and hip condition; permanent impairment claim referred to medical assessor; evidence of treating hip surgeon accepted in preference to other doctors; opinion of employer’s IME in respect of consequential injury rejected as a bare ipse dixit.
DETERMINATIONS MADE:	1. Amend the Application herein by deleting the claim for weekly payments of compensation. 2. The applicant suffered injury to her lumbar spine arising out of and in the course of employment on 1 December 2016. 3. As a result of the injury, the applicant suffered a consequential medical condition of her left hip namely an aggravation of a femoroacetabular abnormality of the hip. 4. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment of the lumbar spine and the left lower extremity (hip) as a result of the injury on 1 December 2016. 5. Medical Assessor to have access to the documents set out in [6] in the Statement of Reasons.

STATEMENT OF REASONS

INTRODUCTION

Maria Brischetto (the applicant) suffered injury to her low back in the course of her employment as a picker packer with Flatout Australia Pty Ltd (the respondent) on 1 December 2016. As a result of that injury she underwent an L4/L5 microdiscectomy on 14 August 2018. She continues to experience symptoms in her low back and right leg. She has been unable to return to her pre-injury employment since the surgery but has been able to obtain part-time light work.
During the period following the surgery, the applicant developed pain in her left hip and groin. She alleges that these symptoms resulted from altered gait consequent on her low back injury.
The respondent disputes the causal connection between the applicant’s back injury and the onset of symptoms in her left hip. It initially denied liability on the basis of the opinion of
Dr Miniter, an orthopaedic surgeon, who provided a report to the respondent’s insurer. At the arbitration hearing, however, the respondent also submitted that the factual circumstances proven by the records of the applicant’s treating medical practitioners did not support a conclusion of causal nexus between the applicant’s back injury and her left hip symptoms.

PROCEDURE BEFORE THE COMMISSION

When the matter came on for conciliation and arbitration on 22 February 2021, Mr Stanton, of counsel, represented the applicant and Mr Parker of counsel represented the respondent. I was informed by counsel that the parties were unable to reach any mutually satisfactory resolution of the dispute. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to achieve a settlement.
By these proceedings, the applicant claimed weekly payments compensation and permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987. In respect of the latter claim, the respondent accepted that the injury to the applicant’s lumbar spine gave rise to an entitlement to permanent impairment compensation. It denied, however, that an assessment of whole person impairment should include the disputed medical condition of the left hip.
At the arbitration hearing, Mr Stanton withdrew the claim for weekly payments of compensation. Accordingly, the only remaining issue for determination by the Commission is whether the applicant’s left hip symptomatology resulted from the accepted injury to her low back on 1 December 2016.

EVIDENCE

The following documents were received in evidence by the Commission:
(a)    The Application to Resolve a Dispute and the documents attached;
(b)    The Reply to the Application to Resolve a Dispute and the documents attached;
(c)    Applications to admit late documents dated 14 January 2021 and 15 January 2021.
There was no objection to the material referred to above. There was no application to adduce further oral or written evidence.

SUBMISSIONS

The submissions of counsel are recorded, and I do not propose to reiterate in full those submissions in these short reasons. Both counsel relied on the opinions of the specialist medical practitioners who supported their respective cases. Mr Stanton relied on the opinion of Dr Dias, an occupational physician and Dr Woodbridge, an orthopaedic surgeon, who specialises in the treatment of the hip. Both counsel addressed aspects of the clinical record brought into existence following the applicant’s back injury for the purposes of demonstrating a connection or lack of connection between the injury and the onset of left hip symptoms.
It will be necessary to return to the arguments of counsel when resolving the issues in dispute. In the meantime, it is appropriate to set out in summary form the evidence of the applicant and those aspects of the medical record which are relevant to the issue of causal nexus between the injury and left hip symptoms. What follows is not intended to be a comprehensive survey of the evidence. Rather, I refer to those aspects of the evidence which were raised by the parties in their submissions so that the way in which the Commission has determined the case can be readily understood.

EVIDENCE OF THE APPLICANT

The applicant’s evidence is contained in a written statement of 8 December 2020 and in a short supplementary statement dated 13 January 2021. In view of the discontinuance of the claim for weekly compensation, only the former is relevant to this determination.
By the statement of 8 December 2020, the applicant recorded the circumstances surrounding the injury of 1 December 2018, which occurred while she was lifting a box. The applicant recounts that following the injury she experienced back pain and “referred pain down the right leg”.
After a lengthy period of conservative treatment, the applicant came to surgery under
Dr Winder, a neurosurgeon, at St Vincent’s Private Hospital on 14 August 2018. She made a reasonable but incomplete recovery following surgery. She recounts:
“After the surgery I recuperated but I noticed that as a result of my ongoing back pain and right leg pain that I would walk with a limp or in an unnatural manner. The condition and referred pain down my right leg has caused difficulty for me in putting weight on my right leg and as a result of that when I walk I shift my weight to put the majority of my weight on to my left side and this has put strain on my left hip and left leg. Even when just standing I would and still do get pain in my left hip as a result of the shift in my weight.”
The applicant says that the pain in her left hip started to develop about a month after her surgery. She informed Dr Thompson, her general practitioner, of the hip pain. In 2019, she was referred to Dr Chung, a rheumatologist for treatment and ultimately to Dr Adam Woodbridge, an orthopaedic surgeon specialising in conditions of the hip.
The applicant states that she remains with back pain and pain radiating down the right leg. She says:
“I still get pain at my left hip.”
The applicant says that she had no pre-existing problems in her left hip. She says that she now experiences pain in her left groin and clicking of her left hip. She has been treated for this condition by cortisone injection without resolution of her symptomatology.
The applicant says that she has difficulty walking normally. She walks with an altered gait and her left hip seizes up “many times every day when I walk”. The applicant says “I have to walk very slowly and stretch when the hip seizes up.”

POST -OPERATIVE RECORD OF DR WINDER

Dr Winder saw the applicant on 31 August 2018 a few weeks following the L4/5 microdiscectomy. He recorded the following:
“Overall Maria is progressing well. The sharp pain she was experiencing pre-operatively in her right foot is receding. She has some lower back pain and still has some numbness in her foot which I have reassured her is normal and will take some weeks to improve.”
At this consultation, Dr Winder discussed with the applicant physiotherapy treatment, a gentle increase in her physical activity and a reduction in her pain medication.
On 28 September 2018, Dr Winder reported to Dr Thompson that the applicant’s leg pain was improving, and she was “starting to get more strength back through the right leg”. However the applicant reported increasing back pain “and feels as though she is getting some spasm which she is finding somewhat overwhelming”. She was undertaking physiotherapy. Dr Winder expressed the opinion that there were “external stresses” contributing to the applicant’s post-operative circumstances but expressed the view that there was no reason why the applicant should not make an excellent recovery.
On 9 November 2018, Dr Winder recorded that there had been slow improvement in the applicant’s condition. But she had “limitations, which includes sitting”. The applicant was working two days a week and undergoing physiotherapy.
On 5 February 2019, Dr Jane Thompson wrote to Dr Winder as follows:
“Thank you very much for seeing Maria Brischetto, aged 46 yrs for review as she is very distressed with ongoing and ? worsening central low back pain and left buttock pain. She also has functional weakness rt ankle/foot e.g. driving her car.”
Dr Thompson noted that the applicant had some weakness in her right foot, an absent right ankle jerk and reduced sensation in her right foot. The applicant was continuing to take anti-inflammatory medication.
On 25 February 2019, Dr Winder reported that there had been a 75% improvement in the applicant’s leg discomfort since the decompression surgery. He continued:
“As stated previously she has had some ongoing issues with her back problems, but there are a multitude of other psychological components with an overlay of the whole issue where she is very focused on the back pain. She reports the back and left-sided quadrant pain is quite disabling”.
Dr Winder opined that as the applicant had back problems which were not responding to physiotherapy, appropriate treatment options were referral to a sports physician, or alternatively, review by a pain team including a psychologist “as I think she needs this in order to deal with the overlying issues”.

THE MOSMAN PRACTICE

The applicant has been treated by doctors at the Mosman Practice for many years. Following her injury, she was treated by Dr Jane Thompson for right sciatica. Prior to surgery she received extensive conservative treatment including steroid injections and physiotherapy.
On 28 September 2018, the applicant reported to Dr Thompson that she still had left-sided lower back pain at the end of her working day. The applicant recounted that she had problems with the ergonomics of the office in which she was performing selected duties so that:
“At the end of day goes home, needs to lie on floor.”
On 19 December 2018, Dr Thompson recorded that the applicant’s back pain was “worse in afternoons” that stiffness was a problem and that the pain increased with walking.
Responding to the applicant’s difficulties following surgery, Dr Thompson referred her to
Dr Dalton, a rehabilitation physician, and Dr Chung, a rheumatologist.
On 1 June 2019, Dr Thompson recorded that the applicant felt that her “intense pain through hips has improved since personal trainer” was engaged, and while she still had some difficulty with extreme forward flexion, she felt “more confident with movement”.
On 17 June 2019, Dr Thompson recorded that the applicant was making excellent progress and consideration should be given to a return to work on modified duties.
On 3 July 2019, Dr Thompson recorded that the applicant was training twice weekly with a personal trainer and that her low back pain was “much improved”. However, she also recorded that the applicant had “left gluteal hip pain”. The applicant was to see Dr Chung on 4 July 2009.
On 5 July 2019, Dr Thompson noted that the applicant still had left hip pain and was to undergo an MRI requested by Dr Chung. If the MRI was normal, consideration to be given to referral to a pain clinic.
On 18 July 2019, Dr Thompson recorded the results of the MRI including impingement of the femoro-acetabular and minor ligamentum teres tear and a glut medius tendon tear. She questioned whether these were secondary to the applicant’s exercise program.
On 22 July 2019, Dr Thompson recorded that the applicant was distressed with ongoing low back pain and buttock pain.
On 9 September 2019, the applicant reported to Dr Thompson that her back was improving, although she still had right leg, foot and calf numbness. The doctor also recorded the following:
“Past 1/12 – has had some lateral hip burning pain. Suggest see whether the hip pain improves with Nurofen”.
On 30 October 2019, Dr Thompson recorded that the applicant was attending a personal trainer twice weekly, engaging in Pilates and her own exercise and walking program.
Dr Thompson noted that she was to see Dr Brooker, a pain specialist, on the following Friday.
On 19 November 2019, Dr Thompson recorded that Dr Brooker advised that he was referring the applicant to an orthopaedic surgeon in respect of her hip pain. She was to see Dr Adam Woodbridge.
On 22 November 2019, Dr Thompson recorded ongoing leg and buttock pain including some clicking in the hip. She also noted that:
“Pain is in left buttock rather than groin/hip joint.”
On 13 December 2019, Dr Thompson recorded the opinion of Dr Dalton, a rehabilitation physician, that the applicant’s pain was in the lumbo-pelvic region. He thought a referral to a hip surgeon was unnecessary and that the applicant should be treated by physiotherapy.
On 19 December 2019, Dr Thompson recorded that Dr Woodbridge had arranged for image-guided left hip injections which were both diagnostic and therapeutic.
On 15 April 2020 the applicant reported that her back pain and left buttock pain had deteriorated during the last week.

DR SEAMUS DALTON

Dr Dalton first saw the applicant on 17 May 2019. He recorded that post-operatively her sciatica had largely resolved, but she was left with numbness in the right L5 dermatome although that too had improved with time. He continued:
“She is not aware of any weakness and is not really getting any radicular pain. Initially her back felt better but then she started to notice increasing lumbar pain and she has now developed tightness and discomfort around the left hip with mild symptoms on the right side.”
On examination, Dr Dalton recorded that the applicant had “good mobility through both hips” and that there was some hypoesthesia in the right L5 dermatome, but the applicant’s reflexes were intact and there was no demonstrable weakness. Dr Dalton continued:
“I do not think she currently has much in the way of discogenic back pain and her symptoms are more mechanical and a lot of her symptoms reflect her lack of postural endurance and core control. There has been too much emphasis on stretching, releases and loosening up and in someone who is relatively hyper-mobile I think this can make them feel more vulnerable which she herself has identified. I also think that she is getting too many different opinions about how to manage her problems and she need to consolidate.”
On 7 June 2019, Dr Dalton reported that the applicant was feeling more confident and less fear avoidant. He continued:
“She is walking more briskly and is striding out better. She has been working hard on her core stability and while she is still struggling in some areas she can feel there is definite improvement.”
Dr Dalton saw the applicant again on 3 September 2019. He recorded that the applicant continued to make progress although she was “still aware of constant pain”. He continued:
“We had a long discussion about her concerns that she still has pain and she is worried about ignoring this but I note that an MRI of her left hip was fairly non-diagnostic. She does have some radiological features of FAI but that would not explain her pain and there is no evidence of any synovitis or other intra-articular pathology which would be responsible for her symptoms. My feeling is her pain may be related to the lumbar disc pathology and surgery but there are still some mechanical features. I have explained to Maria short of doing a series of diagnostic injections it is very difficult to identify the source of pain and I am not sure that would be a particularly fruitful exercise. I think that she needs to continue to focus on the gains that she is making which have not yet stabilised”.

DR CHUNG

Dr Chung saw the applicant initially on 2 May 2019. She recorded that the applicant was still troubled by persistent low back pain. The doctor recorded that the applicant’s forward/flexion was restricted by pain and that she had “widespread discomfort” with pain also at her forearms and lateral hips. Dr Chung made a preliminary diagnosis of chronic pain with features of sensitisation and secondary fibromyalgia. She suggested that a pain clinic might ultimately be necessary to treat these symptoms.
At a further consultation on 21 May 2019, Dr Chung recommended that the applicant continue to work with her personal trainer on her biomechanics and attend for review at the end of June.
On 4 July 2019, Dr Chung reported that the applicant’s “main concern was that she was not pain free” that Dr Dalton had cleared her to return to work. Dr Chung recorded that the applicant was:
“troubled by a pain in the region of the left lateral hip, certain positions can flare her symptoms. Prolonged walking can flare her pain.”
On examination Dr Chung recorded that it was difficult to reproduce the applicant’s symptoms. She recorded that there was no hip irritability and the range of movement at her left hip was reasonable. She requested an MRI of the left hip/pelvis to “look further into her symptoms”.
On 19 July 2019, Dr Chung reported that the applicant continued to have problematic left hip pain. In respect of the MRI, she said this:
“Essentially it demonstrated a decrease in femoral head neck offset which would predispose her to femoral acetabular impingement. There is no obvious sign of labral tear or chondral loss. No synovitis or effusion seen in joints. There was some increased signal in the attachment of the ligamentum teres which can reflect a partial tear. Otherwise, there was minor tendinosis and partial tearing of her gluteus medius.”
Dr Chung thought that the applicant’s exercises could be changed to target those problems. She noted, however, that the applicant was reluctant to continue with the traditional analgesics and was keen to see what options the pain management clinic can offer.

DR BROOKER

The applicant saw Dr Brooker, a pain specialist, on 1 November 2019. The doctor recorded this:
“Shortly after having the surgery she has been walking, relying on her left side a lot and she noted left hip and low back pain. This is more mechanical in nature. She cannot lie on the left side at night for long periods of time and she has to use a pillow and keep her left leg straight. Internal rotation movements, especially when she is sitting or forward flexed, cause the onset of quite severe pain over or just above the trochanter and below the iliac crest. She has to move and stretch out and relieve it. She feels it clicking at times anteriorly”.
While Dr Brooker thought that the applicant might benefit from the ADAPT program, he would only recommend her after surgical review of the hip. He said this:
“I think her left hip symptoms are significant and would recommend referral to Dr Adam Woodbridge to see if any specific therapy is required”.

DR WOODBRIDGE

Dr Woodbridge saw the applicant on 10 December 2019. In a report of that date to
Dr Thompson he recorded that the applicant’s left hip had a good range of movement with a slight loss of internal rotation of motion and flexion. He noted that combined flexion, adduction and internal rotation reproduced her typical pain. He noted that the right hip was not irritable. He recommended an injection of the hip that was “both diagnostic and therapeutic”. He also thought that this may make physiotherapy more effective if the hip joint was less irritable.
Dr Woodbridge saw the applicant again on 12 March 2020. The injection did not provide lasting relief of the applicant’s symptoms. However, the applicant reported some improvement attributable to her physical training and acupuncture. Dr Woodbridge noted that on examination the hip joint was less irritable than previously. He continued:
“Overall I think Maria has slightly improved and should continue the simple methods that seem to be working and try the extra physiotherapy. Although the injection did not have any lasting benefit it may be useful in the future if she does have a sudden flare-up of symptoms. If this is the case I would be happy to see her again. I have also given Maria some general advice about avoiding impact type exercises and avoiding activities that involve significant combined flexion, adduction and internal rotation of the hip as she probably does have a slightly increased risk of osteoarthritis in the future with her condition.”

DISCUSSION AND FINDINGS

Mr Parker commenced his submissions by referring to the first explicit reference to hip pain in the clinical record of Dr Thompson on 1 June 2019. He emphasised that the doctor recorded “pain through hips”, which had improved since the applicant had employed a personal trainer. He argued that the complaint of pain in both hips undermined the factual basis of the applicant’s medical case. If the applicant experienced pain in both hips, it was unlikely to be caused by favouring the right leg as the applicant asserts, and as Dr Dias and Dr Woodbridge assume in their reports.
I accept that complaints of bilateral hip pain would be difficult to explain on the basis of favouring the applicant’s right leg. More importantly, there is no medical opinion in the case which deals with a possible connection between the applicant’s back and right leg symptoms and bilateral hip pain. There is, at least, one other history recorded of bilateral hip pain recorded by Dr Dalton at about the same time so that it is plausible that the applicant was experiencing symptoms in both hips in mid-2019. On the other hand, as Mr Stanton submitted, there are no right hip complaints in the subsequent medical record.
On 17 June 2019, the applicant complained to Dr Thompson of left gluteal and hip pain. The doctor’s note of 5 July records “left hip pain still”. Similarly, Dr Chung chose to refer the applicant for an MRI of her left hip region this as that was the site of her complaint of pain. Dr Brooker also took a history of left hip symptoms and found restriction of left hip movement on his examination. At his examination of 10 December 2019, Dr Woodbridge recorded abnormalities in respect of the applicant’s left hip while noting that the right hip was “not irritable”.
While the applicant may have experienced some pain in the right hip in 2019, it is evident from the brief review of the medical evidence in the paragraph above that the right hip problem resolved promptly without medical intervention. By contrast, the condition of the applicant’s left side persisted necessitating further medical intervention including the referral to Dr Woodbridge.
In my opinion, the solitary reference to bilateral hip pain in the clinical record of Dr Thompson does not detract from the case that the applicant’s left sided symptoms were caused by favouring her right leg. Most of the entries in the clinical record are consistent with this theory. Conversely, there are only isolated references to right hip pain in mid-2019.
Mr Parker also submitted that the absence of a recorded complaint of left hip pain by a medical practitioner before June 2019 was inconsistent with a causal connection between hip symptoms, the injury, and the surgery in 2018. While there is no earlier reference to left hip pain in the clinical record, the applicant has consistently described the left sided pain as commencing not long after her microdiscectomy. That is her written evidence. However, it is also the history that she has provided to medical practitioners before the commencement of litigation.
On 10 December 2019, for example, Dr Woodbridge recorded that the applicant developed left hip symptoms shortly after the surgery. In those circumstances, I would be reluctant to find that there was a significant temporal gap between the applicant’s surgery and the onset of left hip pain sufficient to defeat the claim. As a matter of common sense, however, if the applicant was favouring her right leg and relying on her left leg when ambulating and standing it may take some time for the altered mechanics of gait to affect the underlying abnormality demonstrated by the radiology in the applicant’s left hip. In these circumstances, one might expect increasing symptoms over time. Thus, a temporal gap between surgery and the onset of symptoms is not necessarily fatal to the applicant’s case.
There are aspects of the medical evidence which are difficult to reconcile with the applicant’s complaints. Dr Winder was at a loss to explain the applicant’s ongoing back and right leg symptoms after what he has described as a “benign” surgical outcome. He suggested that her failure to respond to surgery may have psychological causes.
On the other hand, several medical practitioners, including Dr Dalton, have found hypoesthesia in the L4/5 dermatome distribution in her right leg, which may provide a medical explanation of why the applicant favoured her right leg following surgery. There are also references in Dr Thompson’s notes to functional weakness of the right foot although the medical basis of that problem is not the explained in the evidence. Dr Miniter also found persisting neurological signs in the right lower limb when he examined the applicant. By contrast, he found normal power in the limb.
The other aspect of the medical histories that is difficult to reconcile with the applicant’s claim that she places stress on her left leg and hip by favouring her right leg is that the medical experts do not comment on altered gait during their examinations. I note Dr Dalton observed that the applicant walked with a normal gait at his examination on 17 May 2019. Subsequently, Dr Brooker expressed the opinion that the applicant’s gait was within normal limits and, in August 2020, Dr Dias recorded that the applicant:
“Walked in to today’s consultation room in a slow and steady manner but with a normal gait pattern.”
Then, as is often the case in medicolegal disputes, there is considerable controversy as to the site of the applicant’s left sided pain. Dr Dalton argued that the applicant should not undergo an MRI of the left hip as the source of the applicant’s left-sided pain was the low back or the buttock and not the hip. After reviewing the MRI report, he expressed the opinion that it was not diagnostic of a particular condition. In his final report, however, he opined that it would be difficult to identify the source of the applicant’s left-sided pain “short of doing a series of guided injections”, which he did not think was warranted in the circumstances.
It will be evident from the rehearsal of aspects of her evidence above, that Dr Chung, the rheumatologist, was also unconvinced that the source of the applicant’s pain was her left hip. On examination, the doctor was unable to reproduce the applicant’s left hip pain. She expressed the opinion that the applicant suffered from a chronic pain syndrome with elements of fibromyalgia.
Dr Thompson also recorded on at least one occasion that the applicant’s left leg pain was in the buttock rather than the hip. Dr Miniter, who saw the applicant recently, also failed to reproduce the applicant’s typical left-sided pain on his examination of the applicant’s left hip.
Despite the observations by specialists in respect of gait, which I have set out above,
Dr Dias, an occupational physician, expressed the opinion that there was a causal connection between the subject injury and the applicant’s left hip condition. He said this:
“She underwent decompressive lumbar spine surgery at the L4/5 level on 14 August 2018 with only a mild resultant improvement in symptomatology. In addition,
Ms Brischetto has also developed a consequential left hip condition due to prolonged over-compensation for altered gait mechanics as a result of her lower back and right lower limb radicular symptomatology, with her left hip condition first manifesting in late 2018. In my opinion the causal chain stemming from the subject workplace accident to Ms Brischetto’s current condition affecting her low back and consequential condition affecting her left limb remains unbroken.”
The contrary case is put by Dr Miniter, orthopaedic surgeon, who saw the applicant at the request of the respondent’s insurer on 11 September 2020 and prepared a report dated 15 September 2020. Dr Miniter took a history that the surgery undertaken by Dr Winder had “not been an entire success.” He continued:
“About a month after the surgery, she began to experience some left-sided lower back and “hip” region discomfort. She did not give a good description of impingement but had an MRI scan of the hip which showed very subtle changes of femoro-acetabular impingement. There was some pathology associated with the ligamentum teres.”
Dr Miniter found altered sensation in the right foot consistent with the dermatomal distribution of the L5 nerve and a decreased right ankle jerk, although he stated that power in the right lower limb was within normal limits. In respect of her left hip, he said this:
“There are no features of restricted movement in the left hip. There are no features of impingement at the left hip. There are no features of hip pathology to clinical examination, there is no leg discrepancy.”
Dr Miniter expressed the opinion that the applicant’s hip was “within normal limits from a physical examination point of view”. He thought that the MRI scan did not suggest any pathology that might be associated with workplace injury.
Dr Miniter thought that the applicant was fit for work. He thought that the post-operative MRI scan did not suggest pathology that would prevent her from returning to her current administrative employment. He also challenged Dr Dias’ opinion that the applicant had suffered a consequential injury to the hip. He said this:
“One is surprised to see the ongoing recommendation that consequential injury has occurred in a context such as this: there is clear evidence in the literature that consequential injury is not a fact and in this context one is surprised that it continues to appear in reports from Dr Dias. Perhaps Dr Dias would like to avail himself of the opportunity to review the objective information in this regard.”
Dr Miniter does not reference the evidence in the literature that calls into question the development of consequential medical conditions of the hip as a result of altered gait. Thus, it is not possible to test his opinion by reference to that literature or for Dr Dias to respond. If there was cogent evidence in the medical literature that favouring one lower limb because of pain cannot cause symptoms in the contralateral limb, one might expect it to be cited, partially reproduced, or annexed to the report.
Dr Miniter’s opinion that consequential injuries are “not a fact” is, therefore, a classic example of an oracular pronouncement by an expert, often referred to as a bare ipse dixit, which is generally unpersuasive for the reasons given by Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh1953 SC 34 at 39-40. As
Mr Stanton argued it is also difficult to understand precisely what Dr Miniter means by his statement that consequential injuries are “not a fact”.
Contrary to Dr Miniter’s opinion, which specifically addresses the findings of Dr Dias, it is obvious that Dr Woodbridge, a hip specialist, accepts that altered gait or favouring a lower limb can produce symptoms in the contralateral limb. In the circumstances, I do not accept this aspect of Dr Miniter’s opinion.
There remain the difficult questions of whether the applicant’s left-sided pain does emanate from her left hip and whether that pain is caused by altered gait as alleged by the applicant. As I have indicated above, there is a substantial body of medical evidence, including two of the treating specialists, and, of course, Dr Miniter who cast doubt on the source of the applicant’s pain. Mr Stanton argued that the opinion of Dr Woodbridge should be given significant weight in respect of the first of these questions given his speciality, his findings on examination, and the applicant’s response to the guided injections which the applicant underwent at his direction. In my opinion, there is considerable force in that argument.
By his report of 12 November 2020, Dr Woodbridge states that he was able to reproduce the applicant’s pain at his examination. He states that hip pain was reproduced by a “combined motion of flexion, abduction and internal rotation at her hip.” He diagnosed femoroacetabular impingement. He said this:
“Overall I felt that Maria's hip symptoms were due to femoroacetabular impingement. The cause of femoroacetabular impingement can be quite complex and multifactorial. Generally, this condition is caused by an underlying anatomical variation which predisposes the femur to impinge on the acetabular socket. Equally, many patients with these anatomical features can be completely asymptomatic. It is certainly possible that overload on the left side could have triggered the onset of symptoms in Maria's case. Even changes in spinal and pelvis posture can alter the orientation of the acetabular socket during activities, potentially contributing to femoroacetabular impingement. Overall, I think it is highly likely that Maria's lower back and right leg symptoms were a trigger to exacerbate some underlying pathology in the hip joint.”
Patently, Dr Woodbridge is in no doubt as to the site of the applicant’s left lower limb symptoms. The symptoms which he reproduced on examination were consistent with the diagnosis of femero-acetabular impingement. There is radiological evidence of that condition. It is doubtful if other medical practitioners performed the specific test of “combined motion of flexion, abduction and internal rotation at the hip”, which the doctor employed to diagnose the applicant’s condition. While all the specialist medical evidence is of importance,
Dr Woodbridge’s opinion must be given particular weight in view of his specialty in the treatment of conditions of the hips.
It is, of course, plausible that the applicant had no observable restriction of left hip movement by the time she saw Dr Miniter in late 2020. That does not undermine Dr Woodbridge’s theory as it is evident the restriction of movement of the applicant’s left hip, which he demonstrated on examination is quite subtle and the left hip was significantly less irritable when he last examined her in March 2020. The applicant also reported that her hip had improved with her exercise program. Further improvement might be expected.
It is true that there is little corroboration in the medical record for the applicant’s evidence that she ambulated with an altered gait favouring her right leg in the post- operative period. On the other hand, as I have discussed above, it is apparent that the applicant gave an account of this phenomenon to the doctors in 2019, well before the commencement of this litigation. Both Dr Brooker and Dr Woodbridge record this history. In these circumstances, it seems to me inappropriate to reject the applicant’s written evidence that she developed some alteration gait causing her to favour her right lower limb in the period following the surgery.
Certainly, the applicant has complained of ongoing difficulties with her right lower limb since the surgery and there is no proper basis to completely reject her account of her right lower limb symptoms. There are, of course, clinical findings consistent with some residual leg pain and foot weakness following surgery, although there is an equally plausible theory that these may be magnified by psychological factors and the post-operative MRI of the lumbar spine does not suggest continuing nerve root compression.
It is evident that in the period following surgery the applicant had an extraordinarily diverse regime of treatment. Not only was she referred to medical practitioners in five specialties, but she has undertaken an intense exercise program apparently overseen by a personal trainer. If, as I accept, the applicant does have a left hip problem even a minor alteration of gait may be productive of symptoms given the exercise regime which she undertook in 2019.
On balance, I have concluded that the evidence establishes that altered gait resulting in the favouring her right leg has materially contributed to the development of symptoms in her left hip by way of an aggravation of an underlying femoroacetabular abnormality. I accept the applicant’s evidence of abnormality of gait following surgery. I also prefer the evidence of
Dr Woodbridge and, possibly for the first time, Dr Dias to that of Dr Miniter, and the treating medical practitioners whose opinions differ from those of Dr Woodbridge.
Accordingly, I propose to make the following orders:
(a)    Amend the Application hearing by deleting the claim for weekly payments of compensation.
(b)    The applicant suffered injury to her lumbar spine arising out of and in the course of employment on 1 December 2016.
(c)    As a result of the injury, the applicant suffered a consequential medical condition of her left hip namely an aggravation of a femoroacetabular abnormality of the hip.
(d)    Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment of the lumbar spine and the left lower extremity (hip) as a result of the injury of 1 December 2016.

Paul Sweeney
MEMBER

19 March 2021