Ensor v RSL LifeCare Ltd
[2021] NSWPIC 325
•2 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ensor v RSL LifeCare Ltd [2021] NSWPIC 325 |
| APPLICANT: | Shelley Ensor |
| RESPONDENT: | RSL LifeCare Ltd |
| MEMBER: | Jane Peacock |
| DATE OF DECISION: | 2 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Undisputed back injury; claim for consequential right ankle condition disputed; it is well settled that it is not necessary in order to succeed in respect of the consequential condition in the right ankle that is alleged here, to establish “injury” to her right ankle within the meaning of section 4 of the Workers Compensation Act 1987 but that the symptoms and restrictions in her right ankle 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 right ankle resulted from back injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. The applicant, by consent, has leave to amend the Application to Resolve a Dispute to withdraw the claim based on a date of injury of December 2019 and rely on the date of injury of 28 May 2019 and to seek a general order in respect of the payment of section 60 expenses 2. The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts. 3. The matter is remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine and right lower extremity (right ankle) as a result of injury on 28 May 2019. 4. The documents to be forwarded to the MA are those admitted by consent as follows: (a) Application to Resolve a Dispute and attached documents with the exception of the report of Dr Davies which is excluded by consent and the report of Dr Gothelf is admiited as to history only, that is, at page 52 under “history current symptoms” that paragraph is admitted by consent and the rest of the report is excluded by consent; (b) late documents filed 26 July 2021; (c) late documents tendered at the arbitration hearing and filed within seven days being a report of Dr Endrey-Walder dated 22 July 2021; (d) Reply and all documents attached with the exception of the reports of Dr Davies dated 23 April 2021 (x2) and 7 June 2021; (e) documents filed 20 June 2021, and (f) late documents tendered at the arbitration being a report of Dr Wallace dated 30 June 2021 and filed within seven days. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application), as amended, the applicant, Ms Shelley Ensor (Ms Ensor) seeks lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) and compensation under section 60 of the 1987 Act in respect of injury to her lumbar spine on 28 May 2019. She also seeks lump sum compensation and compensation for section 60 expenses as a result of an alleged consequential condition in her right ankle as a result of injury to her lumbar spine on 28 May 2019.
The respondent is RSL Lifecare Ltd (Lifecare). Lifecare was insured at the relevant time for the purposes of workers compensation by (the insurer).
Lifecare denied liability for the claim resulting from the alleged consequential condition in the right ankle.
ISSUES FOR DETERMINATION
Ms Ensor amended the Application by consent at the arbitration to withdraw the claim in relation to injury in December 2019 and to seek a general order in respect of the payment of section 60 expenses.
Ms Ensor brings a claim for lump sum compensation and compensation for section 60 expenses as a result of injury to her lumbar spine on 28 May 2019. In addition, she brings a claim for lump sum compensation and compensation for section 60 expenses as a result of a consequential condition in her right ankle that she alleges she suffers from as a result of the injury to her lumbar spine on 26 May 2019.
It is not disputed that Ms Ensor suffered injury to her lumbar spine on 28 May 2019. She underwent surgery to her lumbar spine in October 2020 paid for by the insurer.
It is disputed that Ms Ensor suffered a consequential condition in her right ankle as a result of her undisputed lumbar spine injury.
The dispute before me therefore is whether Ms Ensor has suffered a consequential condition in her right ankle as a result of the lumbar spine on 28 May 2019.
In the event, Ms Ensor is successful before me, the parties agree that the matter should be remitted to the Registrar for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine and right lower extremity (right ankle) as a result of injury on 28 May 2019. The documents to be forwarded to the MA are agreed to be the documents admitted into evidence in these proceedings.
It was agreed that in the event Ms Ensor was successful on the question of liability a general order for the payment of section 60 expenses would be made.
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 Ensor
(a) Application to Resolve a Dispute and attached documents with the exception of the report of Dr Davies which is excluded by consent and the report of Dr Gothelf is admiited as to history only, that is, at page 52 under “history current symptoms” that paragraph is admitted by consent and the rrest of the report is excluded by consent;
(b) late documents filed 26 July 2021, and
(c) late documents tendered at the arbitration hearing and filed within seven days being a report of Dr Endrey-Walder dated 22 July 2021.
For Lifecare
(a) Reply and all documents attached with the exception of the reports of Dr Davies dated 23 April 2021 (x2) and 7 June 2021;
(b) late documents filed 20 June 2021, and
(c) late documents tendered at the arbitration being a report of Dr Wallace dated 30 June 2021 and filed within seven days.
Oral Evidence
Ms Ensor did not seek leave to adduce oral evidence and counsel for Lifecare did not seek to cross-examine Ms Ensor.
FINDINGS AND REASONS
It is not disputed that Ms Ensor suffered an injury at work to her lumber spine on 28 May 2019.
She came to surgery on her lumbar spine in October 2020 which was paid for by the insurer.
She alleges that she has suffered a consequential condition in her right ankle as a result of injury to her lumbar spine as a result of an alteration in her gait caused by her lumbar spine injury and the significant left sided radicular pain she suffered.
Lifecare disputes that the right ankle condition is consequential upon Ms Ensor’s undisputed lumbar spine injury.
The law dealing with consequential conditions is clear. It is not necessary for Ms Ensor to establish that the consequential condition in her right ankle 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 Ensor does not have to establish that her employment was a substantial contributing factor to the consequential condition alleged in her right ankle. The disease provisions do not apply such that Ms Ensor does not have to establish that her employment was the main contributing factor to the aggravation of any pre-existing disease in her right ankle. It is well settled that, as it is a consequential condition in her right ankle that is being alleged, all Ms Ensor has to establish is that the symptoms and restrictions in her right ankle 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 Ensor to succeed in respect of the consequential condition in the right ankle that she alleges here, to establish “injury” to her right ankle within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her right ankle have resulted from her lumbar spine injury.
Accordingly, the question for determination is whether Ms Ensor suffered a consequential condition in her right ankle as a result of the injury to her lumbar spine on 26 May 2019.
Turning then to an examination of the evidence in this case.
Ms Ensor gave evidence in statements dated 6 June 2020 and 24 May 2021.
In her statement dated 6 June 2019 Ms Ensor describes the circumstances of injury to her lumbar spine on 28 May 2019 when she was helping to lift a patient. This injury is not disputed and the insurer paid for spinal fusion surgery which took place in October 2020.
Ms Ensor describes the symptoms and restrictions she suffered as a result of her lumbar spine injury as follows:
“I am unable to work. I am certified unfit to work. I cannot stand for long periods because my legs start getting pins and needles and shock, I cannot twist or bend over, I tried to go for walks, I cannot even stand and when I walk it jolts my back. I can’t even sense standing up without severe pain developing. I can’t walk straight and I’m beginning to waddle and I have severe pain in the ankles. Since I have sustained these injuries, I have tried to receive injections in the lumbar spine to try and relieve the pain but I was unable to receive them. Physiotherapy hasn’t worked. I am in a really bad way. I have put on a lot of weight since these injuries as I cannot walk or exercise, I used to walk my daughter to school and I can’t even do that I have to catch an Ube. This costs me $150 a week just to take my daughter to school and pick her up.”
Due to her significant ongoing symptoms including left sided radicular pain, Ms Ensor had sought surgery to the lumbar spine which was initially denied her by the insurer but ultimately took place in October 2020 paid for by the insurer.
In her supplementary statement dated 24 May 2021 Ms Ensor gives evidence that on 12 October 2020 she underwent an L4-5 and L5-S1 anterior discectomy and on 19 October 2020 and L4-5 and L5-S1 posterior fusion. Ms Ensor gives evidence as follows:
“6. In my original statement dated 6 June 2020 I say in paragraph 3 of the third page that ‘I cant walk straight and I’m beginning to waddle and I have severe pain in the ankles.’ On page 86 of the attachments to the prior Application to Resolve a Dispute I attached a photo of the swelling on my right ankle.
7. Before the operation, I used to get severe radiating pain from my lower back going down my lefty leg that would worsen when I pit pressure on it. I had to change the way I walked because the pain, that is when I would put more of my wight on my right ankle, I believe that my right ankle injuries have arisen because of me putting my bodyweight more on the right ankle and trying to avoid putting my bodyweight on the left side.
8. I injured my back in May 2019, as acknowledged, In result to this back/spinal injury, which was more severely affecting my left side of my back then my right. When I walked, it would pull my nerves more on my left side, If I walked too quickly or turned, bent,, lifted it would hit a nerve that shot down the left side of my leg to my foot and I would almost collapse. I learnt that if I put more pressure in might right side, that it would help my left side not hit the nerves as severely, and cause shooting pains down my left side, I stated to hobble from side to side putting the main weight ion my right side, I adapted to this way of walking instead of putting one leg in front of the other By the end of last year my ankle was swelling and constantly throbbing from the extra wright it was bearing. I also noticed a bone starting to protrude out of the outside of my right ankle.
9. My physio said it was because of the way I have been walking putting the wight on my right side. My surgeon and GP said the same thing, It is changing my right foot to the point the bottom of my righty foot is now flat. Alistair my physio wanted to start treating my ankle in the earlier months of the year through the insurance company declined. Having to deal with my spinal injury now ankle injury had made it extra hard for me to get around. After 18 months walking awkwardly my ankle is now at the point that it feels stuck and I cant move my foot up and down. It is painful even when I’m off it. Because of my waddling my right side of my ankle is starting to give way as well. It feels like how the left side did when it stated giving me grief, Sometimes at the end of the day the tips of my toes feel numb, While my ankle often throbs and pulses and the veins are protruding that you can see them beating.”Ms Ensor gave evidence that she had not been troubled by right ankle pain prior to her lumbar spine injury.
Ms Ensor’s evidence that her gait was affected by her lumbar spine injury and she developed a waddling gait is supported by various entries in the clinical notes. Counsel for Lifecare did not take issue with the evidence that Ms Ensor changed her gait in the manner alleged nor did he take issue with her contention that she had not previously experienced right ankle problems. There was no evidence to controvert this assertion.
Ms Ensor’s case is supported by the opinion of Dr Endrey-Walder, the independent medical expert (IME) qualified on behalf of Ms Ensor.
Dr Endrey-Walder saw Ms Ensor and he provided a report dated 16 February 2021.
Ms Ensor reported a consistent history that following her back injury:“she recalled that in the weeks and months to come she had ongoing lower back pain, but especially continued to feel the ‘electric shocks” down her left leg, which made her “walk funny, I couldn’t put any weight on my left leg, I put all the pressure on the right one and I started getting pain on that’s ide (right).”
Dr Endrey-Walder recorded that she told him by November 2019 “I had bad right ankle pain, I waddled”.
34.Dr Endre-Walder conducted a physical examination and recorded positive findings in respect of the right ankle, noting that there was no active ROM.
35.Dr Endrey Walder provided diagnosed plantalar ankylosis and based his whole person impairment (WPI) assessment on that condition.
36.Dr Endrey-Waller recommended radiological investigations of the right ankle.
An MRI scan was performed on 10 May 2021 of the right ankle of which he notes in his report dated:
“The MRI scan of your client’s right ankle (10.5.2021) reports “severe arthrosis at the posterior talo-calcaneal joint associated with multiple surrounding ganglio/synovial cysts…mild Achilles tendinopathy…mild thickening of the plantar fascia.”
38.Given his clinical findings and the results of the radiology, Dr Endrey-Walder assessed 19% WPI right foot on the basis of plantalar ankylosis.
39.Dr Endrey-Walder provided a further report dated 22 July 2021. He acknowledges
Ms Ensor’s pre-existing arthritic changes at the right ankle but says he considers “her significant ongoing symptoms at that joint as being due to aggravation and exacerbation of that condition on account of her abnormal ambulation following the left leg injury of 28 May 2019.” It is not disputed that the this refers to the lumbar spine issues with significant left leg radiculopathy for which she underwent surgery.
40.He goes onto to state:
“I also wish to confirm that I read the article :”evaluating causation for opposite lower limb” referred to by Dr Wallace the IME for Lifecare. Dr Endrey-Walder points out:
‘it is not argued that overload of a limb on account of damage on the contralateral side caused structural derangement in the joints of the unaffected limb.
It is argued however that is there is an underlying condition previously reasonably symptom free, needing no treatment, that such a condition can be rendered symptomatic causing functional impairment on account of the overload.”
41.Counsel for Lifecare submitted that the opinions of Dr Endrey-Walder did not assist Ms Ensor to discharge her onus of proof. He pointed to the first report of Dr Endrey-Walder which he construes as concluding that the diagnosed condition of plantalar ankylosis upon which
Dr Endre-Walder based the WPI assessment resulted from the injury. He says that
Dr Endrey-Walder then alters his opinion in later reports without sufficient explanation. Counsel for Life care submitted:
“Now, Dr Endrey-Walder has provided further opinions, most recently in July of this year in which he appears to have retreated from any conclusion that might be, might have been ascribed to him that the pantalar ankylosis was caused by the alteration in gait that the applicant may have experienced. And you’ll see at page 6 of the late documents there’s a report of his that’s dated the 2nd of July 2021, where, I think the report starts on page 5, rather confusingly he tells us that he found nothing in the documents provided, this is additional reports and statements, nothing in the documents at all to his previous opinion that:
‘Your client’s right ankle injury is consequential to her work related lower back condition.’
That would, on the face of it you would think that he was really embracing the proposition that the pantalar condition was caused by the alteration in the gait but he retreats from that at the conclusion in the penultimate paragraph of this report by saying:
‘It is not argued that the pathology identified is the sole consequence of the overload of the right leg, rather than that overload over a period of time would have rendered such a pre-existing condition significantly problematic, which was not the case prior to your client’s work injury.’
So it’s, it appears that Dr Endrey-Walder has altered the position originally expressed without necessarily acknowledging his concession to retreat to the point where he’s now saying that the pathology is not the sole consequence of the overload of the right leg. Now that still is completely at odds with the original [sic] opinion expressed by
Dr Wallace that the alteration of gait had no causal nexus whatsoever with the pathology identified in the MRI and the x-rays. The shortcoming in the opinion that’s offered by Dr Endrey-Walder is that he is making an assertion that is challenged but he doesn’t provide the reader with any basis upon which he concludes that there’s been any contribution to the pathology from the said overload to the ankle. There’s just no basis upon which you’re in a position to consider the potency of the argument that he presents. In those circumstances my submission is that the applicant has not discharged the onus that is cast upon her in demonstrating the there is a relevant causal nexus between her lumbar injury and pathology and the onset of any symptoms, according to Dr Endrey-Walder, caused by the significant radiological pathology that’s identified in her right ankle. Now, for those reasons this application ought to result in a finding that the consequential condition has not been proven and orders made accordingly. That is my submission.”
To succeed Ms Ensor does not need to establish that the alteration in gait caused a change in the pathology in the ankle. The underlying condition as evidenced by the radiology was, on the evidence, asymptomatic. Ms Ensor says she altered her gait because of the left sided radiculopathy and placed additional weight on her right side. Dr Endrey-Walder explains that her significant ongoing symptoms at that joint as being due to aggravation and exacerbation of that condition on account of her abnormal ambulation following the left leg injury of 28 May 2019”.
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 Ensor to succeed in respect of the consequential condition in the right ankle that she alleges here, to establish “injury” to her right ankle within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her right ankle have resulted from her lumbar spine injury. Here the evidence in support of Ms Ensor’s case is that the underlying condition was aggravated, rendered symptomatic and caused persistent symptoms and restrictions as the evidence from Ms Ensor, supported by the clinical notes and the opinion of Dr Endrey-Walder.
The criticism by counsel for lifecare of Dr Endrey-Walders’s opinion is not fatal to Ms Ensor succeeding. 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 right ankle was consequent upon the lumbar spine injury.
Lifecare relies on the opinion of Dr Wallace, the IME qualified on behalf of the insurer.
Counsel for Lifecare submitted in regard to Dr Wallace’s opinion as follows:
“Dr Raymond Wallace, qualified for the respondent, who in a series of reports made absolutely clear that such a condition could not have resulted from the accepted injury to the applicant’s lumbar spine and he provided a number of reports to that effect. The first of which I wish to direct your attention to is that of the 19th of May, which is not the first of his reports but you’ll find that at page 9 and following of the Reply. He confirms that x-ray examination of the ankle identified osteoarthritis at the hind foot with dorsal loss at the talonavicular joint, which at the top of page 10 of the Reply he makes clear is a constitutional condition, which he accepts may have been aggravated by the applicant’s body weight. But that was the only, they were the only considerations that he considered in that report.
On the 3rd of June 2021, in a report that appears at page 11, I think, of the Reply, he wrote to my instructing solicitor indicating that, in answer to a specific question:
‘Did an altered gait that the applicant may have experienced cause any orthopaedic injury to the right ankle?’
And his conclusion was:
‘She has not suffered an injury to her right ankle as a result of an alteration in gait.’
And he went on to and then reference the American Medical Association Guide to Evaluation of Disease and Injury setting out a quote as to the opinions of those who edited or contributed to that particular publication as to the unsupportable proposition that favouring of one part of the body sets up a condition in another. And that’s the, that’s the medical theory that he advances. In the face of Dr Endrey-Walder’s conclusion of pantalar ankylosis it appeared to be a complete answer and in the supplementary report to which I refer which, and I’m going now to page 13, he makes it clear it’s not medical possible of the adoption of a awkward gait could cause pantalar ankylosis. So, really, that is the opinion of Dr Wallace. It’s been presented for the defence of this Application and that’s the, that’s the proposition to which we point.”
Dr Wallace provided a series of reports dated 24 August 2020, 19 May 2021, 3 June 2021 and 30 June 2021.
In his report dated 24 August 2020, Dr Wallace saw Ms Ensor took a history reviewed radiological investigations of the spine and conducted a physical examination.
He opined that Ms Ensor:
“is currently most likely suffering from inflammatory synovitis at her bilateral ankles with a rupture of the right tibialis posterior tendon vagus unrelated right pes planus.”
He noted no investigations of the ankle were available.
He concluded:
“There is no objective medical evidence that Ms Palmer has suffered any work related injury at her bilateral ankles as a result of her lumbar spinal condition.
Her current bilateral ankle conditions cannot be explained on the basis of alteration in gait related to her lumbar spine condition.”
He considered that her work related spinal injury had resolved. I note in fact the evidence is that Ms Ensor continued with significant symptoms from her spinal injury including significant left sided radiculopathy for which she ultimately underwent surgery paid for by the insurer in October 2020.
With the benefit of the radiological investigations being x-ray of 10 May 2021 and MRI of right ankle, Dr Wallace provided a further report dated 19 May 2021. He opined:
“The pathology demonstrated in the Xray and MRI investigation of the right ankle dated 10 May 2021 is not consequential upon the adoption of an awkward gait resulting from the accepted lumbar spine injury suffered in May 2019.”
Dr Wallace does not consider she is suffering from plantalar ankylosis of the right ankle which is what Dr Endrey Walder had based his assessment of WPI on. I note the basis on which an assessment of WPI is made will be a matter for the MA in the event I am satisfied that a consequential condition in the right ankle has resulted from the lumbar spine injury.
Dr Wallace opined that Ms Ensor’s right ankle symptoms are due to pre-existing degenerative severe osteoarthritis involving the talo-calcaneal joint.
Dr Wallace clearly accepts that there can be aggravation of such an underlying disease because he opines that underlying degenerative osteoarthritis has been “certainly been aggravated by her obesity with a body weight of 120kg”. However, Dr Wallace does not appear to consider that the condition could have been aggravated by additional weight bearing on her right ankle because of her left sided radicular pain. He simply says an awkward gait cannot cause planatalar ankylosis (which he doesn’t think she suffers from in any event) and “there is no other potential pathological condition of the works ankle resulted from the adoption of an awkward gait”. Again, I do not have to find that the altered gait has caused a pathological condition. It is sufficient for example to find that the altered gait has aggravated an underlying condition that was pre-existing but asymptomatic.
Dr Wallace provides a further report dated 20 June 2021 but this relates to whether medication could cause swelling of the ankles.
When I weigh all of the evidence in the balance I prefer the evidence of Ms Ensor that she altered her gait and put more weight on her right leg and hence right ankle because of significant left sided radiculopathy resulting from the lumbar spine injury. This is consistent with various clinical notes and is a consistent history related to the experts whose opinions are in evidence. Counsel for lifecare took no issue in his submissions with Ms Ensor’s evidence that she had to alter her gait taking more wight on her right leg as a result of the lumbar spine injury which caused significant left sided radiculopathy. Ms Ensor gave evidence that she did not previously suffered from right ankle pain. There is no doubt that she has an underlying condition in her right ankle as demonstrated by the x-ray and MRI undertaken in May 2021. I note the first reports from both IMEs did not have the assistance of this radiology. For Ms Ensor to have been held to have suffered a consequential condition in the right ankle I do not have to be satisfied as to pathological change as a result of the consequential condition. It is not necessary for Ms Ensor to succeed in respect of the consequential condition in the right ankle that she alleges here, to establish “injury” to her right ankle within the meaning of section 4 of the 1987 Act but that the symptoms and restrictions in her right ankle have resulted from her lumbar spine injury. When I weigh all of the evidence in the balance I accept the evidence of Ms Ensor that she developed an abnormal gait as a result of her lumbar spine injury caused significant left sided leg pain resulting in her weight bearing more on her right leg and hence ankle. I prefer for the reasons expressed above the opinion of Dr Endrey-Walder that her abnormal gait has aggravated a preciously asymptomatic osteoarthritic condition in the right ankle. When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Ms Ensor suffered a consequential condition in her right ankle as a result of her lumbar spine injury on 28 May 2019. Accordingly the lumbar spine and right lower extremity (right ankle) will be remitted for referral to a MA to assess the degree of whole person impairment, if any, as a result on injury on 28 May 2019. The documents to be referred to the MA are those admitted in these proceedings by consent as set out above. A general order will be made for the payment of medical expenses as it was agreed that such an order would flow from this finding.
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