Broderick v Swan Hardware & Staff Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Broderick v Swan Hardware & Staff Pty Ltd [2023] NSWPIC 160
APPLICANT:	Michael Broderick
RESPONDENT:	Swan Hardware & Staff Pty Ltd
senior Member:	Kerry Haddock
DATE OF DECISION:	13 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to right ankle; applicant claimed to have sustained consequential condition of previously injured right shoulder and left and right knees; consideration of McCarthy v Patrick Stevedores No 1 Pty Limited, Moon v Conmah Pty Limited, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Seif v Secretary, Department of Family and Community Services, Kumar v Royal Comfort Bedding Pty Ltd, Moriarty-Baes v Office Works Superstores Pty Ltd and Kooragang Cement Pty Ltd v Bates; Held – applicant sustained consequential conditions of his right shoulder, right knee; and left knee as a result of injury to his right ankle; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor.
determinations made:	1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 8 August 2016 – personal injury. (b) Body systems/parts: (i) right lower extremity (right ankle and right knee); (ii) left lower extremity (left knee); (iii) right upper extremity (right shoulder), and (iv) scarring (TEMSKI). (c) Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 30 November 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Michael Broderick (Mr Broderick) was employed by the respondent, Swan Hardware & Staff Pty Ltd as a delivery driver, storeman, and retail salesman.
Mr Broderick sustained an accepted injury to his right ankle on 8 August 2016. He also claims to have sustained consequential conditions of his right shoulder, lumbar spine, left knee, and right knee as a result of that injury. He sustained an accepted injury to his right shoulder, which is not relied on in these proceedings, on 13 April 2016.
On 14 April 2016, the respondent’s Register of Injuries recorded that on 13 April 2016, the applicant strained his right shoulder lifting a pack of pipes onto a ute (utility truck).
On 22 April 2016, the respondent completed an Employer Injury Claim Form. It recorded the injury to the applicant’s right shoulder on 13 April 2016, in the same terms as the Register of Injuries.
On 8 July 2016, the respondent’s Register of Injuries recorded that on that date, the applicant lost his footing and fell downstairs, injuring his right lower leg. An ambulance had been called.
By letter dated 8 July 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant’s solicitors served a Permanent Impairment Claim Form (the claim form), dated 25 June 2021. The claim form stated that the body systems affected by the injury were right lower limb; left lower limb; lumbar spine; right upper limb; and scarring. The applicant had a “pre-existing condition to the right shoulder” during the course of his employment with the respondent.
The applicant claimed $43,630 in respect of 18% whole person impairment (WPI). He also advised of his intention to claim reimbursement of medical expenses incurred from the date of injury, and payments of weekly compensation to date and continuing.
On 22 July 2021, the solicitors for the respondent wrote to the applicant’s solicitors, advising that they acted on instructions from the respondent’s insurer, AAI Ltd t/as GIO (GIO).
GIO’s solicitors advised that the applicant had submitted two claims, one for injury to the right shoulder on 13 April 2016, and one for injury to the right ankle and consequential injury to the back on 8 August 2016.
The claim form included only the claim number for the injury on 8 August 2016, referred to
8 August 2016 as the only date of injury, and referred to the injury to the right shoulder (on 13 April 2016).
The respondent’s solicitors requested the applicant’s solicitors to provide particulars of each date of injury alleged for the purposes of the s 66 claim; and the WPI alleged, by reference to each date of injury.
On 28 July 2021, the applicant’s solicitors advised that the s 66 claim was lodged only in respect of the date of injury of 8 August 2016. The claim was made in respect of [injury to the] right ankle; consequential injury to the lumbar spine; consequential injury to the right shoulder; consequential injury to the right knee; consequential injury to the left knee; and scarring.
The applicant’s solicitors stated that the consequential right shoulder injury was claimed on the basis that the applicant’s fractured right ankle resulted in his reliance on crutches and other such aids, causing aggravation of the prior right shoulder injury. The applicant relied on the evidence of Dr (Matthew) Giblin, which had previously been served.
The respondent’s solicitors again wrote to the applicant’s solicitors on 11 August 2021. They understood Dr Giblin to have assessed 6% WPI by reference to injury to the applicant’s right shoulder caused by “nature & conditions 2014/2015”; 2% WPI by reference to injury to both the applicant’s knees as a result of “nature and conditions”, without reference to any date; and 8% WPI by reference to injury to the applicant’s right lower extremity (ankle) and scarring on 8 August 2016.
The respondent’s solicitors asserted that, therefore, the applicant’s solicitors having confirmed that the s 66 claim was based only on injury alleged on 8 August 2016, Dr Giblin had assessed a combined WPI of 8% by reference to that injury. GIO rejected the apparent suggestion that it was permissible to aggregate impairments by reference to different body systems as a result of different dates of injury.
The respondent’s solicitors stated that the applicant had made two separate claims on GIO, that is:
(a) a claim in respect of injury to the right shoulder as a result of lifting pipes onto a vehicle on 13 April 2016, and
(b) a claim in respect of an injury to the right ankle as a result of a fall down some stairs on 8 July 2016.
The respondent’s solicitors maintained that the history recorded by Dr Giblin could not be reconciled with the contemporaneous evidence, or with the allegations made by the applicant in the proceedings pending before the District Court.
The respondent’s solicitors requested a copy of the applicant’s solicitors’ letter to Dr Giblin and the documents provided to him. Pending receipt of that information and clarification of the matters they had raised, they advised that GIO disputed liability under s 66 of the 1987 Act in respect of the injury on 8 August 2016 on the grounds that:
(a) Dr Giblin had certified a combined WPI of 8% as a result of that injury, and
(b) Dr McGroder, who assessed the applicant at his solicitors’ request, in reports dated 19 October 2020 assessed 6% WPI as a result of that injury.
The respondent’s solicitors asserted that, given that Dr Giblin had not assessed WPI as a result of the injury on 8 August 2016 of at least 11%, a valid claim had not been made in respect of that injury. They considered that s 281(2) of the Workplace Injury Managementand Workers Compensation Act 1998 (the 1998 Act) did not oblige their client to determine what was an invalid claim.
On 25 November 2021, the applicant’s solicitors served a supplementary report of Dr Giblin, in which he opined that the applicant had suffered 15% WPI “as a result of the subject workplace incident” (referring to injury on 8 August 2016).
The applicant amended his claim to claim $34,690 in respect of 15% WPI.
On 25 January 2022, the respondent’s solicitors wrote to the applicant’s solicitors, requesting that their letter be treated as a notice pursuant to s 78 of the 1998 Act.
The respondent disputed liability for the applicant’s claim pursuant to s 66 of the 1987 Act in respect of the injury on 8 August 2016.
The respondent maintained that the injury alleged on 8 August 2016 was confined to the applicant’s right ankle; the injury did not result in WPI of greater than 10%, so as to satisfy the threshold imposed by s 66(1) of the 1987 Act; and the injury to the applicant’s right shoulder resulted from a separate incident on 13 April 2016. The work-related injuries suffered by the applicant were confined to injury to the right shoulder on 13 April 2016 and injury to the right ankle on 8 August 2016.
The respondent stated that the other injuries referred to by Dr Giblin in his series of reports did not result from either the incident on 13 April 2016 or the incident on 8 August 2016, or otherwise from injury arising out of or in the course of the applicant’s employment or to which his employment was a substantial contributing factor. The apparent suggestion by Dr Giblin that it was permissible to aggregate the injury to the applicant’s right shoulder on
13 April 2016 with the injury to the right ankle on 8 August 2016, to give a single WPI, was incorrect and not permissible.
On 12 April 2022, the applicant’s solicitors wrote to the respondent’s solicitors. They referred to “recent matters raised at the Personal Injury Commission (the Commission), following which proceedings were discontinued”, and served an updated report from Dr Giblin.
The applicant’s claim was amended to claim $37,670 in respect of 16% WPI as a result of injury on 8 August 2016.
On 6 June 2022, the respondent’s solicitors advised that liability remained in dispute, essentially on the same grounds on which the respondent previously relied. They asserted that it was clear from Dr Giblin’s report dated 23 August 2021 that he had based his opinion on an incorrect history. In particular, he was not aware of the right shoulder injury on
13 April 2016. The letter was a notice pursuant to s 78 of the 1998 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on
22 November 2022.
The applicant claimed that on 8 August 2016, he tripped and fell downstairs whilst at work, as a result of which he suffered a right ankle injury. He suffered a consequential injury to his right shoulder as a result of the extended use of crutches. He experienced altered gait due to the subject injury and suffered further consequential injury to his lumbar spine and bilateral knees.
The Application claimed $37,670 in respect of 16% WPI as a result of injury to the right lower extremity; left lower extremity; lumbar spine; right upper extremity; and TEMSKI scarring.
The respondent lodged its Reply on 14 December 2022.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained any of the consequential conditions, that is, to his right shoulder, right knee, or left knee, in respect of which he claims.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the Teams platform on
14 March 2023. Ms Grotte of counsel appeared for the applicant, instructed by Mr Watt.
Mr Harris appeared for the respondent. The applicant was present. Ms Gamlath of GIO was excused, as technical difficulties precluded her attendance, but she was available to provide instructions by telephone if required.
The Application was amended to delete the claim for consequential condition of the lumbar spine, as the WPI in respect of that claimed condition had been assessed by Dr Giblin, on whose reports he relied to make his claim, as 0%.
The parties agreed that the applicant’s permanent impairment as a result of the accepted injury to his right ankle is insufficient to allow for referral to a Medical Assessor for assessment of the medical dispute.
The parties relied on several reports from independent medical examiners. No objection was taken to reliance on the reports for the purpose of the history: McCarthy v Patrick Stevedores No 1 Pty Limited.[1]
[1] [2010] NSWWCCPD 96.
The parties agreed that, if the medical dispute is referred to a Medical Assessor, all the documents in evidence are to be provided to him/her.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 30 November 2022 and attached documents, filed by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Michael Broderick

The applicant’s statement is dated 8 January 2022. Much of it is irrelevant to the matters in dispute and is apparently directed to the claim for common law damages he has commenced. I do not intend to refer to his evidence about a consequential condition of his lower back and hips, or his alleged psychological condition, in respect of which no claim is made in this Application.
In or around 2014, he felt a “pop” in his right shoulder while lifting PVC pipes onto a rack on a utility. He consulted his general practitioner (GP), Dr Christina Wong, was referred for physiotherapy, and provided with medication.
He was on light duties for about one month before returning to his full duties. His symptoms settled after physiotherapy but would flare up occasionally when he was required to do particularly heavy lifting.
On about 15 April 2016 (assumed to be a reference to the injury on 13 April 2016), he experienced an aggravation of pain in his right shoulder, again while lifting PVC pipes onto the roof racks of a utility. He felt and heard a “pop” and then sharp pains in his right shoulder. His arm felt weak, and he knew he had further injured his shoulder.
He continued to attend regular physiotherapy sessions. He was also placed on restricted duties but felt pressured to carry out duties that were beyond his capacity. His condition improved and he was issued with a final WorkCover certificate, which cleared him for full unrestricted duties, on 6 July 2016.
On 8 August 2016, he was descending the stairs from the storeroom when his right foot slipped, and he fell further down the stairs. His foot slipped through the rise between the second and third steps and got tangled there. He became off balance and fell forward. He felt his ankle snap. He disentangled himself and called for his colleague, Chris Burns.
An ambulance was called, and the applicant was provided with first aid. He was taken to South East Regional Hospital (SERH) in Bega, where he was admitted.
After approximately seven days in the surgical ward, he underwent surgery to his right ankle. After a further week, he was discharged with a backslab. He was required to use crutches to mobilise. He was referred for physiotherapy.
His ankle injury continued to cause great pain. By January 2017, his ankle and leg became very swollen, completely discoloured and incredibly sore. He had virtually lost his entire mobility on that leg.
After many complications, largely caused by infection, he was readmitted to SERH on
6 February 2017. He was advised that the infection was sitting above a plate in his ankle, and it would be safer to remove all the hardware.
On 10 February 2017, he had surgery to remove the hardware. He remained in hospital for a further 2.5 weeks.
He continued to attend physiotherapy, but his ankle continued to be very painful and weak. He struggled to mobilise without a walking stick. His ankle had failed to improve and felt as if it had become worse. He had chronic foot and leg swelling, recurrent infections, and his doctor previously advised he was suffering from a likely reflex sympathetic dystrophy (RSD).
His right ankle and right heel had continued to trouble him. He sometimes had “pain bursts”, increasing in intensity and frequency. His right ankle became very swollen on days he tried to be active.
Although he had a pre-existing shoulder injury, he was able to continue working. However, following the fall on 8 August 2016, he experienced an aggravation of the right shoulder symptoms. As his upper body fell towards the ground, he extended his arms to break the fall. In doing so, he hurt his right shoulder, ribs, knee and back as he contacted the ground, primarily on his right side.
Given the severity of the break in his ankle, it was the focus of most of his treatment.. He was put on a lot of pain medication and does not think he was fully aware of how much he had hurt his shoulder until a few weeks after the accident, when he started to use crutches after surgery.
He had bruising under his arms almost immediately from using crutches, and it was hard to bear the weight of his body on them. He felt the pressure on his right shoulder each time he used the crutches and had to have regular breaks.
By about two to three weeks after using the crutches, the pain in his right shoulder had intensified significantly. He complained about this to his treating doctors, but they noted he could just limit the use of his shoulder, as he was not working, and they preferred to focus on treating his ankle.
He used the crutches full time for about six months following the surgery. As a result of the pain in his right shoulder, he started using just the left crutch. He stopped using them full time after about six months, and only used them when he had difficulty moving about.
He attended Dr Wong in relation to the pain in his shoulder in about November 2016, and was referred for an ultrasound, which he underwent on 28 November 2016. It revealed a small full thickness tear in the tendon, which he did not have when he commenced physiotherapy on 10 May 2016.
In or about early January 2017, he was referred to orthopaedic surgeon, Dr (Krishnankutty) Rajesh. Dr Rajesh referred him for cortisone injection in his right shoulder and physiotherapy. He underwent the injection on or about 31 January 2017, and estimated it eased his pain by about one quarter.
On 21 April 2017, he had an MRI of his shoulder that also demonstrated a full thickness tear. He was advised he had a rotator cuff tear, which did not appear in the scans he had in May 2016.
He consulted Dr Rajesh on or about 30 June 2017. Dr Rajesh advised that he should not undergo rotator cuff repair at that stage, as they were focusing on his recovery from the infection in his ankle. He was referred for further cortisone injection and physiotherapy.
In about 2018, he sought a second opinion from Dr (Christopher) Phoon, who recommended surgery to his right shoulder. Dr Phoon left the practice, and he came back under Dr Rajesh’s care. Dr Rajesh was of the view he should continue conservative treatment, so he did not undergo surgery.
He continued to experience pain in his right shoulder, which his GP attempted to manage through medications designed to treat both his shoulder and other injuries. He continued physiotherapy.
As a result of his ankle injury, he developed an altered gait, and had not walked the same since 8 August 2016. His left leg and femur had become sore as a result of carrying more weight. His physiotherapist told him his leg and femur pain were the result of him avoiding the right ankle and loading his weight on the left femur. He did not know whether the pain was a result of him injuring the left femur in the fall, or of his right ankle injury.

He fractured his left femur in his early twenties, playing football. He recovered and did not have any pain or symptoms in his left leg for many years prior to his ankle injury. About six months after the accident, he started to engage heavily with his rehabilitation and became more mobile with physiotherapy. It was after this that he noticed the increase in pain in his left leg.
Due to the fact that he limped and had a very different gait, he noticed approximately six months after the accident, when he started to engage more heavily in physiotherapy, that his left knee was quite sore. He believed this was because he was loading his left leg to compensate for the weakness in his right. Only two to three months after noticing pain in his left knee, he began to experience increasing right knee pain.

District Court proceedings

The applicant has filed a Statement of Claim (SOC) in the District Court at Wollongong, against Omnium Corporation Pty Ltd, which was the owner and lessor of the premises where he sustained injury the on 8 August 2016. The SOC is dated 6 August 2019.
The SOC alleges that on 8 August 2016, the applicant sustained a dislocation fracture of the right ankle when he fell downstairs.
The particulars of injury relate to the injury to the applicant’s right ankle, including scarring; consequential low back injury; consequential psychological injury; and consequential aggravation of a previous injury to the left femur. There is no claim for injury to, or consequential condition of, the right shoulder or either knee.
The applicant filed an Amended Statement of Particulars dated 21 August 2019. The particulars of injuries were the same. Once again, there was no claim for injury to, or consequential condition of, the right shoulder or either knee.

Medical evidence

SERH Bega

The hospital discharge summary was printed on 18 August 2016, and noted the date of discharge as 17 August 2016
The applicant had presented on 8 August 2016 with a right Weber B fracture after a fall from a ladder [sic]. He underwent an emergency closed reduction. He had a fall on crutches on
13 August 2016, “nil further fracture or displacement sustained on repeat X-ray”.
On 15 August 2016, the applicant underwent internal fixation. He was mobilising very well with crutches by two days post-operatively, and pain was controlled.

Pambula Medical Centre

On 15 April 2016, Dr Christina Wong recorded that the applicant lifted a heavy object above shoulder height at work, and heard a pop, but kept working. She diagnosed likely right rotator cuff injury.
On 4 May 2016, Dr Wong recorded that the applicant “aggravates at work, for a few days”. He was still performing certain movements that aggravated the pain. He was “generally improved now”. Dr Wong noted “u/ss discussed – subdeltoid bursitis”.
On 6 May 2016, Dr Wong reported to Allianz Australia Workers Compensation (NSW) Limited (Allianz), which was at that time managing the claim for injury to the applicant’s right shoulder.
Dr Wong reported that X-ray and ultrasound on 24 April 2016 showed subdeltoid bursitis, but no rotator cuff tear. There was a possibility that a minor tear was not detected on ultrasound, but they had chosen not to proceed to MRI, pending symptom recovery/progression.
On 1 June 2016, Dr Wong recorded that the applicant was having two weeks off. He was “continually re-injuring at work due to lifting”. The pain was 1/10. He was improving generally.
On 6 July 2016, Dr Wong certified the applicant fit for pre-injury duties. He had a good range of motion in his right shoulder. His pain was less than 1/10, with nil use of analgesics.
On 5 August 2016, Dr Wong recorded that the applicant had an aggravated flare up of shoulder pain for three days. It was “severe 8/10, shooting pains up (R) side neck”. There was pain over the lateral tip of the shoulder.
The pain had “started last week at work, aggravated at work”. Dr Wong diagnosed “likely supraspinatus insult”. The applicant needed a WorkCover certificate, “on restricted duties”.
On 19 August 2016, Dr Wong recorded that the applicant had a right fibular Weber B fracture. It occurred at work, he slipped on the floor, with his right foot between the treads of two steps.
On 26 August 2016, Dr Wong recorded that Dr Rajesh had requested a below knee cast, and a fibre cast was applied.
Dr Wong continued to treat the applicant for his right ankle injury. On 5 October 2016, she recorded that he said his right foot felt hot. It was red and swollen. There was reduced sensation globally, more over the heel.
Dr Wong noted “? early reflex dystrophy”. She suggested early mobilisation exercises with the physiotherapist.
The applicant continued to consult Dr Wong, who issued WorkCover certificates of capacity (COC).
On 28 November 2016, Dr Janet Watterson recorded that the applicant was unable to do the work he had been doing “as it is the right leg”. The physiotherapist had suggested perhaps driving in four weeks, which seemed hopeful to her, given the condition of his ankle.
The applicant had numbness under his foot, very limited dorsiflexion, swelling and pain on dependency, and was walking with one crutch.
On 5 December 2016, Dr Watterson recorded that the applicant had issues with returning to work. He could not get a boot on. Even a “Croc” got too tight in the day. The physiotherapist worked hard on it on Thursday, “was very painful”.
On 14 December 2016, Dr Wong recorded that the applicant’s pain was improving, but his ankle was still swollen and there were some issues with numbness.
The applicant was not fit for his usual work. He had tried to do clerical duties, but his workstation was not set up ergonomically if he needed to have his leg elevated.
Dr Wong noted “? RSD complicating the fracture”, and “xr knee and shoulder discussed”. There is a notation that radiology was notified by Dr Wong – right shoulder ultrasound on
28 November 2016; and right ankle and right knee X-ray on 12 December 2016.
On 13 January 2017, Dr Wong recorded that the applicant had developed right lower leg ulcers and cellulitis. There was a request for right shoulder cortisone so he would be able to swim.
Dr Wong recorded that the applicant had a known supraspinatus tear and subdeltoid bursitis of the right shoulder. He had a full range of movement and was mildly tender at the extremes of abduction only.
On 18 January 2017, Dr Wong recorded that the applicant’s ulcers were healing. He had made an appointment for shoulder cortisone next week, “needs w/cover approval”.
On 23 January 2017, it appears that the applicant sent an email to Dr Wong. He expressed concern about an upcoming conference call regarding his return to work. He would be “happy to return to work once we have attended to ongoing issues with leg/ankle/heel/foot along with my growing anxiety”.

100.On 3 February 2017, the applicant sent another email to Dr Wong, regarding an independent examination arranged by the insurer with Dr Liu.
101.The applicant was concerned that he would be forced back to work. He felt that the mental side was fast overtaking the physical barriers that his ankle presented. His ankle still swelled, particularly after time on it, rehabilitation, and physiotherapy.
102.On 17 February 2017, Dr Wong recorded a right shoulder review. She had suggested “review with ortho. ? for surgical repair”. This was a WorkCover consultation.
103.On 1 March 2017, Dr Wong recorded that there was a recurrence of swelling and pain across the ankle on the right side. The applicant was still seeing “Neil” (Mr Neil Dmytryk, physiotherapist). There was too much pain to weight-bear.
104.On 24 March 2017, Dr Wong recorded that WorkCover had requested independent specialist reviews for the applicant’s shoulder and ankle. It was suggested he could return to light duties. He was “not too keen on this. Has issues with anxiety and depressed feelings”.
105.On 18 April 2017, Dr Wong recorded a phone conference with “Amanda” of Pinnacle Rehab. Amanda had suggested three separate certificates, for depression, the shoulder, and the ankle.
106.On 23 June 2017, Dr Wong recorded that the applicant’s ankle wound was healing, so they could re-visit the shoulder reconstruction option.
107.On 4 October 2017, the applicant sent an email to Dr Wong advising that he needed a certificate for the shoulder, as well as the ankle.
108.Dr Wong reported to Allianz on 15 February 2017.
109.Dr Wong referred to the applicant’s psychological symptoms, which she opined were a direct result of two related injuries, both occurring at work. He was initially managed for a right shoulder bursitis, which then deteriorated into rotator cuff tear. He then had a work-related right ankle fracture.
110.The applicant’s right ankle injury had been causing symptoms of pain, swelling, and numbness. He had ongoing infections of his swollen foot.
111.The applicant perceived that the cause of his psychological presentation was protracted poor healing of his ankle fracture, complications of the fracture, and progressive shoulder problems due to supraspinatus tear.
112.In a further report to Allianz dated 15 February 2017, Dr Wong noted that the applicant first consulted her for his shoulder injury on 15 April 2016. Subsequent imaging confirmed subdeltoid bursitis of the right shoulder.
113.The applicant was treated with physiotherapy and analgesia. He was discharged with a final WorkCover certificate on 6 July 2016.
114.On month later, in August (2016), the applicant sustained a further injury to the same shoulder. A repeat ultrasound in November confirmed the diagnosis of supraspinatus tear,
1cm, associated with painful arc syndrome.
115.Since this latest diagnosis, the applicant had sustained a non-related injury at work, to his right ankle.
116.The applicant’s shoulder had not been improving because he was required to use it to support his fractured and painful ankle. He had required the use of both upper limbs to safely use crutches and maintain some domestic independence.
117.The applicant’s right shoulder symptoms had necessitated ultrasound guided cortisone injection. Dr Wong attached a COC with regard to the applicant’s left [sic] shoulder injury. He would require ongoing review of his right shoulder, which would need to be distinguished from reviews of his right ankle, to delineate claim numbers.
118.On 24 March 2017, Dr Wong referred the applicant to Dr David Skalicky.
119.Dr Wong reported that the applicant had a complicated WorkCover history. He injured his right shoulder 18 months ago, with ultrasound confirming supraspinatus tear. He then slipped at work and sustained a comminuted distal fibular fracture. The ankle had had a long healing time, with possible associated RSD.
120.On 17 May 2017, Dr Wong reported to Allianz that the applicant had three concurrent WorkCover claims, for his ankle injury, his shoulder injury, and his psychological injury.
121.Given the nature of the applicant’s accumulated injuries, and the prolonged recovery period, which had been complicated by infections, Dr Wong supported the notion that returning to pre-injury duties was not realistic.
122.On 23 June 2017, Dr Wong referred the applicant to Dr Rajesh.
123.Dr Wong reported that the applicant initially injured his shoulder in early 2016, then “reinjured in August 2016, both at work”. Reconstructive surgery had been delayed by significant poor and slow healing over a concurrent right ankle injury.
124.An ultrasound in August 2016 showed a 1cm tear, and ultrasound in April 2017 showed a 3cm tear.
125.On 24 November 2017, Dr Wong recorded that the applicant had seen Dr Rajesh and had a shoulder MRI, “not for surgery at present. Wait and see”. Dr Rajesh requested a referral to
Dr Leo Davies for ? nerve conduction study.
126.Also on 24 November 2017, Dr Wong referred the applicant to Dr Davies, neurologist. It appears that he was treated by Dr Candice Delcourt, in the same practice.
127.Dr Wong reported that the applicant had a long history with WorkCover. He initially had a right supraspinatus injury at work, and then because of his right shoulder pain, had an imbalance and fall, resulting in a Weber B fracture of the right lower fibula.
128.The fracture was internally fixated by Dr Rajesh, after which the applicant had significant trouble with foot swelling, discolouration, multiple skin abscesses and reduced sensation associated with swelling.
129.The plates/screws were removed by Dr Phoon in April 2017. The applicant continued to complain of symptoms. There was no longer any discolouration or significant swelling.
Dr Wong did not think there was any regional pain syndrome.
130.On 20 June 2018, the applicant complained of persistent left mid-femoral pain that was “driving him nuts”. Dr Wong referred him for a bone scan.
131.On 27 July 2018, Dr Wong recorded that the bone scan was normal. It was not likely he had bony pathology. “Neil” thought it (the femoral pain) was due to mechanical asymmetry from the ankle injury.
132.On 31 October 2018, Dr Wong recorded “renew certs *2 today”.
133.On 28 November 2018, Dr Wong recorded that the applicant had chronic pain in the left thigh, worse after activity, and residual right ankle and right shoulder pain.
134.Also on 28 November 2018, Dr Wong referred the applicant to Dr Rajesh for review of his left thigh pain. She noted he was on WorkCover for this, as the pain started only since his ankle injury and right shoulder injury “(WorkCover both)”.
135.On 14 December 2018, Dr Wong recorded that approval was pending for MRI of the thigh “? bursitis”.
136.On 22 May 2019, Dr Wong recorded that the applicant was struggling with loading weight onto his left thigh. He had poor sleep between shoulder and ankle pain.
137.On 5 June 2019, Dr Wong recorded that the applicant was feeling much improved, but still had night pain, “shoulder, left thigh – usual sites”.
138.On 10 July 2019, Dr Wong suggested an MRI of the applicant’s lumbar spine. He would like to get WorkCover to pay for it, so had not made the appointment yet. Dr Wong suggested it may not be WorkCover related. However, the applicant would like to try.
139.Also on10 July 2019, Dr Wong again referred the applicant to Dr Davies.
140.Dr Wong reported the history of supraspinatus tear in 2016, followed by traumatic fibular fracture of the right leg. This was followed by some post-operative complications. Since then, the applicant had two years of ongoing issues with pain, for which they would seek the advice of a pain clinic. He had recently had months of a new sensation, that is bilateral foot numbness.
141.Dr Wong also referred the applicant on 10 July 2019 to Dr Steven Faux at St Vincent’s Hospital for pain management.
142.Dr Wong reported that the applicant had a longstanding history post-injury in 2016. He had a supraspinatus tear at work, followed by a traumatic right fibular fracture. This was followed by post-operative complication, requiring removal of the plates/screws.
143.Since then, the applicant had had two years of ongoing issues with pain, including initial poor compliance with his analgesia regimen. He now had issues with bilateral forefoot numbness.
144.On 22 November 2019, Dr Wong referred the applicant to SERH for multidisciplinary management of his chronic pain syndrome, secondary to WorkCover related right ankle fracture and right shoulder supraspinatus tear, also WorkCover related.
145.On 15 April 2020, Dr Wong recorded “nil change to status”. The applicant had not had discussions with WorkCover, “is turning to legal avenues to try to get a payout. Wants to get off WorkCover”. His barriers were “chronic pain, mental health”.
146.On 27 May 2020, Dr Wong recorded that the applicant had “issues with legal people, insurance people. Frustrations”. He wanted to be totally and utterly [sic] incapacitated. She suggested he needed to see an independent assessor, as she believed he could do some work on some days.
147.Dr Wong reported to the applicant’s solicitors on 3 June 2020.
148.She had not been treating the applicant for lower back pain. She could see that he had a WorkCover claim involving the lower back in 2013. He had been seeing the local physiotherapist with regard to his lower back, lower limbs, and general physical exercises.
149.On 10 June 2020, Dr Wong recorded that the applicant was to see Dr Bodel for an independent specialist appointment. They discussed his back. He had a WorkCover injury in 2013 and was seen by another doctor there. They discussed that this was best reviewed by an independent specialist.
150.Dr Wong again reported to the applicant’s solicitors on 10 October 2020. She noted that she had previously treated Mr Broderick’s right ankle injury but was not currently his treating practitioner.
151.Dr Wong reported a history that the applicant sustained a right ankle fibular Weber B type fracture on 8 August 2016, when he slipped on the floor and caught his foot between the treads of two steps.
152.In relation to treatment, the applicant had surgery to address the fracture. He then had a graduated physiotherapy exercise program. Dr Wong prescribed analgesia, and treated various complications, including ongoing chronic pain, wound breakdown and infection, and peripheral neuropathy. The applicant consulted a neurologist and chronic pain specialists.
153.Dr Wong also extensively investigated the symptoms of chronic left femur pain that arose shortly after the fracture. (Emphasis in original). The pain was diagnosed as muscular and mechanical after MRI and bone scans showed no concerning pathology. The mechanical pain was put down by his physiotherapist to asymmetrical use of the body/legs post ankle injury, and currently diagnosed as central sensitisation by chronic pain specialist Dr Martine Holford.
154.The applicant first consulted Dr Wong regarding right shoulder pain on 15 April 2016, due to injuries at work. His condition was improving up to early August, when he sustained an exacerbation of the shoulder injury after repetitively loading pipes at work.
155.Dr Wong saw the applicant on 5 August 2016, when she organised an ultrasound that confirmed a 1cm rotator cuff tear. The applicant was placed on restricted duties for 10 days but sustained the right ankle fracture on 8 August 2016.
156.The treatment for the applicant’s shoulder was mainly physiotherapy and analgesia, until the ankle injury, after which the ankle problems and complications took precedence.
157.In March 2017, Dr Phoon confirmed that shoulder surgery for a confirmed tear would not be possible due to complications from the applicant’s ankle. The applicant also saw Dr Rajesh in June 2017. He ordered MRI and confirmed the Mr Broderick required ongoing physiotherapy.
158.Following the ankle fracture, the applicant used crutches to ambulate for some time. His shoulder pain and restricted range of movement were aggravated by the long duration of crutches use.
159.Dr Wong had not treated the applicant in relation to bilateral knee injuries. He mentioned to her during their most recent meeting in August 2022 that his knees had become “worse” over the past few years.
160.The applicant’s treating GP would be best placed to confirm the diagnosis of his knees, with supporting radiological evidence. However, Dr Wong believed he had osteoarthritis in both knees, a degenerative condition that can be aggravated and/or accelerated due to mechanical injury to any of the joints above or below.
161.In the applicant’s case, his extensive ankle injury was likely to have contributed toward knee arthritis. Firstly, through asymmetric loading pressures on the knees post ankle fracture; secondly, through altered gait; and thirdly, due to ongoing weight gain from poor exercise capacity following the fracture. The fracture was a long drawn-out process of slow/poor healing.

162.Dr Wong had not treated the applicant for lower back injuries. A CT scan and MRI of the lumbar spine were organised to exclude a lumbar cause for right foot loss of sensation/split foot feeling.
163.The scans showed lumbar degenerative disc disease. Dr Wong opined that the applicant’s right leg, knee and ankle pain, distal foot/leg neuropathy, weight gain and poor mobility had contributed to aggravation of lumbar degenerative disease.

Sapphire Coast Physiotherapy

164.On 5 July 2016, Mr Dmytryk reported to Dr Wong that the applicant continued to make good progress with his right shoulder injury.
165.On assessment that day, the applicant had normal shoulder mobility and minimal pain provoked by sub-acromial impingement tests. Mr Dmytryk supported him upgrading to pre-injury hours, duties, and loads.
166.Mr Dmytryk was to see the applicant in three weeks, when he anticipated he would be ready for discharge from physiotherapy.
167.On 18 October 2016, Mr Dmytryk reported to Allianz that the applicant had commenced treatment for his right ankle. He had just been cleared to start weight bearing after a prolonged period of immobilisation.
168.The applicant had a very stiff and swollen ankle and “really needs to get his ankle moving”. Mr Dmytryk sought approval for a three-month pool pass.
169.On 25 November 2016, Mr Dmytryk reported that the applicant was making slow progress with the recovery of his right ankle dislocation and fracture.
170.The applicant was using a single axilla crutch, partially weight bearing (50% to 60%) on the right. His ankle was lacking dorsiflexion.
171.Mr Dmytryk recorded mildly increased laxity of the medial collateral ligament and pain with stress testing of the right knee. He opined that the applicant had sprained the ligament, but this may not have been picked up on initial medical screening. He asked Drs Wong and Watterson to add this to the applicant’s certificate.
172.On 23 December 2016, Mr Dmytryk reported to Allianz that the applicant had been making slow but steady progress with his right ankle. He had progressed to full weight bearing through his right ankle and was using a walking stick.
173.On 4 July 2017, Mr Dmytryk recorded that the applicant fell downstairs at work on 8 August 2016, and caught his right foot between the steps. He had ORIF (open reduction and internal fixation) for Weber B fracture of the distal fibula, and calcaneus dislocation.
174.The applicant had seen Dr Rajesh for his right shoulder. Dr Rajesh thought he should pursue more physiotherapy for his shoulder and wanted him to have another MRI for the right ankle.
175.Mr Dmytryk recorded that the applicant was “FWB (full weight bearing) – nil aid, still lacking full DF (assumed to mean dorsiflexion)”. Dorsiflexion improved if the applicant really focused on his knee driving fully. He had a fair heel strike, toeing off fully. Mr Dmytryk continued to record this in subsequent consultations in 2017.
176.On 29 September 2017, Dr Wong requested approval for the applicant to undergo physiotherapy for a rotator cuff tendon tear, with secondary sub-acromial impingement. The date of injury was recorded as 13 April 2016.
177.On 23 May 2018, Mr Dmytryk recorded that the applicant had a mild antalgic gait pattern at times. He could correct it with prompting to use more ankle dorsiflexion. Mr Dmytryk continued to record this finding until 6 February 2019.
178.On 26 March 2019, Mr Dmytryk reported to the applicant’s solicitors.
179.Mr Dmytryk had recorded a consistent history of the injury on 8 August 2016.
180.At the initial consultation on 18 October 2016, Mr Dmytryk had recorded, inter alia, that the applicant was non-weight bearing, mobilising using two axillary crutches. Weight bearing, he was able to stand with the support of two crutches and partially weight bear through the right foot.
181.Mr Dmytryk’s diagnosis was recovering distal fibula fracture, ankle joint dislocation, and syndesmosis disruption.
182.Complications during the applicant’s recovery included psychological symptoms; severe skin infection; and irritation of a previous injury to his left thigh due to a long period of mobilising with an uneven amount of weight through his left leg.
183.At that stage, the applicant was able to walk up to 2 to 3km with no aid and over varying terrain. He was able to fully weight bear through the right foot/ankle, which decreased as walking distance or standing time increased due to pain in the right foot/ankle. The right foot and ankle pain was likely to cause the left thigh pain to continue, as the applicant had to place more weight through the left leg when the right foot/ankle pain increased.
184.On 9 April 2019, Mr Dmytryk again reported to the applicant’s solicitors, regarding the right shoulder injury.
185.Mr Dmytryk first saw the applicant for this injury on 10 May 2016. He recorded a consistent history of the injury. He diagnosed bursitis on the background of degenerative changes.
186.During his treatment, the applicant regained full right shoulder mobility into flexion, but still had pain when lowering from this position. His impingement tests were still positive. MRI on 21 April 2017 showed a full thickness tear of the supraspinatus muscle tendon.
187.On 1 May 2019, Mr Tye Sieger, who had assumed the applicant’s care, recorded that the applicant had a big weekend in Candelo, with a wake on Friday night. He was very sore all weekend and had not exercised in 4/7 (four days). He was limping heavily on his left leg.
188.On 11 November 2020, Mr Sieger provided a report. He referred the reader also to Mr Dmytryk’s reports.
189.Mr Sieger “confirm[ed]” that the applicant injured his shoulder at his workplace on
10 May 2016 [sic] and subsequently his ankle on 8 August 2016.
190.The applicant had previously complained of symptoms in his hip and lower back before
Mr Sieger took over his care. They had continued to bother him. The cause of most low back and hip pain is multifactorial. It was therefore difficult to definitively state whether the applicant’s work injury could be seen as a direct link. However, Mr Sieger opined that the significant deconditioning and change in lower limb mechanics since the lower limb injury would “play a major factor” in the development and persistence of these symptoms.
191.Mr Dmytryk reported to the applicant’s solicitors on 6 August 2022. He was responding to questions regarding the applicant’s right ankle and right shoulder injuries, “along with his bilateral knee injuries”.
192.The applicant’s initial consultation regarding his right ankle injury was on 18 October 2016. He described losing his footing whilst descending some stairs and catching his right foot. It was wrenched suddenly, with his whole body weight on it. He described immediate severe pain and dysfunction in his right ankle and knee.
193.Mr Dmytryk reported that the applicant described right medial knee pain on 18 October 2016. He described a strong traction and lateral to medial force being applied to the right knee during his fall. Mr Dmytryk opined that he likely suffered a Grade 1 medial collateral ligament sprain.
194.The applicant began reporting moderate left knee pain, which came on with prolonged weight bearing, in February 2018. It was attributed to overloading of the left knee through increased weight bearing load, along with altered gait due to the right knee and ankle injuries. He had received treatment to both knees.
195.Mr Dmytryk opined that the applicant’s right knee symptoms were the result of the ligament injury and consequential deconditioning and overloading of the right knee due to altered gait and weight bearing pattern. His left knee symptoms were the result of accelerated wear in the left knee due to increased weight bearing and altered gait.
196.Mr Dmytryk opined that chronic pain and significantly reduced mobility, strength and balance in the ankle joint could cause overloading and accelerated wear to the knees on the same side as the injury, and on the opposite side. It would also place increased load through the opposite hip and knee, as the person altered his gait and weight bearing pattern to avoid pain and compensate for the ankle dysfunction.
197.The applicant’s left and right knee pain and dysfunction were likely the result of the biomechanical adaptations that arose due to the chronic pain, significantly reduced mobility, and reduced strength and balance in his right ankle.
198.Mr Dmytryk concluded that the applicant’s right knee was injured in the fall on
8 August 2016. It was further aggravated and injured due to the biomechanical adaptations that were formed to compensate for his right ankle impairments. His left knee injury had likely arisen in response to overloading through increased weight bearing and altered gait due to right knee and ankle injuries.

Dr Krishnankutty Rajesh – orthopaedic surgeon

199.Dr Rajesh reported to Dr Wong on 27 October 2016.
200.Two months post-surgery, the applicant was healing well, but had been quite slow to rehabilitate. He was still on two crutches, as he was unable to put his foot flat on the ground, due to stiffness in his ankle.
201.Dr Rajesh suggested that the applicant continue with exercise to gain range of movement. Mr Broderick was to see him if there were ongoing issues, but otherwise he should be able to get back to work once range of movement and strength improved.
202.Dr Rajesh reported to Dr Wong on 30 June 2017.
203.Dr Rajesh noted that the applicant had pain with certain overhead movements of his right shoulder, and he felt it may be weak.
204.There had been some confusion in the scan reports, with the ultrasound showing a 1cm tear and the MRI showing a 3cm tear. Dr Rajesh opined that “this tear certainly does not look big to me”. The applicant had a small rotator cuff tear and acromioclavicular joint involvement, the combination of which caused pain.
205.Dr Rajesh did not think the applicant should “go for surgery” at that time, especially with a focus of infection in his right lower leg.
206.Dr Rajesh again reported to Dr Wong on 19 October 2017.
207.The applicant’s shoulder was not improving. He had had a few sessions of physiotherapy.
Dr Rajesh had requested repeat MRI to decide whether he would benefit from arthroscopy and rotator cuff repair.
208.On 15 November 2017, Dr Rajesh reported to Dr Wong that MRI showed a small insertional tear of the supraspinatus, with evidence of subacromial impingement.
209.Dr Rajesh had suggested that the applicant continue with physiotherapy, and he would review him in three months.
210.On 6 March 2018, Dr Rajesh reported to Dr Wong that the applicant was undergoing strengthening exercises and was quite happy with the improvement. He still had pain with overhead movements but found more and more of his daily activities were possible. He was to continue with his exercise program.
211.Dr Rajesh reported to Dr Wong on 10 December 2018.
212.The applicant had presented with pain in his left thigh, present for some time. He apparently had an injury many years ago but had never had a problem until he injured his right ankle and had to fully weight bear on his left leg. He did not think there were many major issues at the moment, and it was slowly improving.
213.The applicant walked with an antalgic gait. There was no obvious palpable swelling, possibly because this was under the fascia lata.
214.Dr Rajesh opined that it was possible there was a small bursa developing between the calcified area and the muscles, due to overactivity. He had arranged for an MRI.

On 21 January 2019, Dr Rajesh reported to Dr Wong, having reviewed the applicant with the results of the MR There was no evidence of any inflammatory or neoplastic processes, and no bursa. The applicant should continue with the exercise program.

Dr Christopher Phoon – orthopaedic surgeon

215.Dr Phoon reported to Dr Wong on 13 March 2017.
216.Dr Phoon recorded a history that the applicant had hurt his shoulder about 18 months ago, when he was loading a pipe onto a utility. He felt a pop and sharp pain. Ultrasound was unable to demonstrate an abnormality. The applicant had ongoing problems and further investigation was delayed when he had an ankle fracture.
217.Late in 2016, the applicant had a repeat ultrasound, and this time the radiologist was able to look at it as it was being performed. This demonstrated a full thickness tear. The applicant had a corticosteroid injection on 31 January (2017) but did not feel any significant benefit.
218.Dr Phoon opined that the applicant “undoubtedly” had a rotator cuff injury and should continue physiotherapy. He would not consider repair while the applicant still had skin loss on his ankle, and until a few months had passed since the injection.

Dr Robert Wotton - psychiatrist

219.Dr Wotton was qualified by Allianz and reported on 29 March 2017.
220.Dr Wotton recorded a history of the injury on 8 August 2016 and the applicant’s treatment.
221.The applicant began experiencing anxiety, which he attributed to pressure from his “provider” and the failure of the ankle swelling to subside. His occupational therapist thought he was ready to go back to work, but his leg was still swollen, and he didn’t feel ready. When he returned to work in early December (2016) he was still in pain and had significant swelling.
222.Dr Wotton recorded that the applicant felt his foot was “split”. He normally had no sensation in it but could get pain bursts. He was able to walk in the mornings and afternoons, 150m, for the last four days. His foot had seized up, and as a consequence he walked with a marked limp. That had led to further problems of alignment with his vertebral column and more pain.
223.The remainder of the report is not relevant to the issues to be determined.

Dr J Bodel – orthopaedic surgeon

224.Dr Bodel was qualified by the applicant and reported first on 13 June 2018. He recorded the dates of injury as September 2015 and 8 August 2016.
225.Dr Bodel summarised the applicant’s injuries as being to the right shoulder in September 2015, and a fracture of the right ankle on 8 August 2016.
226.The history recorded was that in September 2015, the applicant strained his right shoulder while pushing things onto the back of a utility. He was put onto lighter duties for a period but could not really do light work. He had medication and physiotherapy, and his symptoms settled but he never completely recovered.
227.In July 2016, the applicant was lifting pipes when he again strained his right shoulder. He went back to the local doctor and was not off work but had medication and physiotherapy.
228.The applicant had an injury to the right foot and ankle on 8 August 2016, when he tripped on some stairs.
229.Dr Bodel has recorded the history of the applicant’s treatment. He was in a plaster of Paris backslab for a few weeks and a cast for a total of four months. He then went into a boot for another week. His recovery was complicated by wound infection and eventually the plates and screws were removed.
230.The applicant complained of symptoms in his right ankle and foot. His ankle was unstable and gave way when he walked on uneven ground. It was still swelling. He had a catching sensation in the region of the right shoulder and a deep throbbing pain in that area.
231.Dr Bodel referred to the reports of the applicant’s investigations of his right shoulder, including ultrasound guided injection on 31 January 2017, and MRI of 21 April 2017 and
31 October 2017.
232.The reports of investigations of the applicant’s lower limbs included CT of his left femur; MRI of his right leg; X-rays of his right tibia and fibula; and CTs of his lower (right) leg.
233.Dr Bodel reported that the applicant initially injured his right shoulder. While on light duties, he tripped and fell down a set of stairs, causing a fracture dislocation of his right ankle. The diagnoses were a rotator cuff injury to the region of the right shoulder in September 2015 and injury to the right foot and ankle on 8 August 2016. The latter was a fracture of the fibula and a tear of the deltoid ligament on the medial side of the ankle, with a fracture dislocation of the ankle mortice.
234.Dr Bodel assessed WPI of 8% as a result of injury to the applicant’s right ankle, including 1% WPI for TEMSKI scarring. “In addition” there was the rating for his right shoulder, which
Dr Bodel assessed as 8% for the injury in September 2015. The assessment of 8% for the left [sic] lower extremity was for the injury that occurred on 8 August 2016.
235.Dr Bodel again reported on 18 September 2020, having reviewed the applicant.
236.Dr Bodel recorded that the applicant had two episodes of injury while employed by the respondent. The first was the shoulder injury in September 2015 and the second was an ankle injury on 8 August 2016.
237.The history of the applicant’s injuries and treatment noted by Dr Bodel was as before. There had been discussion about surgery on his shoulder, but it had not been done.
238.The applicant had developed continuing and increasing right foot and heel pain. He had been to a pain clinic and was prescribed medication. In the past, he had had a fracture of the left femur, and was left with a deep throbbing pain in that area for about two years, but it eventually settled.
239.Dr Bodel recorded complaints of pain in the region of the right ankle; that the applicant could not stand or walk, particularly on uneven ground, without aggravating his symptoms; and pain and stiffness in the region of the right shoulder.
240.Once again, Dr Bodel reported that the applicant suffered the injury to his right shoulder in September 2015 and the fracture of the right ankle on 8 August 2016. The diagnoses were rotator cuff injury to the region of the right shoulder and fracture of the fibula and tear of the deltoid ligament of the right ankle. No other consequential injuries had developed.
241.Dr Bodel’s assessments of WPI had not changed. The applicant had 8% WPI for the right upper extremity and 8% WPI for the right lower extremity, including 1% WPI for scarring.

Dr Martine Holford – pain medicine consultant

242.Dr Holford reported to Dr Wong on 8 November 2019.
243.Dr Holford noted that the applicant presented with multiple sites of pain, including the right ankle, secondary to fracture in 2016 (workplace injury); the left lateral aspect of the thigh; the right shoulder (pre-existing issue exacerbated by workplace injury); and bilateral foot pain.
244.The applicant provided a history of right ankle pain dating back to the injury in August 2016. He had low confidence in weight bearing through the foot and experienced mechanically exacerbated shooting and throbbing pain, both in the ankle and the sole of the foot and toes.
245.The applicant also had pain in the deep tissues of the left thigh. MRI of the lumbar spine had been performed to investigate the possibility of somatic-referred or radicular pattern pain.
246.The applicant reported persistent pain in the right shoulder, which was mechanical in nature. He had minor problems in this area prior to his workplace injury, but exacerbation as a result of the injury. An upper limb surgeon diagnosed a partial supraspinatus tear and offered surgical repair, without confidence that this would improve his pain or function.

247.Dr Holford noted that an ultrasound in August 2016 did not, in fact, demonstrate a tear. A subdeltoid bursa injection was trialled without benefit.

Dr GJ McGroder – consultant occupational health physician

248.Dr McGroder was qualified by the applicant and reported on 19 October 2020.
249.Dr McGroder recorded two dates of injury, September 2015 (shoulder) and 8 August 2016 (ankle).
250.Dr McGroder recorded a history that the applicant had some problems in his right shoulder in 2010 after lifting at work, and this resolved. In September 2015, he felt some right shoulder pain while lifting. He continued working and took anti-inflammatory medication.
251.In July 2016, the applicant was lifting some pipes when he felt a popping sensation in his right shoulder, and pain increased significantly. He saw his GP and was put onto selected duties.
252.On 8 August 2016, the applicant fell down some steps. He was unsure exactly what happened but appeared to have twisted his right ankle. There was severe pain and swelling, and he had difficulty moving.
253.Dr McGroder recorded the history of the applicant’s treatment. He had physiotherapy involving his shoulder and leg. He found the crutches aggravated his shoulder. Investigations of the shoulder demonstrated a rotator cuff tear. Surgery was discussed but decided against.
254.Dr McGroder recorded the applicant’s complaints regarding his right shoulder and right ankle. The applicant said the old fracture of his left femur throbbed all the time.
255.Dr McGroder opined that during the course of his employment with the respondent, the applicant sustained injuries to his right shoulder and his right ankle. The diagnosis of his right shoulder was torn rotator cuff and impingement; and of his right ankle, significant fracture dislocation, which underwent open reduction and internal fixation, with ongoing pain, swelling, and restriction of range of movement.
256.The conditions outlined were “directly a result of the accidents sustained during” the applicant’s employment.
257.Dr McGroder assessed 7% WPI as a result of injury to the applicant’s right upper extremity (shoulder) with date of injury September 2015; and 6% WPI as a result of injury to his right lower extremity and TEMSKI scarring, with date of injury 8 August 2016.

Dr Matthew M Giblin – orthopaedic surgeon

258.Dr Giblin was qualified by the applicant. As is apparent from the correspondence between the parties’ solicitors, his reports are at times confusing.
259.Dr Giblin has provided five reports dated 30 November 2020. In none of these reports does he record a history of the injury to the applicant’s right shoulder on 13 April 2016.
260.The first report in the Application includes the heading “Date of Injury: 8 August 2016”.
261.Dr Giblin recorded a history that on 8 August 2016, the applicant slipped over some steps, sustaining a fracture/dislocation to his right ankle, being a Weber type injury. After surgery and some three and a half weeks in hospital, he was discharged in a backslab and crutches.
262.The applicant was readmitted to hospital with an infection in January 2017, and the plates and screws were removed. He was discharged after two and half weeks.
263.Due to the ongoing problems with his ankle, such as swelling and pain, the applicant had a persistent limp and required crutches for at least six weeks. Even to date, he required a supportive device such as a walking stick.
264.Due to the altered mechanics of his gait, and the way the applicant had been getting around, he had aggravated a longstanding back problem; developed pain in both knees; and aggravated pre-existing right shoulder problems and a pre-existing asymptomatic left femur condition.
265.The applicant complained of right shoulder pain, low back pain, left thigh pain, bilateral knee pain, right ankle pain, and numbness in both feet.
266.Dr Giblin recorded that the applicant had a pre-existing right shoulder problem. This was 4/10 prior to the injury and since the injury, and due to the use of crutches, walking sticks “etc”, it had increased to 8/10. He had a sporting injury to his left thigh many years ago and was alleged to have had some calcification in the muscle. Due to the limp and awkward gait, it had become sore. He had never had any pre-existing problems with his knees. He had always had some intermittent problems with his low back. He put it at 6/10, and now put it at 7/10. There was no pre-existing problem with his right ankle.
267.Dr Giblin opined that the applicant’s injuries were consistent with the accident described. Since that time, he had had persistent pain and problems with his ankle.
268.Due to the use of crutches and walking stick, the applicant developed an aggravation of a pre-existing right shoulder problem, by 50%. He had aggravated a pre-existing symptomatic condition of his lumbar spine by approximately 15%. He had an aggravation of a pre-existing asymptomatic condition of his left thigh. He had developed symptoms in both knees, due to his abnormal gait. He had not had MRI, but it seemed this was most likely due to chondromalacia patellae. Without MRI it was difficult to be more precise.
269.In his second report in the Application that is dated 30 November 2020, Dr Giblin apportioned one half of the WPI with respect to the applicant’s right shoulder to the pre-existing condition and nature and conditions of employment, and one half to the injury of 2016 (assumed to be the right ankle injury) and the constant use of crutches that followed.
270.Dr Giblin’s third report in the Application dated 30 November 2020 is headed “Date of Injury: Nature & Conditions”.
271.In this report, Dr Giblin recorded a history that the applicant developed pain in his right shoulder in 2014 while working above shoulder level, lifting a pipe. He felt a “pop”, saw his doctor, had physiotherapy, and was on light duties for a month.
272.The applicant’s shoulder continued to “niggle him over the ensuing years”, with a further injury in 2015, again with work above shoulder level. He then fractured his ankle in 2016 and had to use crutches. Since then, his shoulder had become a particular problem.
273.Dr Giblin recorded that the applicant was treated by Drs Rajesh and Phoon, with ongoing conservative management.
274.Dr Giblin opined that the applicant had right rotator cuff disease, due to the accident of 2014, the nature and conditions of employment, and aggravation associated with the use of crutches.
275.In his fourth report, Dr Giblin assessed the applicant’s WPI as 6% due to injury to the right upper limb. He recorded the date of injury as “Nature & Conditions 2014/2015”.
276.In his fifth report, Dr Giblin opined that the applicant had not reached maximum medical improvement , as there was discussion of surgery for his right shoulder, knees, and right ankle.
277.If impairment were assessed at that point, the applicant had 6% WPI as a result of injury to his right shoulder (nature and conditions 2014/2015); 0% WPI as a result of injury to his lumbar spine (nature and conditions); 0% WPI as a result of injury to his left thigh (nature and conditions); 2% WPI as a result of injury to his right knee (nature and conditions); 2% WPI as a result of injury to his left knee (nature and conditions); 6% WPI as a result of injury to his right ankle (8 August 2016); and 2% for scarring (8 August 2016). The total WPI was 18%.
278.Dr Giblin again reported on 23 August 2021. He referred to correspondence from the respondent’s solicitors, assumed to be their letter dated 11 August 2021.
279.Dr Giblin advised that the applicant’s right shoulder, when assessed for “both injuries” was 6%. One half was due to the injury of 2014/2015, and one half to the injury of 2016. He therefore considered that the applicant had 3% WPI due to the “nature and conditions of the injury of 2014/2015” and 3% WPI due to the aggravation of an underlying pre-existing condition due to the injury on 8 August 2016.
280.The reference date for the injuries to both knees should be 8 August 2016, and the injury to the right ankle alone, dated 8 August 2016, was 8%.
281.The respondent’s solicitors had indicated that Dr Giblin had assessed WPI at 8%. This was incorrect, as it only involved the ankle, and did not include the right shoulder, lumbar spine (which he had assessed as 0% in any event) and left and right knees.
282.The respondent’s solicitors had also indicated there was a claim for [injury to] the right shoulder as a result of lifting pipes on 13 April 2016. Dr Giblin had no history of that claim or injury. He had reduced the assessment of the right shoulder to 3% WPI. The total WPI was therefore 15%.
283.Dr Giblin again reported on 24 March 2022. He referred to correspondence from the applicant’s solicitors dated 16 March 2020, which is not in evidence, and the applicant’s statement.
284.Dr Giblin noted an ultrasound of the applicant’s right shoulder dated 27 April 2016 showed no partial or full thickness tears. In November (2016), an ultrasound showed a small full thickness supraspinatus tendon tear.
285.Dr Giblin opined that, at best, it is hard to rely on ultrasounds for a definitive diagnosis, and obviously MRI is always best. He noted that on 21 April 2017, MRI showed the tear, which tended to confirm the ultrasound finding of 28 November 2016.
286.Considering the history, Dr Giblin considered that the applicant developed rotator cuff disease in 2014. He had a further injury in 2016 and may have created a further tear in the tendon, as evidenced by the “pop” in his right shoulder and then sharp pains. After that, his shoulder felt weak, and he felt he had done it further injury.
287.The applicant then had a further accident on 8 August 2016, when he injured his ankle. He also gave a history that when he fell, he injured his right shoulder, but it was only when he started to come off medication and use crutches that his shoulder became more of an issue.
288.It was very difficult to proportion [sic] percentage disabilities to the workplace injuries of 2015 and 2016, and the fall and aggravation sustained by the use of crutches.
289.Dr Giblin now apportioned one quarter (2%) of the applicant’s WPI to the injury of 2014; and three quarters (4%) to the second fall and use of crutches.

Dr Tim Ho – pain medicine and rehabilitation medicine physician

290.Dr Ho was also qualified by the applicant and reported first on 5 January 2021. He has recorded the dates of injury as September 2015 (shoulder) and 8 August 2016 (ankle).
291.Dr Ho recorded a history that the applicant’s injury occurred on 8 August 2016 due to a fall. He sustained multiple injuries, including fracture of the right ankle, right shoulder tear, nerve injury, chronic pain, and lumbar discopathy.
292.The applicant told Dr Ho that the initial right shoulder injury occurred in September 2015, and he never fully recovered. In July 2016, he further strained his right shoulder lifting pipes.
293.On 8 August 2016, the applicant tripped downstairs and felt a snap in his right ankle. He underwent surgery and had a backslab for a few weeks and a boot for another few weeks. His recovery was complicated by wound infection that required the removal of the screws and plates.
294.The applicant stated that he had developed chronic persistent pain since his injuries. He described pain over his right shoulder, lower back, bilateral knees, and right ankle.
295.Dr Ho opined that the applicant had chronic pain in the right ankle, right shoulder, and lower back on the background of injuries in 2015 and 2016 (index events).
296.Dr Ho diagnosed:
(a)    chronic nociplastic right shoulder pain secondary to central sensitisation, triggered by rotator cuff tear due to the workplace injury;
(b)    chronic nociplastic right ankle pain due to central sensitisation, triggered by right ankle fracture;
(c)    chronic nociplastic lower back pain due to central sensitisation, triggered by kinetic chain disorder due to altered gait, and
(d)    cortical augmentation with maladaptive coping with catastrophisation [sic] and poor self-efficacy.

297.Dr Ho opined that the diagnoses were caused by the index events, further perpetuated by central sensitisation/functional somatic pain syndrome and cortical augmentation.
298.Dr Ho assessed 7% WPI as a result of injury to the applicant’s right upper extremity, 4% WPI as a result of injury to his right lower extremity, and 7% WPI as a result of injury to his lumbar spine, a total of 17% WPI.
SUBMISSIONS
299.The parties’ submissions have been recorded, so I will not refer to them in detail.

Applicant

300.The applicant referred to the authorities on “consequential loss”, including Moon v Conmah Pty Limited,[2]Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan,[3] and Seif v Secretary, Department of Family and Community Services.[4]
[2] [2009] NSWWCCPD 134 (Moon).
[3] [2016] NSWWCCPD 23 (Brennan).
[4] [2020] NSWWCCPD 6 (Seif).
301.The applicant submitted that there is a question of whether his right shoulder symptoms and the symptoms and condition in his knees result from the injury. He referred to his evidence about his extended recovery, use of crutches and a walking stick, altered gait, and limp. He was not able to put weight on his right foot for some time.
302.The applicant submitted that he avoided placing weight on his right leg, placing more weight on his left. He started to feel symptoms in his left knee first, and then in his right knee.
303.As regards his right shoulder, the applicant submitted that he had a pre-existing injury in
April 2016. He was able to work through it with physiotherapy and continue to work. He hurt his right shoulder when he hit the ground. The claim is not drafted in that way, but as a consequential condition.
304.The applicant conceded that there is not much evidence of complaints about the right shoulder at the time. His whole focus was his right ankle, with very significant sequelae that continued for some time.
305.The applicant submitted that Dr Giblin had assessed a consequential condition of his right shoulder. He referred to his evidence about the use of crutches, and that he had complained about his shoulder to his treating doctors, who preferred to focus on treating his right ankle.
306.The applicant submitted that the use of crutches made a material contribution to the pain and tear of his rotator cuff, but he does not need to obtain a diagnosis or show pathological change. There is no reason not to accept his evidence about this.
307.The applicant referred to the evidence of Drs Rajesh and Wong, which he submitted supported the extended use of crutches. He was not getting better. There was an increase in symptoms and significant pain. I would be satisfied on the balance of probabilities that there was an increase in symptoms such that he could not use the right crutch.
308.The applicant referred to Dr Wong’s evidence on causation. She said he suffered a further injury to the same shoulder in August 2016. She did not say this resulted from the use of crutches, but she said his shoulder was not improving because he was using it to support his ankle.
309.The applicant submitted that Dr Wong’s evidence is sufficient to establish an aggravation of whatever right shoulder condition he had before the fall. This is sufficient to satisfy Moon, Kumar v Royal Comfort Bedding Pty Ltd,[5] Moriarty-Baes v Office Works Superstores Pty Ltd,[6] and Seif.
[5] [2012] NSWWCCPD 8.
[6] [2015] NSWWCCPD 28.
310.The applicant submitted that Dr Giblin’s evidence “ticks all the boxes”. A lot was made of his failure to refer to the April 2016 injury and the August presentation to Dr Wong, but this does not matter when he referred to a pre-existing condition. This is a consequential condition. The “common sense causal connection” is a relatively low bar. He submitted that, even with the deficiencies in his evidence, I would accept what he said about the mechanism of injury and its consequences.
311.The applicant conceded that Dr Giblin having resiled from “nature and conditions” was confusing but submitted that what was consistent was the mechanism of injury and the contribution of the use of crutches. He submitted the only question before me is whether his current condition was materially contributed to by the right ankle injury, the use of crutches and/or walking stick.
312.The applicant submitted that Dr Bodel’s report was prepared for the common law proceedings. I can take from his reports that there was an extended period of immobilisation and there was an aggravation of his pre-existing shoulder condition. Dr Bodel has not provided an opinion on causation, other than that the applicant had a pre-existing condition, which he related to the September 2015 injury. He submitted this does not take me much further.
313.The applicant submitted that this does not matter, as I have enough evidence from Dr Giblin, Dr Wong, and Dr Rajesh in respect of the claim for consequential condition of the right shoulder.
314.As regards the claim for consequential condition of his knees, the applicant referred to his evidence of favouring his right leg, limp, and altered gait. He had never had pain in his knees before, and his GP and Dr Rajesh had suggested he may need surgery. He submitted I could accept he had significant ongoing problems with his right leg, and it can be seen that his left leg gave him issues first, as he was protecting his right ankle and leg.
315.The applicant submitted that his physiotherapist recorded complaints of right knee pain in his initial session. It should not trouble me whether the initial strain might have occurred in the incident, or due to weight bearing “etc”. He complained about his right knee on
18 October 2016, and when he started to use his right leg, there was increased pain and symptoms in his right knee.
316.The applicant conceded that it might be said that this evidence comes from the physiotherapist, rather than the orthopaedic specialist or GP, but he was very well placed to give an opinion. He dealt with biomechanical adaptation, the rehabilitation of injuries, and how the body compensates.
317.The applicant submitted I would give significant weight to the evidence of the physiotherapist. He had an intimate knowledge of how his body had to deal with the ankle injury, which was not a normal injury. Dr Wong’s evidence about his knees is consistent with what the physiotherapist said.
318.The applicant referred to other refences to his knees and antalgic gait, including the report of Dr Martine Holford dated 8 November 2019 and her clinical notes. He has support from
Dr Giblin, as well as the physiotherapist and Dr Wong.
319.In reply to the respondent, the applicant submitted that I would not make a determination based on what is pleaded in the SOC, to which amendments can be made. It was filed in 2019, and there is no information as to whether it is intended to amend it.
320.As regards the submission that there is no reference to treatment for his knees, the applicant submitted that he was referred for X-ray of his right knee and had physiotherapy for both knees. The respondent’s submission is unsustainable, as he had physiotherapy from October 2016.
321.The applicant referred to the evidence of Drs Bodel and McGroder, and submitted I have to balance all the evidence and give it weight and will prefer some over other. Dr Bodel’s opinion was largely based on the history. There is no history of the use of crutches, antalgic gait, or limp. There is a plethora of evidence about this. Dr Bodel did not ask any questions about the mechanism of injury. His opinion that there were no consequential conditions was expressed in a vacuum. The same goes for Dr McGroder.

322.The respondent had submitted that the injury “could have” resulted in consequential conditions. The applicant submitted there is sufficient evidence from people with expertise, that is Dr Wong, the physiotherapist, and Dr Giblin, to unambiguously establish causation.

Respondent

323.The respondent submitted that the evidence does not support that the injury to the applicant’s right ankle resulted in any consequential injuries, and there should be an award in its favour.
324.The respondent submitted there is no dispute that the injury could have resulted in consequential conditions, but it didn’t.
325.The best evidence is that of Drs Bodel and McGroder. Dr Bodel considered the contemporary evidence. He diagnosed two separate injuries and assessed separate WPI. There was no suggestion that the right shoulder was consequential, and no reference to the knees. His opinion that no consequential injuries had developed could not be clearer.
326.Dr McGroder took a similar approach. The history he took was also consistent with the contemporary evidence. He did not diagnose the lumbar spine or either knee. He and
Dr Bodel are experienced medico-legal assessors. The respondent submitted I would prefer their evidence to that of Dr Giblin.
327.The respondent submitted that Dr Giblin saw the applicant only once. It is clear there was general confusion. Attempts to clarify his opinion increased the confusion. In providing his assessment, he only related the right ankle to the injury on 8 August 2016.
328.The respondent submitted that the clinical records refer on 5 August 2016 to a recurrence of the shoulder injury. In the entries between then and February 2017, there is nothing that refers to the ankle injury resulting in increased symptoms in the shoulders or knee injuries. There is no record of treatment for the knees, and no reference until March 2020 to the knees or the back.
329.The respondent submitted there are very clear statements from Drs Bodel and McGroder, consistent with the contemporary evidence, that I would prefer over the confusing evidence of Dr Giblin. He had conceded he wasn’t aware of the right shoulder injury.
330.The respondent referred to the SOC, in which the applicant alleged only the right ankle injury, although there is reference to the back. There is no reference to the shoulder or knees in either the SOC or the Amended Statement of Particulars.
SUMMARY
331.Although the applicant has stated that he sustained an aggravation of the injury to his right shoulder when he fell on 8 August 2016, and he also injured his knee (assumed to be the right knee) and back, no claim is made in this Application for a frank injury to other than his right ankle.
332.The applicant claims to have sustained consequential conditions of his right shoulder, right knee, and left knee as a result of the injury to his right ankle.
333.The applicant is not required to establish that he has sustained injury, pursuant to s 4 of the 1987 Act, to succeed in his claim.
334.In Brennan, Deputy President Snell referred to the decision in Kooragang Cement Pty Ltd v Bates.[7] In that matter, President Kirby, as he then was, said at [461G]:
[7] (1994) 35 NSWLR 452.
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”

335.After referring to English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

336.The determination of the dispute has been made difficult by the plethora of conflicting independent medical evidence, as well as the sometimes inconsistent evidence of Dr Wong. For example, she recorded in her referral to Dr Davies that the pain in the applicant’s right shoulder caused imbalance and the fall on 8 August 2016, a mechanism of injury on which he has never sought to rely.
337.Notwithstanding this, I have found assistance in this matter from the treating medical evidence.
338.It is clear from both the evidence of the applicant and that of his treating practitioner that his progress after the injury on 8 August 2016 was, to say the least, difficult.
339.The applicant contracted infection after the first surgery, ultimately resulting in the removal of the plates and screws. He had virtually lost mobility in his right leg by January 2017.
340.After the fall, the applicant had bruising under his arms from using crutches. After two to three weeks of using crutches, the pain in his right shoulder had increased significantly. His evidence is that he complained to his treating doctors, but they noted he could limit the use of his shoulder, and they preferred to focus on his ankle.
341.The applicant used crutches for about six months after the first surgery. As a result of the pain in his right shoulder, he started using only the left crutch.
342.The applicant stated that he developed an altered gait as a result of the injury to his ankle and had not walked the same since it occurred. He noticed pain in his left knee when he started to engage more heavily in physiotherapy, and about two to three months after, began to experience increasing right knee pain. Dr Rajesh noted his antalgic gait in
December 2018.
343.As regards the medical evidence, I do not place a great deal of significance on whether or not the applicant had a rotator cuff tear before the injury on 8 August 2016, or whether, if he did have a tear, it was larger after the injury.
344.The applicant is not required to establish the development of pathology, or an increase in pathology, to succeed in a claim for consequential condition. As Deputy President Roche said in Moon at [45]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions to his left shoulder have resulted from his right shoulder injury…”

345.The respondent has submitted that there was nothing in Dr Wong’s clinical records between 5 August 2016 (when they referred to a recurrence of the right shoulder injury) and
February 2017 that referred to the ankle injury resulting in increased shoulder symptoms or knee injuries.
346.However, when she reported to Allianz on 15 February 2017, Dr Wong opined that the applicant’s shoulder had not been improving because he needed to use it to support his ankle. He required the use of both upper limbs to safely use crutches and maintain some domestic independence.
347.Dr Wong reported to the applicant’s solicitors on 10 October 2020 that the treatment for the applicant’s right shoulder injury in August 2016, before the ankle injury, was mainly physiotherapy and analgesia, after which his ankle problems took precedence.
348.Dr Wong opined that the applicant’s shoulder pain and restricted range of movement were aggravated by the long duration of use of crutches after the fracture of his ankle.
349.As regards the condition of the applicant’s knees, Dr Wong had not treated him. She “believed” he had osteoarthritis, that could be aggravated and/or accelerated due to mechanical injury to a joint above or below.
350.Dr Wong further opined that the applicant’s ankle injury was likely to have contributed to knee arthritis. This was due to asymmetric loading pressures; altered gait; and weight gain. She referred to the long drawn-out process of slow/poor healing of the applicant’s ankle.
351.The applicant finds further support from Mr Dmytryk and Mr Sieger. I accept his submission that the physiotherapists are well qualified to comment on altered biomechanics.
352.When Mr Dmytryk assessed the applicant on 5 July 2016, he recorded that Mr Broderick had made good progress. He had minimal symptoms, and Mr Dmytryk supported his return to work with no restrictions.
353.As regards the applicant’s right knee, Mr Dmytryk opined on 25 November 2016 that he had sprained the ligament, which may not have been picked up on initial screening. The applicant does not seek to make a case that he injured his right knee in the fall.
354.Mr Dmytryk recorded a mild antalgic gait between May 2018 and February 2019.
355.Mr Dmytryk provided a comprehensive report on 6 August 2022. He reported that on
18 October 2016, the applicant complained about both his right ankle and right knee.
356.The applicant began reporting moderate left knee pain in February 2018. It was attributed to overloading and altered gait. The applicant had received treatment to both knees.
357.Mr Dmytryk attributed the applicant’s right knee symptoms to both a ligament injury and deconditioning and overloading due to altered gait and weight bearing pattern. His left knee symptoms were due to accelerated wear due to increased weight bearing and altered gait.
358.Mr Dmytryk opined that chronic pain and reduced mobility, strength and balance in the ankle joint could cause accelerated wear to the knees.
359.In Mr Dmytryk’s opinion, the applicant’s left and right knee pain and dysfunction were likely to be the result of biomechanical adaptations due to chronic pain, and reduced mobility, strength and balance in his right ankle.
360.Although Mr Dmytryk opined that the applicant injured his right knee in the fall, he also opined that Mr Broderick’s right knee was aggravated by the biomechanical adaptations to compensate for his right ankle impairments. His left knee injury had likely arisen in response to overloading through increased weight bearing and altered gait due to right knee and ankle injuries.
361.While Dr Giblin’s reports certainly demonstrate a degree of confusion, he did obtain a detailed history of the applicant’s post-operative course, including a persistent limp, and prolonged use of crutches and a walking stick. Neither Dr Bodel nor Dr McGroder recorded such a detailed history.
362.Dr Giblin took into account the pre-existing condition of the applicant’s right shoulder, but also confirmed that he had a consequential condition of his right shoulder, as well as of each knee.
363.The fact that Dr Bodel opined that no consequential conditions had developed does not mean that is the case. When all the evidence is considered, I am satisfied that his opinion is incorrect.
364.I do not find the fact that the pleadings in the District Court matter do not refer to consequential conditions of the applicant’s right shoulder or either knee to be persuasive evidence that he does not have these conditions. The pleadings are over three years old. I do not know why the claim has been pleaded in this way, or whether there are plans to amend it, and it is not for me to speculate on the reasons.
365.Considering the evidence of the applicant, Drs Wong and Giblin, and Mr Dmytryk and
Mr Sieger, I am satisfied that the applicant has sustained consequential conditions of his right shoulder, right knee, and left knee as a result of the injury to his right ankle on
8 August 2016, and I so determine.
366.The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 160

13 April 2023