Dunford v Bennett's Sawmills Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dunford v Bennett’s Sawmills Pty Limited [2021] NSWPIC 390
APPLICANT:	Shane Dunford
RESPONDENT:	Bennett’s Sawmills Pty Limited
MEMBER:	Kerry Haddock
DATE OF DECISION:	01 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as a result of injury to left ankle, left foot and left knee, and TEMSKI scarring; respondent disputed injury to left knee; lack of contemporaneous medical evidence; applicant relied on independent medical examiner evidence that appears to accept injury to left knee evidenced by fracture of fibula; consideration of Haroun v Rail Corporation New South Wales, Greater Taree City Council v Moore, Jaffarie v Quality Castings Pty Ltd, Castro v State Transit Authority (NSW) and North Coast Area Health Service v Felstead; Held – the applicant sustained an injury to his left knee; assessment of permanent impairment is a matter for Medical Assessor (MA); matter remitted to President for referral to MA for assessment of permanent impairment as a result of injury to left lower extremity (left ankle, left foot and left knee) and TEMSKI scarring.
DETERMINATIONS MADE:	1. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the left lower extremity (left ankle, left foot and left knee); and TEMSKI scarring on 17 September 2018. 2. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents dated 3 September 2021 and attachments, including letters of instruction to Dr James Bodel and all annexures to those letters.

STATEMENT OF REASONS

BACKGROUND

The applicant, Shane Dunford (Mr Dunford) was employed by the respondent, Bennett’s Sawmills Pty Limited (Bennett’s), as a labourer.
Mr Dunford sustained an accepted injury to his left ankle and foot on 17 September 2018, when a log rolled back while he was operating a saw, crushing his left ankle. He also claims to have sustained an injury to his left knee when the back of his knee was struck by a crowbar that rolled from a nearby trolley as he tried to move out of the way.
By letter dated 11 January 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) for the sum of $30,010 in respect of 13% whole person impairment (WPI).
On 8 April 2021, the respondent’s workers’ compensation insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML advised Mr Dunford that liability for permanent impairment compensation was disputed. It disputed that he had sustained injury to his left knee; and that his employment was a substantial contributing factor to any injury to his left knee. EML confirmed that it had accepted liability for injury to Mr Dunford’s left ankle. It disputed that the assessment of permanent impairment on which he relied in making his claim, when injury to his left knee was excluded, had resulted in more than 10% WPI, as required by section 66(1) of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 2 June 2021. He claimed to have sustained injuries to his left knee, ankle and foot during the course of his employment when he was operating a saw and the log rolled back, crushing his left ankle. He tried to move out of the way and a crowbar rolled off a nearby trolley and struck the back of his left knee.
The applicant claimed the sum of $30,010 in respect of 13% WPI as a result of injury to his left lower extremity and TEMSKI scarring on 17 September 2018.
The respondent lodged its Reply on 24 June 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the applicant sustained an injury to his left knee on 17 September 2018.

PROCEDURE BEFORE THE COMMISSION

10.The matter was listed for conciliation/arbitration hearing by telephone on 6 September 2021. Mr Barter of counsel, instructed by Mr Narsimullu, appeared for the applicant, who was present. Mr Stockley of counsel appeared for the respondent, instructed by Mr Michael.
Ms Ridley of EML was also present. Mr Michael and Ms Ridley were excused at the completion of the conciliation phase of the proceedings.
11.The respondent objected to parts of the applicant’s statement. The applicant pressed for the inclusion of his statement in its entirety. For reasons provided at the hearing, and which were recorded, the entire statement was admitted.
12.The parties agreed that, should I determine that the applicant has not sustained injury to his left knee, then the medical dispute is not to be referred to a Medical Assessor, as the assessment of WPI on which the applicant relies is not otherwise more than 10% WPI.
13.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

14.The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 3 September 2021 and attachments, filed by the applicant. The applicant also provided, at the respondent’s request, copies of his letters of instruction to Dr James Bodel, and all annexures to those letters. Those documents were admitted by consent.

Oral evidence

15.There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Shane Dunford

16.On 1 June 2021, Mr Dunford stated that he was formerly known as Shane Winters.
17.Mr Dunford commenced employment with Bennett’s in or about 2010, as a labourer. His duties involved cutting and stacking timber, cleaning and operating machinery, including timber saws, and customer service.
18.On 17 September 2018, the applicant was setting up a log on the saw. As the log was put through the saw, it rolled back, crushing his left ankle. As he tried to jump out of the way, he twisted around, and a crowbar rolled off a trolley and struck the back of his knee. He fell to the ground and struggled to get up, due to severe pain in his left leg.
19.The applicant’s boss drove him to town, and he consulted Dr Ala Ali at Kandos Family Medical Practice. He was advised to go to Bathurst Hospital for x-rays, which revealed he had a fractured fibula. He was placed in a wheelchair.
20.The applicant’s left leg was put in a cast, and he was unable to weight-bear. The back of his knee was also very sore, and he was referred for further x-rays of his left leg on 18 September 2018.
21.The applicant was referred to orthopaedic surgeon, Dr Peter Kilby, and to have an MRI scan of his left ankle. This revealed he had suffered a syndesmosis injury as part of a Maisonneuve fracture. Dr Kilby advised that he had sustained a small hairline fracture in the back of his left knee, but there was no surgical intervention he could offer. He said it should heal on its own.
22.Mr Dunford underwent syndesmosis tightrope surgery, performed by Dr Kilby, on 27 September 2018. The procedure was paid for by the insurer. His whole left leg was in a plaster cast after the surgery. He then underwent a course of physiotherapy.
23.In May 2019, the applicant returned to Dr Kilby, as he was experiencing increased pain in his left foot and ankle. He underwent further x-ray and MRI scans. Dr Kilby also recommended a further eight sessions of physiotherapy. Upon review of the results of the x-ray and MRI,
Dr Kilby referred the applicant to Dr Ben Milne, orthopaedic surgeon, who specialises in foot and ankle conditions.

24.On 21 October 2019, the applicant consulted Dr Milne, who advised him he had also sustained a calcaneal fracture. He advised the applicant that he had developed post-traumatic arthritis and recommended a subtalar fusion.
25.The applicant underwent subtalar fusion, performed by Dr Milne and paid for by the insurer, on 19 November 2019. He then underwent further physiotherapy and continued under
Dr Milne’s care until mid-2020, when he was advised there were no further treatment options available. He relied on Panadol and Nurofen for pain relief.
26.The applicant continued to experience pain in his left knee, foot and ankle, and to walk with a left-sided limp. He had not complained to his doctors about his left knee since the initial investigations, as his left foot and ankle pain was significantly worse and had always been the focus of treatment. He considered himself a stoic individual and was not one to complain about his problems when he did not believe there would be any benefit in doing so. Dr Kilby had advised nothing could be done about his left knee, and it would heal on its own. He continued to walk with a limp and there was intermittent clicking in his knee. The back of his knee was struck with a crowbar, so he figured the ongoing pain would be a natural consequence of the incident and his altered gait.
27.The applicant had no pain or restrictions in his left knee, foot or ankle before the work injury. He considered himself fit and active, and enjoyed being outdoors. He used to enjoy playing tennis and soccer but since his injuries had been unable to play any sports. He also used to enjoy running and cycling. Since the accident, he struggled with ongoing pain and discomfort in his left knee, foot and ankle and continued to walk with a limp. He had tried to cycle, but the clicking and pain in his left knee was worse when cycling.
28.The applicant has five young children, and he has them with him every weekend. He was unable to run around or jump on the trampoline with them, which was deeply upsetting.
29.The applicant had been unable to return to his pre-injury duties. About two months before, he had obtained employment as a truck driver. He could tolerate driving an automatic truck but had been working 38 hours per week and had experienced increased pain in his left ankle and knee. His ankle was still worse than his knee.
30.As a result of his injuries, the applicant struggled to perform domestic activities, putting them off or trying to do a little at a time. After work, he sat with his foot elevated to try to reduce the swelling. He relied mostly on takeaway food to avoid standing to prepare meals.

Medical Evidence

Kandos Medical Practice – Dr A M Ali

31.The clinical records of the practice record only, relevantly, “Fibula fracture (Left)” in 2018.

Investigations

32.There is a report of Dr B Barry, addressed to Dr Ali, of an x-ray of the applicant’s left tibia, left knee and left ankle on 18 September 2018.

33.The clinical history recorded by Dr Barry was “trauma”. His findings included the left knee.
I will discuss the report further below.
34.On 26 September 2018, Dr Phil Lucas reported on MRI of the applicant’s left lower leg. He recorded the history as “Trauma. Exclude a fracture”.
35.Dr Lucas found a fracture of the proximal fibula. He noted there appeared to be a form of Maisonneuve type injury, with a sprain of the syndesmosis involving the anterior inferior tibiofibular ligament and the posterior tibiofibular ligament, and oedema involving some of the intraosseous membrane. No other features were seen.
36.Dr Lucas recorded his impression as Maisonneuve fracture seen with syndesmosis injury and fracture of the proximal fibula.

Mudgee Medical Centre – General Practitioners

The surgery’s records are attached to the Application. They commence on 17 July 2019, which is almost a year after the injury. I have not referred in these reasons to every entry in the records.

On 31 July 2019, Dr Tan recorded that the applicant had “subtalar joint arthrodesis and subtalar arthrosis, left, synovitis”. He was awaiting a second opinion. His right ankle range of motion was “fine”, no swelling/red at present. He had stiffness in the morning, as his feet were cold at night. He was a “wood cutter”. He was encouraged to look for a job as a driver or in retail. (I assume that the reference to the applicant’s right foot is an error).

On 28 October 2019, Dr Tan recorded that the applicant had been reviewed by Dr Milne and would have an ankle fusion in early December. He was less stiff in the morning. He was doing a course online and aimed to look for a new job next year, once his ankle function improved.

On 11 February 2020, Dr John Cherry recorded that the applicant had requested a Centrelink medical certificate. He noted an ankle fracture at work in September 2018. The applicant had “initial operation post [injury]” and subtalar fusion in November 2019. He was asking for pain relief. He was occasionally wearing a CAM boot and partial weight-bearing. He was seeing Dr Milne the next day. The applicant was concerned about some small bumps on his feet. Dr Cherry noted “?Pomphloyx (mild) – asymptomatic.”

On 9 March 2020, Dr Cherry recorded that the applicant had hit his left elbow on a water slide two weeks before. He felt immediate pain and heard a crack. He presented with ongoing pain and palpable moveable mass over the proximal ulnar. He was referred for x-ray at Mudgee Hospital.

On 20 March 2020, Dr Cherry recorded that the applicant had been recalled for olecranon bursitis. There was a “long discussion about symptoms and management”. The applicant had been doing push ups daily.

On 17 April 2020, Dr Cherry recorded that the applicant’s left elbow symptoms had been improving. He declined the offer of MRI. He had screws and bone grafts into his left ankle last year and was seeing Dr Milne as workers’ compensation. He was requesting a workers’ compensation certificate. Dr Milne had been his nominated treating doctor after the initial operation by Dr Kilby.

Apart from a notation of surgery consultation recorded by Mrs Debbie Hundy on 22 May 2020, this is the last entry in the records.

The investigations included in the records include ultrasound and CT of the left ankle on 4 May 2020.

Dr Peter Kilby – Orthopaedic Surgeon

Dr Kilby reported first to Dr Ali on 28 September 2018. He noted that the applicant had had an injury at the local sawmill.

Dr Kilby “understood from the referral and from the patient” that his left ankle or fibula had an injury when a log rolled over it at its workplace. He had a fracture high on the fibula, which was confirmed on x-ray. Dr Kilby referred to the findings on MRI.

On examination, the applicant was in a cast. This was removed, and Dr Kilby recorded swelling on the lateral malleolus and (on?) the medial side and bruising below the ankle.

Dr Kilby performed syndesmosis tightrope surgery on 27 September 2018. He had attached the operation report.

The applicant was to have two weeks of rest in the boot. He was to take a blood thinner and would be touch weight-bearing until week six, and partial weight-bearing from weeks six to ten. At that stage, he would be able to come out of the boot.

Dr Kilby reviewed the applicant on 14 December 2018, approximately 10 weeks post-surgery. He reported that Mr Dunford had some sensitivity around the scar, but his movement was improving.

The applicant told Dr Kilby that the swelling was coming down, he had been working on his movement and had started increasing his weight bearing back to full. Dr Kilby referred him for physiotherapy for the next eight to ten weeks. He wanted the physiotherapist to work on muscle strengthening and gait training, as well as proprioception and movement in the ankle.

Dr Kilby understood the applicant’s previous job had closed down, so he would be looking to re-enter the workforce in the next few months.

On 1 February 2019, Dr Kilby reported that the applicant had had a new x-ray that showed good alignment of the ankle mortise and the syndesmosis. The previous surgery site and the buttons on the tibia and fibula were all in good position.

Dr Kilby opined that the applicant was “well on the road to recovery”. He had not been able to get into physiotherapy but had been on holiday and was walking on the sand, so had “basically done his own physiotherapy”. His ankle was moving quite well.

Dr Kilby sought approval for eight weekly sessions of physiotherapy, to prepare the applicant for a return to work “in the wood mill”.

On 15 March 2019, Dr Kilby reported that the applicant had been doing physiotherapy and was very compliant with the exercises. No new x-rays were needed. The applicant’s ankle range of movement was very good, and almost back to the level of the opposite side with dorsiflexion and plantarflexion.

Dr Kilby had reviewed a letter from the applicant’s physiotherapist, “Cheryl”. His rehabilitation was going well, and he was doing a strengthening and balance program. Dr Kilby was happy with the surgery and the physiotherapy had gone to plan.

On 3 May 2019, Dr Kilby reported that since his last review, the applicant had had a flare up of ankle pain and symptoms. He had done more physical activity and mown the lawn, after which he noticed increased pain and swelling around the ankle. He had been unable to put full weight on it and had been limping since then.

Dr Kilby was unsure why the applicant’s symptoms had worsened, but noted it seemed to correlate with increased activity and as he got further with his rehabilitation. Mr Dunford was to have new investigations and have eight more physiotherapy sessions if they were approved.
On 14 June 2019, Dr Kilby reported that the applicant had had a further MRI on 17 March 2019 [sic:17 May 2019]. He had developed subtalar arthrosis and synovitis, and some bone oedema on the sinus tarsi. There was no talar dome lesion that Dr Kilby could see.

Dr Kilby talked to the applicant about his symptoms. He was getting some pain on the outside of his foot, and he pointed to the outside of the foot, just below the fibula. He still had swelling by the end of the day. His ankle range of motion was fairly good. He still had swelling both medially and laterally around the hindfoot.

As there were some subtalar changes, Dr Kilby suggested referral to Dr Milne. He recommended that the applicant continue physiotherapy until then.

On 16 August 2019, Dr Kilby reported having gone through the applicant’s symptoms. His pain was fairly manageable when sitting, but on standing or walking it was sometimes 8/10. The applicant pointed to the lateral aspect of the ankle as the location of the pain, and it radiated around to the front of the ankle. His range of motion was relatively good. Stiffness was not a major issue, but it was probably more instability, as he felt he was not confident in his ankle, particularly on uneven ground.

The applicant was seeing a physiotherapist in Mudgee, focusing on strengthening exercises. His gait pattern was quite good. It appeared his strength was improving.

Dr Kilby had no “easy cure” for the applicant. He had had some improvement from an injection into the subtalar joint, and Dr Kilby had requested approval for a further injection.

Dr Ben Milne – Orthopaedic Surgeon

Dr Milne reported to Dr Kilby on 21 October 2019.

Dr Milne recorded a history that on 17 September 2018, the applicant was trying to run a tree through a saw, when the saw [sic] came loose from its bindings and rolled onto his left leg. He described a crush injury to his leg and ankle. He had pain and swelling and difficulty weight bearing.

Dr Milne then recorded the history of the applicant’s treatment. His ankle had not settled with a physiotherapy program.

The applicant described ongoing constant pain in the subfibular region laterally and at the medial aspect of the ankle. The pain was exacerbated by walking, cold weather and, particularly, uneven ground. His ankle swelled and clicked. He had occasional paraesthesia. His ankle felt unsteady, particularly on uneven ground.

Dr Milne recorded his examination, which focused on the applicant’s left ankle and foot. He also reviewed the investigations.

Dr Milne diagnosed a fracture of the calcaneus at the posterior facet of the subtalar joint. As a result, the applicant had developed post-traumatic arthritis of the joint. This was causing the ongoing pain, stiffness and difficulties on uneven ground. Dr Milne recommended a subtalar fusion.

Dr Milne performed the surgery at Dudley Private Hospital on 19 November 2019. He reported on 15 January 2020 that the applicant was “going OK”. The pain had slowly settled. He had had a couple of falls while trying to mobilise with his crutches.

Dr Milne reassured the applicant “that everything is heading in the right direction”. He was happy for the applicant to be fitted with a CAM boot, but he was to remain non-weight bearing for four weeks. Dr Milne had instructed him on exercises to perform at home.
On 14 February 2020, Dr Milne reported that the applicant was “doing pretty well”. He noted some pain if he was on his feet too much and was taking occasional analgesics. He had been coping non-weight bearing, using crutches and his CAM boot. There was no significant swelling of his ankle.

Dr Milne referred the applicant for physiotherapy to work on range of motion exercises, swelling management, gait re-training, calf and peroneal strengthening and proprioceptive work.

On 22 April 2020, Dr Milne reported that he had reviewed the applicant by Telehealth. The applicant reported ongoing pain and swelling at the lateral aspect of the ankle. He had been managing the pain with regular Nurofen and Voltaren.

The applicant had pain with weight bearing. He had weaned himself out of the CAM boot. He occasionally reported crepitus around the ankle. He had been seeing his physiotherapist. He did not feel he was fit enough to return to any work, due to the pain and swelling.

Dr Milne recommended CT scan and ultrasound of the applicant’s ankle “to try to work out what is going wrong”. The applicant’s general practitioner was unhappy to complete his workers’ compensation certificates, so Dr Milne certified him as unfit for a further four weeks.

On 5 May 2020, Dr Milne reported that the CT scan confirmed the fusion was progressing but remained incomplete. An ultrasound had failed to demonstrate any problems with the peroneal tendons. There was a small ankle effusion and a spur around the ATFL (anterior talofibular ligament), consistent with a previous injury.

Dr Milne reported that the applicant had ongoing pain and swelling, particularly at the lateral aspect of the ankle. He had reassured the applicant and thought his ankle just needed ongoing support. He recommended a lace up boot and that the applicant continue with physiotherapy.

On 3 June 2020, Dr Milne reported, having reviewed the applicant by Telehealth.
The applicant continued to make slow progress and did not feel he had resumed his normal level of activities. He reported intermittent pain, both posteriorly at the heel and medially, which was well managed with Panadol or Nurofen. He noted swelling over the course of the day, but it settled overnight. He had been fitted with appropriate footwear and continued physiotherapy.

Dr Milne opined that the things the applicant described sounded like “it is heading in the right direction”. He was to have up-to-date x-rays, and Dr Milne wished to have a face to face consultation.

Dr Milne’s last report is dated 8 July 2020. The applicant was “doing pretty well”. He had noticed significant improvement since the last review.

The applicant no longer required regular analgesics but took the occasional Nurofen or Panadol. He noted some swelling over the course of a busy day, which settled overnight. He had been fitted with new shoes and work boots, providing tremendous support. He was still a little wary with activities, particularly on uneven ground, but felt there was less instability.

Dr Milne noted that the applicant walked with a subtle limp. He had some mild swelling of the ankle. There was a solid subtalar fusion, showed by recent plain radiographs.

Dr Milne had reassured the applicant that things were “heading in the right direction”. He was happy for the applicant to continue physiotherapy and start hydrotherapy to work on gait retraining and strengthening.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel was qualified by the applicant and reported on 14 October 2020. The examination was conducted by video conference. He has referred to the applicant as Mr Winters.

Dr Bodel summarised the applicant’s injuries as being to the left foot and ankle. He has recorded a history that the applicant suffered a crush injury to his left ankle on 17 September 2018. He was able to pull the ankle out quickly and then fell to the ground. He had been working on a trolley and twisted his knee as well as his ankle. “In fact,” his knee was also hit with a crowbar, which he was using at the time.

Dr Bodel recorded that the applicant went to his local doctor with pain in his left knee and ankle. He was put into a plaster cast and referred to Dr Kilby. He was allowed to heal, and his knee improved. He later underwent surgery to insert a “tightrope” to close up syndesmosis. He was in a cast and boot for three months and then had extensive physiotherapy.

The applicant was left with pain and instability in the subtalar joint. He underwent subtalar fusion, performed by Dr Milne, which had helped. He continued to manage the injury with Panadol and physiotherapy. Dr Bodel recorded that he had had no prior problems with his left knee, left foot or ankle.

Dr Bodel recorded the applicant’s complaints as an ache at the front of the left knee; inability to kneel or squat, with a cracking sensation if he tried; difficulty on stairs; pain, swelling and instability in the region of the left foot and ankle. He found a slight restriction of knee movement on the left.

Dr Bodel opined that the applicant suffered an injury to his left knee and left foot and ankle on 17 September 2018. The employment injury was the “main substantial contributing factor to ongoing complaints”. The mechanism of injury was as detailed previously in the report. The applicant had a restricted capacity for work because of the residual effects of injury to his left knee and ankle.

Dr Bodel assessed the applicant with 13% WPI. This included impairment as a result of the direct blow to the front of the left knee; impairment as a result of injury to the left ankle joint; impairment for the subtalar fusion; and TEMSKI scarring.

On 30 August 2021, the applicant’s solicitors provided Dr Bodel with the x-ray report of
Dr Barry dated 18 September 2018. Dr Bodel was asked to provide a supplementary report “providing a precise diagnosis of the nature of the injury Mr Dunford suffered to his left knee”.

Dr Bodel provided a supplementary report dated 3 September 2021. He has referred to the x-ray report as being dated 18 December 2018, which is clearly an error. He quoted the report as showing a “non-displaced fracture of the proximal fibula neck/shaft”, which he said was consistent with the injury as described. He regarded the “well corticated calcific densities adjacent to the tip of the lateral malleolus” as an incidental finding, and unlikely to be part of an acute injury.

Dr Bodel concluded that the additional information did not cause him to alter the assessments he had previously given.

Dr Raymond Wallace – Orthopaedic Surgeon

Dr Wallace was qualified by the respondent and reported on 17 February 2021. He assessed the applicant by Telehealth.

Dr Wallace recorded a history that on 17 September 2018, the applicant suffered an injury to his left ankle. He was setting up a log on a saw. The log was put through the saw and rolled back onto his left ankle. As he tried to jump out of the way, a crowbar rolled off a trolley behind him and struck the back of his left knee. He fell to the ground and had difficulty getting up.

The applicant’s boss drove him to Kandos where he was reviewed and referred for x-ray of his left lower leg. Dr Wallace noted the x-ray findings on 18 September 2018 and MRI on 26 September 2018.

Dr Wallace then recorded the history of the applicant’s treatment, including the surgeries. The applicant continued with the use of Panadol. He required no treatment for his left knee condition.

As regards the applicant’s complaints, Dr Wallace recorded no current knee pain, but he had previously noted intermittent aching pain at the retropatellar region of the left knee. The pain was worse in cold weather, bending, squatting, crouching or bicycle riding; and relieved by a hot shower or lying down. The applicant had noted no swelling at the left knee. He complained of intermittent locking at the joint and intermittent giving way, but no stiffness.

At the left ankle, the applicant noted a constant aching pain at the lateral malleolus, worse on weight bearing or walking; and relieved by elevating his leg at night. He noted swelling at the left ankle with activity and intermittent paraesthesia globally about the ankle. He also noted intermittent giving way and ongoing stiffness, particularly on inversion and eversion, due to the subtalar joint fusion. He had difficulty negotiating uneven ground.

Mr Dunford had remained off work, but was looking for work as a truck driver, operating a truck with automatic transmission.

Dr Wallace recorded that the applicant’s left knee showed an active range of movement of 0-120 degrees flexion. At the left ankle, he had an active range of movement of 0 degrees dorsiflexion, 50 degrees plantar flexion, 20 degrees inversion and 0 degrees eversion.

Dr Wallace diagnosed Maisonneuve fracture of the proximal left fibula; injury to the distal tibio-fibular syndesmosis; and fracture of the left calcaneus, involving the posterior division of the subtalar joint, with subsequent development of post-traumatic osteoarthritis at the left subtalar joint.
Dr Wallace opined that the applicant suffered an injury at his left ankle and foot as a result of an incident at work on 17 September 2018. His left ankle and foot conditions had been caused by these injuries. His employment with the respondent was a substantial contributing factor to his left ankle and foot conditions. There was no objective evidence that he suffered any direct injury to his left knee as a result of the work incident.
Dr Wallace was not able to provide an assessment of WPI. He would need to review
Mr Dunford in a face to face consultation to carry out a proper full clinical examination of his left ankle and foot.

Vocational Assessment Report – Ms Emily Hamilton (IPAR)

I do not intend to refer to Ms Hamilton’s report, dated 9 June 2020, in any detail. However, the history recorded by Ms Hamilton has some relevance.

Ms Hamilton recorded a history that the applicant was performing his usual work duties on 17 September 2018, when a log rolled from a truck [sic] and contacted his left leg. This log was said to have landed on Mr Dunford’s left ankle, crushing it, while knocking a crowbar into his left knee. The applicant indicated that the crowbar contacted the back of his knee, while his ankle was crushed.

The applicant’s diagnosis, as recorded by Dr Milne on Certificate of Capacity dated 1 June 2020, was “left ankle injury”. Ms Hamilton did not record any symptoms related to the applicant’s left knee.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant referred to his statement about the circumstances of the injury and submitted that there is no question that it occurred. There is no lay evidence that it did not. He gave the same history to Drs Bodel and Wallace, and it is consistent with the x-ray on 18 September 2018.

The applicant submitted that the real issue is whether the proximal shaft of the fibula is sufficiently part of the knee to cause WPI. No medical evidence has been directed to the question of whether the insertion of the fibula at the back of the knee forms part of the knee. The closest Dr Bodel came to explaining why he assessed WPI as a result of injury to the knee is that it was because of the x-ray of 18 September 2018. Dr Wallace referred to the same x-ray and the MRI of the lower leg. He did not consider that the fracture involved part of the knee.
The applicant submitted that if I were to find that his knee was injured by being struck by a crowbar, and there is no evidence to the contrary, then this is an injurious event. It would be a matter for a Medical Assessor whether being struck in the left knee forms part of the WPI evidenced by the fracture of the neck of the fibula.
The applicant submitted that Dr Kilby was not concerned about his knee or the fracture high on his fibula, but about his ankle, in which he had significant problems. He submitted I would give no weight to any suggestion that the injurious event did not result in ongoing knee problems. Rather, they were subsumed by the problems with his ankle.
The applicant submitted that the injurious event caused an injury to his knee, as evidenced by the fracture. If I have doubt regarding impairment, then applying Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun), that is a matter for a Medical Assessor.
The applicant submitted that, on the authority of Haroun, this is exactly the sort of case that needs to be referred to a Medical Assessor. There is a medical dispute. Dr Bodel assessed permanent impairment that results from an injury about which there can be little doubt. There was a blow to the knee, the applicant complained about the knee, and there was an x-ray the next day. Section 65 of the 1987 Act requires that the medical dispute be assessed as provided for by that section and Part 7 of Chapter 7 of the 1998 Act, which provides for referral to a Medical Assessor.
The applicant also referred to the decision in Greater Taree City Council v Moore [2010] NSWWCCPD 49 (Moore). He submitted that the x-ray in 2018 demonstrated a fracture. It is not clear whether it is the cause of his complaints or sits alongside them. He submitted
I don’t need to go into the nature of the injury, except for the need to establish some sort of pathology, but in this case I may not need to find that, as injury is not in dispute.

Respondent

The respondent submitted that there is no challenge to the fact that the applicant was struck by a crowbar as well as a log, but that is about as far as the lay evidence extends. There is no controversy about the x-ray on 18 September 2018, which showed a fracture of the proximal shaft/neck of the fibula. Dr Kilby described it as high on the fibula. This is towards the knee end of the fibula.
The respondent submitted that the applicant’s account of what happened is explicable with respect to the injury to the fibula. I would be satisfied it is not part of the knee.
The respondent submitted that Dr Bodel’s opinion complicates things. His examination was two years after the accident. The letter of instruction to him referred to the applicant having sustained fractures to his left fibula and left ankle. That is consistent with the radiological records.
The respondent submitted that Dr Bodel recorded a different history from that assumed by
Dr Wallace and given by the applicant. He appears to have assumed the applicant was struck on the left knee. He referred to an ache in the front of the knee, which is different to the applicant’s statement, in which he referred to a blow to the back of the knee.
Dr Bodel has given little detail in his opinion on causation, which may have been the reason for his supplementary report. The respondent submitted that his opinion was thrown into significant doubt, even leaving aside the lack of a diagnosis. He was asked in his supplementary report to provide a precise diagnosis and doesn’t give one.

The respondent submitted that Dr Bodel’s opinion is most unsatisfactory. It does not explain how a fracture of the fibula produces pain at the front of the knee; how it forms part of an injury to the knee, if he believes it does; or how the fracture has any effect on the function of the knee. The allegation is of injury to the knee per se, and not a consequential condition.
The respondent submitted that there is no suggestion in any source of a pathological change in the applicant’s left knee. The only evidence is that there is a fracture high on the fibula (the calf bone). It is not part of the knee, as perhaps the plateau of the tibia might be. Dr Bodel’s finding does not support injury to the knee, as per the applicant’s account.
The respondent referred to Dr Wallace’s report as containing a fairly straightforward account by the applicant. He had the radiology and found no injury to the knee. The respondent submitted that I would find the same. Once that is found, there is insufficient impairment to refer the matter to a Medical Assessor. Even on his best case, the applicant can’t meet the threshold of more than 10% WPI.
The applicant’s reliance on Haroun troubled the respondent. In that case, the Court of Appeal was asked to consider the roles of the Workers Compensation Commission and the assessor, where there were consent findings. The respondent’s case is that a fracture of the fibula does not constitute an injury to the knee. The applicant’s case is that there is an injury to the knee. It has not identified something other than a fracture of the fibula that would support a referral.
The respondent finally submitted that we understand injurious event versus injury. There is no doubt there was an injurious event, which resulted in serious injury to the ankle and fibula.

SUMMARY

The respondent does not dispute that the applicant was struck by a crowbar, as well as by a log, on 17 September 2018. It is not in dispute that the applicant sustained a serious injury to his left ankle as a result of this incident. The respondent disputes that the applicant also sustained an injury to his left knee.
The applicant’s evidence is that, as he tried to avoid being struck by a falling log, a crowbar rolled from a trolley and struck the back of his knee. That is consistent with the history recorded by Ms Hamilton, well before any claim was made for WPI, and by Dr Wallace. Mr Dunford stated that the back of his knee was very sore, and he had x-rays at Bathurst Hospital on the day of the injury. There is no evidence from the hospital, which may have shed some light on the history of the matter.
The applicant had an x-ray of his left tibia, left knee and left ankle on 18 September 2018, the day after the injury. Under the heading “Findings”, Dr Barry has recorded “Left knee”. He then recorded “No joint effusion or lipohaemarthrosis. There is a fracture of the proximal shaft/neck of the fibula, which is non displaced. No femoral condyle or tibial plateau fracture”.
Dr Barry then recorded, in a new paragraph, that “No further fracture is seen within the tibia or fibula”; and in the final paragraph: “No distal tibial or fibular fracture is evident. There are well corticated calcific densities adjacent to the tip of the lateral malleolus, which may represent previous injury. Clinical correlation is advised.” Dr Barry concluded “Non displaced fracture of the proximal fibular neck/shaft”.

Unfortunately, there is no evidence from the applicant’s treating doctors that provides an explanation of Dr Barry’s findings. All Dr Kilby has said in his first report is that he understood that the applicant had sustained injury to his left ankle or fibula, and a fracture high on the fibula had been confirmed. However, it appears to me that the applicant must have complained to Dr Ali, to whom Dr Barry’s report is addressed, about symptoms in his left knee, because Dr Barry investigated his knee.
The respondent objected to the applicant’s evidence regarding what Dr Kilby is said to have told him about a fracture at the back of his knee. I have admitted the evidence, but I give it little weight, in the absence of any confirmation from Dr Kilby.
Apart from the x-ray report of Dr Barry and the evidence of Drs Bodel and Wallace, there is no medical evidence that addresses the issue of injury to the applicant’s left knee. The records of Kandos Family Medical Practice are brief, to say the least. The applicant came under the care of Mudgee Medical Centre on moving back to Mudgee. The records of that practice are largely concerned with his left ankle injury.
The applicant’s evidence is that he did not complain to doctors about his left knee after the initial investigations were performed, because his left foot and ankle pain was significantly worse and has always been the focus of treatment. Leaving aside his evidence about what he was told by Dr Kilby, he stated that, as the back of his knee had been struck by a crowbar, he thought his ongoing pain was a consequence of the incident and his altered gait. His case is not, of course, brought on the basis that he has sustained a consequential condition of his left knee. However, it would be a reasonable assumption on the part of a lay person that limping and feeling unsteady on his ankle may cause him to feel pain in his knee.
It is clear from the medical evidence that the applicant sustained a serious injury to his left ankle, and that, after the initial surgical procedure, he developed post-traumatic arthritis of the subtalar joint, and required a fusion of the joint. This was performed by Dr Milne, who specialises in foot and ankle conditions. It is perhaps not surprising, then, that both Dr Kilby and Dr Milne focused their attention on the applicant’s left ankle injury and the treatment required for that condition.

The applicant relied on the decisions in Haroun and Moore. As the respondent submitted, Haroun was concerned with the differing roles of the Workers Compensation Commission and an Approved Medical Specialist (AMS) (or Medical Appeal Panel). The Court of Appeal held that the arbitrator, who had made findings by consent, had no jurisdiction to determine the medical dispute that had been referred to the AMS. His findings without jurisdiction could not bind the Appeal Panel, or even be persuasive.
In the matter of Moore, which was a matter in which the only claim made was one for permanent impairment compensation, Deputy President Roche determined that the arbitrator’s jurisdiction was limited to a determination of the issue of injury. It was not open to him to find that the effect of an admitted or proven injury had ceased, in a permanent impairment claim. Such a finding impinged upon the prerogative of the AMS to determine a medical dispute, as defined in section 326(1) of the 1998 Act.
Haroun and Moore were discussed by Roche DP in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie). Mr Jaffarie was successful in an appeal to the Court of Appeal, but only in respect of the finding by Roche DP that he had not sustained an injury to his thoracic spine. The Court of Appeal did not disturb Roche DP’s findings in relation to the jurisdiction of the Workers Compensation Commission or the construction of the role of an AMS.
In Jaffarie, Roche DP at [249] concluded that the following principles apply:
“(a) questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due’ to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection;
(b) it is for the Commission to determine whether a worker has received an injury within the meaning of section 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury;
(c) the Commission’s jurisdiction is restricted by section 65(3) of the 1987 Act, which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation if there is a dispute about the degree of permanent impairment, unless the degree of impairment has been assessed by an AMS;
(d) the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator;
(e) a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction, and
(f) it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues.” (Citations omitted).
Section 65(3) of the 1987 Act has been repealed. It is now open to a member to make a determination of permanent impairment without referral to an Medical Assessor.
Dr Bodel recorded that the applicant’s knee was hit with a crowbar. In providing his assessment of WPI, he opined that it arose as a result of a direct blow to the front of the knee. That does not accord with the applicant’s evidence that the crowbar stuck the back of his knee. He did complain of an ache in the front of his knee, with a cracking sensation when he tried to kneel or squat.
Dr Wallace’s history accords with the applicant’s evidence that the crowbar struck the back of his left knee. He recorded no “current” knee pain, assumed to mean at the time of his examination. However, the applicant had previously noted symptoms at the retropatellar region (behind the kneecap) and described the pain as worse on, among other activities, bending or squatting. Dr Wallace opined that there was no objective evidence that the applicant suffered any direct injury to his knee.
I agree that Dr Bodel’s opinion is somewhat unsatisfactory, in that, if it is his opinion that a fracture of the fibula forms part of an injury to the left knee, he has not explained why he believes that to be the case. However, he has stated in his supplementary report that the
x-ray report of 18 September 2018 (although he has wrongly referred to the date of the report) is consistent with the injury as described, and his opinion was unaltered.
As the applicant submitted, if I find that his knee was injured by being struck by a crowbar, then that is an injurious event. It would be a matter for a Medical Assessor whether being struck in the left knee forms part of the WPI that is evidenced by the fracture of the neck of the fibula. It is not clear whether the fracture is the cause of his complaints, but, again, in my view that would be a matter for a Medical Assessor.
Despite the deficiencies in the medical evidence, I am satisfied that the applicant sustained an injury to his left knee on 17 September 2018. I accept his evidence, supported by the history recorded by Ms Hamilton, that he was struck on the back of the knee by a crowbar. He stated, and I accept, that the back of his knee was very sore after the incident.
What is required to constitute “injury” is a “sudden or identifiable pathological change”: Castro v State Transit Authority (NSW) [2000] NSWCC12; (2000) 19 NSWCCR 496. That pathology may be as simple as a bruise or a soft tissue strain: North Coast Area Health Service v Felstead [2011] NSWWCCPD 51. I accept that there was a sudden or identifiable pathological change in the applicant’s left knee, as a result of being struck by a crowbar.
As was held in Moore, where a claim is made solely for WPI, the Commission’s jurisdiction is limited to a determination of the issue of injury. Whether the effects of the injury are continuing is a matter for a Medical Assessor. The assessment of WPI is also a matter for a Medical Assessor. While Dr Wallace opined that there was no objective evidence of an injury to the applicant’s left knee, I accept the applicant’s evidence of what occurred on the date of the injury.
The medical dispute as to assessment of permanent impairment will be remitted to the President for referral to a Medical Assessor. As I have determined that the applicant sustained injury to his left knee, the Medical Assessor will be requested to assess WPI as a result of injury to the left lower extremity (left ankle, left foot and left knee); and TEMSKI scarring.

The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 390

01 October 2021