Davis v Invocare Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Davis v Invocare Australia Pty Ltd [2022] NSWPIC 629
APPLICANT:	Catherine-Gai Davis
RESPONDENT:	Invocare Australia Pty Ltd
Member:	Jane Peacock
DATE OF DECISION:	10 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Undisputed back injury; claim for consequential bilateral hip condition disputed; it is not necessary to succeed in respect of the consequential condition in the bilateral hips alleged here to establish “injury” within the meaning of section 4 of the Workers Compensation Act 1987; the symptoms and restrictions in her bilateral hips have resulted from her lumbar spine injury; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held – evidence weighed in the balance and it was determined on the balance of probabilities that the consequential condition in bilateral hips resulted from the back injury; award for the applicant.
determinations made:	1. The matter is remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine, digestive system, scarring (TEMSKI), right lower extremity and left lower extremity as a result of injury on 31 August 2016. 2. The documents to be forwarded to the MA are those admitted by consent as follows: (a) Application to Resolve a Dispute and attached documents. (b) Late documents filed by the applicant 26 September 2022, (c) Reply and all documents attached, (d) Late documents filed by the respondent 27 September 2022.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), the applicant, Ms Catherine-Gai Davis (Ms Davis) seeks lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to her lumbar spine on 31 August 2016. She also seeks lump sum compensation as a result of consequential conditions in her digestive system and in respect of scarring and alleged consequential conditions in the bilateral hips as a result of injury to her lumbar spine on 31 August 2016.
The respondent is Invocare Australia Pty Ltd (Invocare). Invocare was insured at the relevant time for the purposes of workers compensation by (the insurer).
Invocare denied liability for the claim resulting from the alleged consequential conditions in the bilateral hips.

ISSUES FOR DETERMINATION

Ms Davis brings a claim for lump sum compensation as a result of injury to her lumbar spine, digestive system, lower extremities (bilateral hips) and scarring on 31 August 2016.
Injury to the lumbar spine and consequential conditions in the digestive system and scarring are not disputed.
In addition, Ms Davis brings a claim for lump sum compensation as a result of a consequential conditions in her bilateral hips that she alleges she suffers from as a result of the injury to her lumbar spine on 31 August 2016.
The dispute before me therefore is whether Ms Davis has suffered consequential conditions in her bilateral hips as a result of the lumbar spine on 31 August 2016.
Invocare seeks an award for the respondent in respect of the allegation of consequential conditions in the left and right hips.
In the event there is an award for the respondent in respect of the hips, it is agreed that the matter will be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine, digestive system, and scarring (TEMSKI) as a result of injury on 31 August 2016.
In the event there is a finding in favour of Ms Davis in respect of the bilateral hips, it is agreed that the remittal for referral to a MA will include the lower extremities.
The documents to be forwarded to the MA are agreed to be the documents admitted into evidence in these proceedings.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission by consent and considered in making this determination:
For Ms Davis
(a)    Application to Resolve a Dispute and all attached documents
(b)    late documents filed 26 September 2022, and it is noted that there is an amendment by consent in respect of a typographical error in Ms Davis’ further statement where she refers to a drug called “mobic” it should read “movocol”
For Invocare
(a)    Reply and all documents
(b)    late documents filed 27 September 2022

Oral evidence

Ms Davis did not seek leave to adduce oral evidence and counsel for did not seek to cross-examine Ms Davis.

FINDINGS AND REASONS

It is not disputed that Ms Davis suffered an injury at work to her lumber spine on 31 August 2016. Consequential conditions in the digestive system and scarring are conceded.
Ms Davis alleges that she suffers from a consequential condition in both hips as a result of the undisputed lumbar spine injury on 31 August 2016.
Invocare disputes that the bilateral hip condition is consequential upon Ms Davis’ undisputed lumbar spine injury.
Invocare concedes, on the evidence, the presence of an altered gait.
The law dealing with consequential conditions is clear. It is not necessary for Ms Davis to establish that the consequential condition in her bilateral hips is an “injury” (including “injury” based on the disease provisions) within the meaning of section 4 of the Workers Compensation Act 1987 (the 1987 Act). This means that section 9A also does not apply here. That is, Ms Davis does not have to establish that her employment was a substantial contributing factor to the consequential condition alleged in her bilateral hips. The disease provisions do not apply such that Ms Davis does not have to establish that her employment was the main contributing factor to the aggravation of any pre-existing disease in her bilateral hips. It is well settled that, as it is a consequential condition in her bilateral hips that is being alleged, all Ms Davis has to establish is that the symptoms and restrictions in her bilateral hips have resulted from lumbar spine injury.
Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) provided a useful summary of the case law dealing with consequential conditions as follows:
“100. There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
‘44.The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
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 in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an “injury” to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46.The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).’
102. In Kumar, one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a ‘work related injury’ to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. Roche DP at [57] said of the evidence of that medical witness:
‘Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for “consequential loss” in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.’”
Deputy President Snell went onto apply the above to the case before him:
“103. Did Dr Wilcox’s report suffer from such a fundamental flaw? If so, the Senior Arbitrator was justified in rejecting the report (consistent with the approach in Kumar).
104.   The respondent submitted that the opinion of Dr Wilcox going to the consequential conditions was ‘tainted’ by his views on the presence and causation of muscle tension dysphonia.
105.   The proceedings were conducted on the basis that the respondent suffered from the condition of muscle tension dysphonia, this being a compensable injury deemed to have occurred on 4 April 2011. What was in issue was whether there were consequential conditions involving the neck and shoulders, which resulted from the conceded injury of muscle tension dysphonia.
106.   For reasons discussed above, I have (at [81]) formed the view that, on a fair reading of his report, Dr Wilcox did not accept the appropriateness of the diagnosis of muscle tension dysphonia or the fact that it resulted from employment. There are passages where the doctor pursues an argument to this effect.
107. There are passages of the report (see that quoted at [97] above for example) where Dr Wilcox excluded muscle tension dysphonia from his expressed views on causation. However, consistent with the discussion above going to the First Argument put in support of Ground 1, there are other passages where the doctor argues to the contrary.
108.   The passages of Dr Wilcox’s opinion quoted at [97] and [98] above are consistent with his report involving the same flaw as that which affected the opinion of the medicolegal expert in Kumar. The issue before the Senior Arbitrator was not whether the respondent suffered injury to the neck and shoulders caused by overusing her voice in February/March 2011, under the ‘disease’ provisions or otherwise. It was not necessary, for the respondent to succeed on the consequential conditions, that she establish ‘injury’ to these parts within the meaning of s 4 of the 1987 Act.
109.   The weight to be afforded to the opinion of Dr Wilcox was dependant, amongst other things, on its relevance to the issue between the parties. That issue was whether, accepting the conceded compensable injury of muscle tension dysphonia, the alleged consequential conditions resulted from that injury.
110.   The views of Dr Wilcox were ‘fundamentally flawed’, to appropriate the language in Kumar. It follows that the Senior Arbitrator was correct to reject the opinion of Dr Wilcox.”
That is, it is well settled that it is not necessary for Ms Davis to succeed in respect of the consequential condition in her bilateral hips that she alleges here, to establish “injury” to her her bilateral hips within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her bilateral hips have resulted from her lumbar spine injury.
Accordingly, the question for determination is whether Ms Davis suffered a consequential condition in her bilateral hips as a result of the injury to her lumbar spine on 31 August 2016.
The determination must be made on the evidence and in accordance with the law.
Turning then to an examination of the evidence in this case.
Ms Davis gave evidence in statements dated 23 June 2022 and 26 September 2022.
In her statement dated 23 June 2022 Ms Davis describes the circumstances of injury to her lumbar spine on 31 August 2016 when she was lifting a deceased person on a stretcher and the wheel buckled causing her to suffer injury to her lumbar spine. This injury is not disputed and the insurer paid for various treatment expenses including the insertion of a permanent spinal cord stimulator in August 2020 in view of Ms Davis’ persistent lumbar spine symptoms which are well documented in the evidence before me.
Ms Davis went onto give evidence in her statement dated 23 June 2022 about her bilateral hips as follows:
“17. Since my back injury, over time I also started to experience problems in my right and left hips along with pain and discomfit down my right leg.”
Ms Davis gave evidence in a further statement dated 26 September 2022 but that statement concerns digestive issues only and is no further evidence given about her hip problems in that statement.
Counsel for Invocare submitted that this is the only reference to the hips in the statement evidence and that her statement evidence is silent on when the symptoms developed, how they relate to the lumbar spine injury and is vague and insufficient.
There is no evidence that Ms Davis had been troubled by hip pain prior to her lumbar spine injury.
It is conceded by Invocare that the evidence shows the presence of an altered gait. There is no suggestion that, or support in the evidence for, the presence of the altered gait being as the result of anything other than the lumbar spine injury.
The treatment evidence shows that Ms Davis was being treated for chronic back pain and radicular pain more pronounced on the right side as a result of the lumbar spine injury. She saw Dr Paul Ferris for pain management who in his report of 14 January 2019 noted she tends to stand with weight on her left leg and has an antalgic gait with short stance phase on her right leg. This alteration in gait is conceded by Invocare. The alteration in Ms Davis’ gait is noted on examination by both Independent Medical Experts (IME) qualified on behalf of the parties, Dr Gurgis qualified on behalf of Ms Davis and Dr Cadden qualified on behalf of Invocare. There is no suggestion in any of the evidence before me including the opinions of both IMEs that Ms Davis does not suffer the persistent symptoms of pain and limitation on movement that she reports to them as a result of her lumbar spine injury and there is no suggestion in any of the evidence before me that the alteration in gait which is clearly observed and described by them results from anything other than the lumbar spine injury and its effects.
The bone scan undertaken on 22 July 2019 of the lumbar spine revealed the presence of trochanteric bursitis in the bilateral hips. There is no suggestion in any of the evidence or the medical opinions including the IME opinions that Ms Davis suffered this condition in her bilateral hips prior to the subject injury.
Ms Davis’ case is supported by the opinion of Dr Guirgis, the independent medical expert (IME) qualified on behalf of Ms Davis who provides two reports dated 20 April 2021 and 24 April 2022 respectively.
For the purposes of his report dated 20 April 2021, Dr Guirgis examined Ms Davis on the same day. Dr Guirgis took a history consistent with the other evidence before me, and had regard to the radiological investigations and conducted a physical examination of Ms Davis. He opined as follows:
“The 30-08-2016 incident resulted in post-traumatic mechanical derangement of the lumbar area the spine. This was caused by musco-ligamentous sprain/strain with L3-4 intervertebral disc involvement. This had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. There was isotope scan evidence of multi-level increased Tc99uptake in the facet joints throughout the lumbar spine. This was most marked at right L3/4 and to a lesser extent at left L3/4. Elsewhere, there is mild focal uptake at right L1/2, right L2/3 and very mild at Left L1/2, left L2/3 and bilateral L4/5 facet joints. Such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one described. At the L3-4 level there was MRI evidence of a right posterolateral annular tear associated with diffuse disc building and a right centro-oblique posterior disc protrusion extending backwards to indent into the anterolateral surface of the thecal sac and compromise the exiting right L3 nerve root.
In both hips there were symptoms and signs of trochanteric bursitis. Trendelenburg test was weak ly positive ion both sides. There was also isotope bone scan evidence of increased Tc 99 uptake in the petri trochanteric areas of both hips consistent with mild bilateral trochanteric bursitis. The consequential right hip ad=abductor insufficiency would result in altered firing sequence for hip abduction with the iliotibial stabilisers - (tensor Fascia Lata and superior fibres of gluteus maixmus)- firing first, exposing the Petri trochanteric soft tissue structures to abnormal compression and tensile loads. This would eventually result in the onset of symptoms and signs of Greater Trochanter Pain syndrome.
As stated earlier, she continued to be treated conservatively including with pain killing medications, a pain management program (STEPPS) through the genesis Gym. Dr Ferris (pain specialist) arranged CT guided spinal epidural injection, facet joint injections and radiofrequency procedures at various levels from L1-2 level to L5-S1 level with poor response.
Eventually an intraspinal cord stimulator was tried by Dr Ferris on 14 May 2020 with good response. A permanent intraspinal cord stimulator was inserted on 16-08-2020 by Dr Davies (neurosurgeon). The immediate post operative period passed uneventfully.
At a further stage in October 2020 the inserted stimulator needed further adjustments to deal with the pain felt over the generator and the parathesisia down her left leg.”
Dr Guirgis went onto assess a permanent impairment of the left lower extremities as follows:
“according to Table 17-33 Impairment Estimates for Certain Lower Extremities Impairments – Trochanteric bursitis (chronic) with altered gait, there is 3% whole person impairment for the right hip and 3% whole person impairment for the left hip.”
He deducted 1/10^th of the assessed impairment which after rounding still left 3% whole person impairment. Of course the matter of the degree of permanent impairment, if any, if Ms Davis is successful on the liability question would be a matter for the MA. The impairment assessment of Dr Guirgis is included for the purpose of showing what Ms Davis claim is based upon.
In his further report dated 24 April 2022, Dr Guirgis did not further review Ms Davis but he was provided with Dr Cadden’s reports and he answered specific questions from Ms Davis’ lawyers.

Dr Guirgis was asked “how the bilateral hip pian and trochanteric bursitis is related to our client’s original back injury of 31/8/16?” and he answered as follows:
“this would represent a secondary injury fitting under the umbrella of “spine-Hip Syndrome” . This consequential involvement of the hip was caused by the radiculpathic hip abductor weakness and the altered kinematics and movement coordination of the deranged axial lumbar spine and the freely mobile hip joint. There is a balance in the movement complex comprising the lumbar spine, the pelvis and the femur at the hip joint which eventually becomes overwhelmed because of the abnormally reduced range of movement of the injured lumbar spine and as a long term effect the adaptation to the imbalance failures leading to secondary impingement pathology in the hip joint as what happened in this case.
Stiff lumbosacral joint, significantly reduces the variations in acetabular anteversion between seated and standing p[solutions. Such stiffening of the pelvis, in easier a relative anterior or posterior tilt, may lead to a reproducible impingement situation.”
He was asked about Dr Cadden’s report and he answered that it didn’t alter his opinion.
Dr Caden was the IME qualified on behalf of Invocare.
Dr Caden saw Ms Davis on 25 November 2021 and provided a report dated 12 January 2022 and a supplementary report dated 18 July 2022.
Dr Caden took a detailed history consistent with the other evidence before me of the lumbar spine injury and the problems persisting since.
He undertook an examination noting that she waddled into the room with an antalgic gait on both sides and this caused issues with balance. He recorded his examination findings as follows:
“She mobilised into the rooms with an antalgic gait on both sides. This was causing her to waddle into the rooms with some issues with balance. There was healed vertical scar to the mid lumbar region. The scar was visible, with a widened scar line and mild induration, There were trophic changes on touch to the scar with marked sensitivity to the scar. She was able to forward flex 1/8 of normal and she was unable to extend. She had rotation and side to side bend of one half normal. There was a transverse scar to the left lower back which was visible. There was mild induration, There was a palpable stimulator underneath the skin which was tender ion palpation and some adherence of the scar to the deep tissue in the supine position she only able to achieve a straight leg raise Of 30* with normal reflexes. There is mild pain to her hip with motion. She had normal muscle tone and power to the legs.”
I note that on examination by Dr Cadden there were positive findings in relation to the hips, namely mild pain to the hip with motion.
He had regard to the various radiological investigations including the 22 July 2019 bone scan of the lumbosacral spine which identified mild trochanteric bursitis in the hips.
Under the heading “opinion” Dr Caden wrote:
“She is having persisting pain from the work-related lumbar injury which was re-aggravated during volunteer work in 2018. She has undergone spinal cord stimulator insertion with an ongoing discomfort and decreased functionality.”
Dr Cadden diagnosed:
“Persisting lower back pain related to likely L3/4 disc bulge secondary to work related twisting injury.”
Dr Caden went on to answer a series of specific questions under the heading “medical liability”.
He was asked “What is the current diagnosis? And he answered:
“she is suffering from ongoing lumbar back pain from her work related twisting injury where there is documented disc protrusion at the L3/4 level with some impingement on the existing nerve root. She has insertion of a spinal cord stimulator with only some benefit. She is still getting episodes of radiculopathy to the right leg and also pain to the left and right hips with walking, where there are bone scan findings of trochanteric bursitis.”
I note he accepts the persistence of symptoms as a result of the lumbar spine injury and that Ms Davis is experiencing the symptoms of which she complains.
In respect of the bilateral hip condition he is asked “please explain if the workers bilateral hip condition has a causal connection to the original work injury 21/08/206 . If there is a causal condition, please provide your permanent impairment assessment and he answers:
“I cannot see there being a causal connection of the bilateral hip pain from the trochanteric bursitis being connected to the original injury from 31 August 2016.”
He goes onto note “she has been certified totally unfit for duty now with her chronic pain and marked limitation with sitting and standing which would limit her ability to participate in any effective work.”
He goes onto repeat in his impairment assessment that the bilateral hip condition is not work related by simply stating:
“I do not see the hip condition as part of her lumbar spine injury and not rateable.”
He notes that Ms Davis is totally incapacitated for employment and notes the persistence of difficulties including with pain and walking noting his opinion as:
“She is currently not fit for any work related activities. She has a marked limitation with her ability to sit or stand and limitation with walking distances. She limitation with driving.’
Dr Caden provided a supplementary report dated 18 July 2022 without further review of Ms Davis for the purposes of answering specific questions in relation to the alleged hip condition.
Dr Caden was asked “1. Please advise whether your opinion as to the claimant’s bilateral hip condition has changed? specifically please advise whether you consider there to be a causal connection between the claimants accepted lumbar spine condition and her alleged bilateral hip conditions” and he answered as follows:
“I have read through my p[previous report from 12 January 2022. The initial work related company was for the lumbar spine region. This resulted from moving the body bag and the reaggravated when walking horses. Her main complaint was the constant lower back pain with some radicular pian that was not resolved with a spinal cord stimulator. The MRI was showing diffuse disc bulge with areas of facet joint degeneration change. There was no degenerative changes to the vertebral body regions. The documented reduced spinal range of motion is more than likely due to pain limiting motion, as the lumbar spine did not demonstrate marked degenerative change to limit motion. On the day of assessment, she did not describe hip pain, focusing on the lumbar spine pain as her main symptoms, She does have a bone scan which has shown the presence of trochanteric bursitis and no signs of degenerative arthritis or hip impingement. Based on the basis of described symptoms to the hips on the day of assessment, my opinion is that the hip condition of trochanteric bursitis is not causally linked to the lumbar spine condition.”
When weighing Dr Cadden’s opinion in the balance with the other evidence I note in fact his examination Ms Davis reported pain on motion of the hips. In addition, she described to him that she had pain in both hips when walking. Dr Caden has noted the antalgic gait and causing her to waddle on both sides. He has accepted that she had limitations on walking and sitting and standing because of her back pain. He has accepted that the pain in her lower back is chronic and he accepts that she gets the persistent back pain which she describes with its consequential impact on her gait.
Dr Caden was asked “2. Please provide any comments on Dr Guirgis report (or generally) that you wish to make?” and he answered:
“I have read through the report from Dr Guirgis dated 24 April 2022. He has focused on the causal relationship being due to ‘Spine-Hip’ Syndrome. This is a syndrome that has been used to describe the presence of hip osteoarthritis and lumbar spondylarthritis and the difficulty with the primary and secondary cause of pain. The imaging of the hip does not show the development of osteoarthritis or signs of hip impingement that Dr Gurgis has described. I am not of the opinion that she suffering a secondary injury under the umbrella of spinal -hip syndrome.”
When weighing the opinion of Dr Caden in the balance with the other evidence, I note that his opinion is expressed to be on the basis that Ms Davis did not complain of hip pain when he saw her on 25 November 2021 focusing instead on her lumbar spine pain. In fact Dr Caden recorded a history in his first report that Ms Davis complained of pain in her hips on walking and he also recorded on physical examination that she had “mild pain to her hip with motion.”
The evidence does not need to establish change in the underlying pathology. That is, it is well settled that it is not necessary for Ms Davis to succeed in respect of the consequential condition in the hips that she alleges here, to establish “injury” to her hips within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her hips have resulted from her lumbar spine injury. Here the evidence in support of Ms Davis’ case is that the there was no pre-existing condition or abnormality in the hips, the persistent symptoms from the lumbar spine injury caused her to later her gait, to waddle on both sides , and that she had pain in her hip when walking. Pathological change was found in the bone scan of the lumbar spine in 2019 which showed trochanteric bursitis and this along with the altered gait forms the basis of Dr Gurgis whole person impairment assessment. Dr Guirgis has explained that in his opinion she suffers spinal hip syndrome and has given an explanation of the mechanics of how that syndrome has operated in Ms Davis’ case.
Dr Caden does not see a causal link between the hip pain and the lumbar spine injury. In his first report he simply states this to be so without further explanation, When asked to clarify his opinion in his second report, he says that Ms Davis didn’t complain of pain in her hips on the day of the assessment for the purposes of his first report but she focused “mainly” on the lumbar spine pain. I note he accepts that Ms Davis suffers from “chronic” pain from the lumbar spine, that it is “persistent” and prevents her from working. I also note that in fact his examination findings on the day of assessment record a complaint of pain on motion in the hips. I also note that he further records in that first report that Ms Davis reported to him that she experiences pain in both hips when walking. When asked to explain his conclusion that the hip pain is not connected to the lumbar spine, the reason he gives is based on Ms Davis not reporting hip pain to him on the first assessment when in fact his report shows that she did report that pain both as matter of history (pain in the hips when walking) and during the physical examination (pain in the hips with motion). When I weigh the competing IME opinions in the balance with the other evidence, I prefer the opinion of Dr Guirgis to that of Dr Cadden.
Counsel for Invocare submitted that I would not be satisfied that there was sufficient evidence that the bilateral hip condition is consequential upon the lumbar spine injury for reasons that included Ms Davis own statement evidence is vague and insufficient, the treating evidence is silent on hip complaints and there was an intervening event in September 2021 where she hurt her hip that was not disclosed to the IMEs. All of the evidence has to be weighed in the balance and a determination made on the balance of probabilities as to whether the condition in the hips was consequent upon the lumbar spine injury.
In respect of the event in September 2021 Ms Davis did trip on uneven concrete and reported pain in her hip. An ambulance was called by a passing policeman and she was conveyed to hospital. I note no treatment or specific radiological investigation was undertaken as a consequence of this event apart from the prescription of pain killing medication which she declined. I note she was already taken pain killing medication for her lumbar spine injury. It seems there was no follow up treatment in respect of this fall. In any event I note that problems in her bilateral hips were reported to the IME Dr Gurgis In April 2021 well prior to the fall in September 2021 and were the subject of assessment by him. In addition the trochanteric bursitis was revealed on the bone scan undertaken in 2019. All of the evidence has to be weighed in the balance and a determination made on the balance of probabilities as to whether the condition in the hips was consequent upon the lumbar spine injury.
For Ms Davis to have been held to have suffered a consequential condition in the bilateral hips I do not have to be satisfied as to pathological change as a result of the consequential condition. It is not necessary for Ms Davis to succeed in respect of the consequential condition in the bilateral hips that she alleges here, to establish “injury” to her bilateral hips within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her hips have resulted from her lumbar spine injury.
When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Ms Davis suffered a consequential condition in her bilateral hips as a result of her lumbar spine injury on 31 August 2016. Accordingly the lumbar spine, digestive system, scarring (TEMSKI) and left and right lower extremities will be remitted for referral to a MA to assess the degree of whole person impairment, if any, as a result on injury on 31 August 2016.
The left and right lower extremities will be referred without the specification of the word hips in the referral as contended for by counsel for Invocare. The reference to lower extremities suffices in circumstances where the opinion of the IME qualified on behalf of Ms Davis impairment assessment was the lower extremities, based on alteration in gait and trochanteric bursitis. Of course any impairment assessment is a matter for the MA.
The documents to be referred to the MA are those admitted in these proceedings by consent as set out above.

[2022] NSWPIC 629

10 November 2022