Firozabady v State of New South Wales (Northern Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Firozabady v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 264
APPLICANT:	Zenat Firozabady
RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
MEMBER:	John Wynyard
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for consequential conditions to right ankle, right knee and lumbar spine for injury to the first MTP joint in 2012; whether applicant had antalgic gait; whether other injuries relevant; Held – 1397 pages of ARD contained confusing and sometimes contradictory evidence; applicant continued at work for a year without treatment after injury until a junior ward doctor at the hospital where she was employed noticed her limping; applicant returned to pre-injury duties after arthrodesis and claim closed; then suffered unrelated injuries for which she was prescribed medication which alleviated her foot symptoms to the extent that she overused her injured foot; remained employed until 2016 but not supplied with recommended boot for another three years; award applicant.
DETERMINATIONS MADE:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 9 June 2012. (b) Matters for assessment: Right lower extremity (foot). TEMSKI / scarring. Digestive system (consequential – see note). Right lower extremity (knee) (consequential). Right lower extremity (ankle) (consequential). Lumbar spine (consequential). (c) Evidence: ARD and attached documents. Application to Admit late documents dated 7 March 2024. Reply and attached documents. Note: The parties agree that the Medical Assessor should apportion (if necessary) the agreed 6% whole person impairment assessed by the gastroenterologists between the subject injury and that of 24 November 2014 (see MAC dated 29 June 2021).

STATEMENT OF REASONS

BACKGROUND

Zenat Firozabady, the applicant, brings an action for lump sum benefits against State of New South Wales (Northern Sydney Local Health District), the respondent in respect of an injury and consequential condition suffered on 9 June 2012.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did Ms Firozabady suffer a consequential condition to her right ankle, right knee or lumbar spine caused by the subject injury?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard on 17 April 2024 in person. The applicant was represented by Mr Craig Tanner of counsel instructed by Ms Christina Dahal. Mr John Gaitanis of counsel appeared for the respondent instructed by Ms Alexandra McCaffre. Jesse Craig appeared for the insurer.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents dated 7 March 2024 for the applicant, and
(c)    Reply and attached documents for the respondent.

Oral evidence

No application was made in respect of oral evidence.

FINDINGS AND REASONS

Evidence

Applicant statements

24 October 2019

Ms Firozabady was born in Iran in 1963 and came to Australia in 2001. She commenced employment with the respondent in about 2004 as an Assistant Nurse working 38 hours per week.
On 6 September 2012 whilst aiding a patient to undergo an x-ray appointment, she noticed that the patient was not correctly positioned on her bed. She asked the wardsman to help her reposition the patient. She had forgotten however that the bed, which was on wheels, did not have its brakes on. As they attempted to move the patient, the wardsman accidently pushed the bed which rolled over her right foot, injuring her right toe and right ankle.
After the injury she self-treated by, bandaging her right toe, applying cream, massage and wearing comfortable shoes. She did not seek any treatment as she thought the injury would heal in its own time.
She was also aware that she needed to work in order to provide for her family.
Ms Firozabady said:[1]
“16. In or around 2013, whilst on a shift at Ryde Hospital, my right foot was giving me exceptional pain, making me limp badly. A hospital doctor commented on my limp and requested that I sit down and let him examine my injury. Once he took off my right shoe, the doctor immediately told me to cease work for the day and get an x-ray of my right foot.”
[1] ARD pages 2-3.
Ms Firozabady was referred for treatment by her general practitioner (GP) Dr Ross White to orthopaedic surgeon Dr Andrew Wines.
On 17 February 2014 she came to surgery with Dr Wines in the form of a right first metatarsophalangeal. This surgery involved the insertion of a plate and screws into her foot and resulted in her being incapable to work for two months.
She said:[2]
“20. After the surgery, I experienced a burning sensation in my toe and had bruising on the base of my foot. I was now unable to wear the same size shoes on both feet as my right foot required a larger size. After the surgery I was unable to put any weight on my right toe, forcing me to weight bare (sic) on my left leg. Due to this altered gait which helped me minimise pain in my right foot I developed severe chronic lower back pain. My lower back pain transferred into radiculopathy of my left leg.”
[2] ARD page 3.
Ms Firozabady said that despite experiencing substantial pain in her right foot, she returned to work on light duties “as it was extremely stressful not having any income flow”.
She continued to be treated by Dr Wines, to whom she complained about her ongoing discomfort in the first metatarsophalangeal joint and her ongoing pain in the right ankle.
Ms Firozabady noted that later in 2014 she injured her right shoulder and neck in an unrelated injury and started taking pain relief medication. This pain relief “indirectly had the affect of masking the pain of my right ankle and resulted in the overuse in my right foot as I believed that it was stronger than it was.”
Ms Firozabady said that in late 2014 she advised the insurer that her foot was not presently causing her pain. She said at [25]:
“At the time of the call, my right foot was resting and I was on strong painkillers for my shoulder injury.”
The insurer then closed the case file, believing that Ms Firozabady had accordingly made a full recovery.
Ms Firozabady said that she was still unable to weight bear on her right leg at that time. She said between the end of 2014 to 2016 she was forced to self-treat her right foot and her lower back injury, as liability for medical treatment had ceased.
By 2016 however the shoulder pain medication was not giving adequate pain relief for Ms Firozabady’s right toe and she sought formal medical treatment.
She underwent an MRI of the hind foot and an ultrasound of her right ankle in November 2016. She saw a podiatrist, Andrew Loveridge on 9 December 2016.
Ms Firozabady said that she was recommended to rest her right foot, to buy a “wound boot” and to see a specialist surgeon.
Ms Firozabady was unable to afford the wound boot which cost $320. She said at [29]:
“I believe this further worsened the condition of my lower back as my gait remained unbalanced. This resulted me in me (sic) experiencing sharp pain in my back when I was undertaking ordinary daily tasks such as bending, sitting and lifting objects. I would continue to limp and walk with a compensated gait, putting further pressure on my lower back and left leg.”
At the date of this statement, October 2019, she had not returned to work. She said:
“…..This is due to my right foot and lower back being constantly painful resulting with me being housebound and unable to walk for longer than 10 minutes.
31. My right ankle never successfully recovered post-surgery. I still experience severe pain, swelling, changes of colour and bruising at the site of my right foot. “
She said she also had lower back pain which was chronic and never returned to the state it was prior to her injury.

Statement 24 January 2024

Ms Firozabady acknowledged her earlier statement. She made this statement under a number of headings, the first being:
“Clarification surrounding the circumstances of my injury.”
Relevantly, she said:
“5. The injuries to my toe, has caused consequential injuries to my right ankle, right knee, and lumbar spine which is still impacting me till this day.
6. Moreover, due to the ongoing pain medication, I also sustained consequential injuries to my gastrointestinal systems.”
Under the heading “consequential injury to the right ankle,” Ms Firozabady then gave some more detail about her return to work about a week after her injury. She said she was encouraged by her manager not to make a claim and was told that she could lose her job if she was to escalate the matter.
She emphasised that during this time she had to limp because of the altered gait on her foot. She said when she returned to work following her surgery with Dr Wines on 7 February 2014, she returned to work on light duties, and then after about four weeks returned to her usual duties working five days a week, eight hours a day.
She said at [11] that she was on her feet eight hours a day “and I was limping during this time.”
She said at [12] that limping caused strain on her ankle which became “swollen, red and turning black and burning. It was so painful for me and it was very tender. At times, I was unable to walk due to how painful it was for me”.
Under the heading “consequential injury to the knee,” Ms Firozabady said at [16] that she started feeling issues with her knee in 2014 “where I underwent an MRI which demonstrated a compression of right C5 nerve root”.
Ms Firozabady said:[3]
“17. Due to my altered gait, I was having to overcompensate with my right knee, and I believe it was deteriorating due to same. Due to walking around my house, and two [sic] and from appointments, and limping from 2014 onwards, I commenced feeling intense pain in my right knee.
18. Three years ago, in or around 2021, I commenced feeling an onset of an intensity of pain in my right knee. My knee will be swollen like a ball and will becoming red and hot at times. I feel a burning sensation in my knee.
19. My knee flares up on numerous occasions. If I stand for too long, my knee flares up. Sometimes the pain is so debilitating, I cannot walk or stand. I will be in too much pain. It causes me much grief.”
[3] ARD page 13.
She treated her knee injury with Nurofen cream and tablets. She said at [21]:
“I have been given morphine patches for my shoulder injury, but this also assists me with my back pain.”
Ms Firozabady also addressed her lumbar spine condition. She said that “in or around 2015” she noticed the onset of back issues. She said:
“22. …Due to my altered gait, I was limping and overcompensating with my left leg and foot. Due to shifting my weight constantly to my left side, I started feeling pain in my lower back.”
She said she had to work eight hours a day, five days a week dealing with 30 patients at a time and assisting six nurses, “limping and feeling constant pain” all the time.
Ms Firozabady said she did not report her back pain because the manager (“Howard”) said he would not look after her if she did report “any” injuries and she was worried about losing her job. She said that she had been attending hydrotherapy for the last three years.
Ms Firozabady then addressed her gastrointestinal problems. I note the agreement that the 6% whole person impairment assessed by each gastroenterologist, Dr Siddarth Sethi and Dr Donald Frommer, is to be apportioned (if necessary) by the Medical Assessor, and accordingly it is not appropriate for further comment to be made.

Dispute notices

Dispute notices were issued. On 11 September 2019 the s 78 notice disputed a consequential injury to the lumbar spine, relying on a report of Dr Nigel Ackroyd, general and vascular surgeon. (No report was lodged from Dr Ackroyd).
On 2 January 2024 a further dispute notice was issued advising that the claim for injury to the right foot was accepted but that the consequential injuries to the right ankle, right knee, back and gastrointestinal system were disputed. The insurer relied on a report by Dr Leicester, orthopaedic surgeon.
Liability for impairment to the digestive system was denied because the insurer did not accept that the entirety of the gastrointestinal impairment was due to the right big toe injury. A significant proportion of Ms Firozabady’s weight gain and analgesic use was due, the notice alleged, to the unrelated injuries to the neck and shoulder and also the unaccepted consequential condition in the right ankle, back and right knee.

MAC 29 June 2021

Ms Firozabady brought proceedings in relation to those unrelated injuries, and a Medical Assessment Certificate dated 29 June 2023 was issued. It showed that the unrelated injuries occurred on 24 November 2014. Those injuries were caused by events whilst Ms Firozabady was working at Ryde Hospital. She was using a slide sheet to position a very heavy patient and whilst pulling the sheet, experienced the onset of pain in her neck and right shoulder.

Dr Ross White, GP

Dr White also wrote a number of reports. He first reported on 12 December 2016 in an application to the insurer for a bone scan to look for evidence of complex regional pain syndrome (CRPS). He confirmed that Ms Firozabady was then unable to work because of the painful and tender condition of the right foot. He noted “she walks with great difficulty”.
In his report of 21 October 2019 Dr White noted that “there had been a considerable improvement with her right foot pain since she has had the boot supplied by Andrew Loveridge, podiatrist”.[4]
[4] ARD page 87.
Dr White wrote a comprehensive report to the applicant’s solicitors. He said on 16 November 2019:[5]
“I am informed that the injury to Mrs Firozabady's foot occurred on 6 Sept 2012. I understand that the injury was managed by another GP, Dr Hamid. I have no copies of notes, correspondence or Workcover certificates issued by Dr Hamid. I do have a copy of a report of an xray of the right foot that was done on Dr Hamid's request at Specialist Medical Imaging on 27 July 2016. I did not do a workcover certificate about this injury until 5 Sept 2016. Mrs Firozabady has told me that she was on restricted duties in a Workcover certificate issued by Dr Hamid when she sustained a subsequent injury affecting her neck and right arm on 24 Nov 2014 /QBE Claim number TF2095911).”
[5] ARD page 88.
Dr White confirmed the history that he had been consulted by the applicant nearly a year after the injury, 12 August 2013, after a junior ward doctor had observed her limping.
After obtaining xrays Dr White referred her to Dr Wines. Dr White’s diagnoses were of firstly, osteoarthritis and osteophyte formation in the right first Metatarsophalangeal (MTP) with persisting pain in the right foot due to osteoarthritis of the small joints of the right med and forefoot after a right MTP arthrodesis.
His second diagnosis was lumbar spine pain due to L2/3 and L3/4 sciatica and facet joint degeneration.
When asked whether the disabilities were consequential on the injuries or treatment, Dr White said:[6]
“While the injury to the foot did not immediately cause the left lumbar back pain and sciatica, the years of walking without a suitable boot for the right foot and without a matching heel height on the left foot has aggravated her lumbar spine having altered the biomechanical of her gait. Mrs Firozabady saw a podiatrist in late 2016 who recommended that she wear a specific boot. I included that recommendation in Workcover certificates from 12 Dec 2016. The boot was not authorised and supplied by the insurer until October 2019, nearly three years later. A suitable left shoe was not authorised and supplied until a few weeks after the right boot was supplied.”
[6] ARD page 89.
Dr White explained his opinion that ongoing pain was a recognised risk from MTP arthrodesis. He referred to some publications on the effect of injury on that toe and to the danger of the onset of arthritis in the adjacent joints.
Dr White said that the first complaint about back pain was on 16 November 2015. He noted that at that time she had ongoing pain from the unrelated injury to the neck and the right arm.
Dr Ackroyd’s opinion was referred to Dr White for comment, as Dr Ackroyd had not accepted that a consequential condition had occurred to the lumbar spine.
Dr White disagreed with Dr Ackroyd’s opinion. He said:[7]
“While the disc degeneration and facet joint degeneration may not have been directly caused by the foot injury, I posit that the years of abnormal gait have caused the back pain and left sciatica to worsen with uneven pressure of the lumbar facet joints and intervertebral foraminae. Since she has recently received the right foot boot and left shoe (as advised by the podiatrist), nearly three years after the initial request to QBE, it is moot if the worsening would have been lessened if the requested aids had been approved back in Nov 2016 when first request….”
[7] ARD page 90.

Dr Farshad, GP

On 23 December 2022 Dr Ella Farshad supplied a letter to the insurer. Dr Farshad was a member of the Crane Road Medical Centre. He said:[8]
“As you know Zenat had x6 falls recently due to bed issues.
She has had severe right knee pain and swelling post last fall. She has been limping since then. ……. As we discussed before re her bed, she needs urgent approval for her bed ASAP to prevent further injuries as her recent knee injury (Complex tear of the medial meniscus and small joint effusion.) is due to her recent fall from bed.”
[8] ARD Page 105.
Dr Farshad wrote a further report on 25 January 2023, addressed to Dr Jane Standen, a pain management specialist. Dr Farshad recounted the history of the subject injury in 2012, and the further injury to the neck and shoulder in 2014. She said relevantly:[9]
“Unfortunately [Ms Firozabady] sustained a knee injury post fall recently that caused Complex tear of the medial meniscus. [Ms Firozabady] has applied for new knee injury claim.”
[9] ARD page 105.

Dr Balalla

Dr Farshad sent Ms Firozabady to an Orthopaedic Surgeon, Dr Bu Balalla. On 23 March 2023 Dr Balalla took a history that Ms Firozabay injured her right foot in 2012, came to surgery with Dr Wines and then “two years later she injured her neck and shoulder, she developed pain in her knee as well at the time. As a result she was provided with a hospital style bed at home. Unfortunately three months ago she fell from this bed and injured her right knee.”

Dr Graeme Mendelsohn

24 April 2019

Dr Mendelsohn, musculoskeletal consultant, was retained as Ms Firozabady’s medico-legal expert. He supplied two reports, and a further report was supplied by Dr Sikander Khan, general surgeon, as Dr Mendelsohn had by then retired.
Dr Mendelsohn’s first report was dated 29 April 2018. Dr Mendelsohn took a consistent history of the injury noting that the mechanism of the injury gave rise to a probability of ankle damage at the same time.[10]
[10] ARD page 41.
Dr Mendelsohn noted that Ms Firozabady did not seek medical attention for her injury and continued to work until “a couple of years later”. She was seen by one of the hospital doctors because she was limping so badly. Dr Mendelsohn noted a fusion of the right first metatarsophalangeal joint in February 2014 and he noted her return to work on light duties where she gradually increased her level of activities to normal duties until the unrelated accident of November 2014.

Dr Mendelsohn noted that Ms Firozabady continued to have problems with her right foot which she described as a “burning sensation over the dorsum and medial aspect of that foot.”
Dr Mendelsohn noted that Ms Firozabady obtained pain relief assistance through the analgesics given for her shoulder and neck injury which helped to a certain extent.
Dr Mendelsohn recorded:[11]
“She said that at this stage as she was not having any symptoms in her foot, the compensation case concerning her foot was closed. She believes that her symptoms had improved, however, only because of rest and analgesics for her shoulder and neck problem.”
[11] ARD page 43.
Dr Mendelsohn noted that when Ms Firozabady began to mobilise after her second injury, she developed increasing pain in her right ankle which became more painful than it had been before. He took a consistent history as to Ms Firozabady’s attendance on a podiatrist and the recommendation to get a special boot which she could not afford.
Dr Mendelsohn noted that as at April 2019 Ms Firozabady was not working nor was she looking for work. The medication made her quite unsteady and she did not believe she was capable of working.
She had a foot stool on which she rested her foot and she complained that she had trouble negotiating stairs because of her foot and ankle when carrying out this type of activity. She told Dr Mendelsohn that she did not walk much because of her shoulder and neck problems.
Dr Mendelsohn recorded[12]:
“…Because of the pain in her right foot and ankle, she said that the gait has affected her low back and left buttock region. It has been getting worse over the last three years or so. ..”
[12] ARD page 44.
In noting restrictions in her activities of daily living, Dr Mendelsohn noted that Ms Firozabady said that these difficulties were partially due to the ongoing neck and shoulder problems and also because of the right ankle and foot problems and the consequential injuries to the back and buttock on the left side.
Dr Mendelsohn noted the investigations and carried out an examination. He said:[13]
“…Mrs Firozabady was genuine and did not appear to be exaggerating the situation”.
[13] ARD page 45.
He noted her weight at 69kg. He recorded that walked slowly with a wide-based gait. There was no swelling or oedema of the right foot and ankle nor was there any no trophic changes and there was no change in colour or temperature.
Dr Mendelsohn diagnosed:[14]
“…crush injury to the right first metatarsophalangeal joint with tenosynovitis of the right ankle. There has been a subsequent soft tissue injury to the lumbar spines. This has been due to altered gait, secondary to the injury to the right foot and ankle.”
[14] ARD page 45.

31 July 2023

Dr Mendelsohn provided a further report on 31 July 2023.
Dr Mendelsohn noted there had been no further injuries since he last saw Ms Firozabady. However, he said:[15]
“…She has, however, developed problems with her right knee, which was not mentioned in my previous report as no history was obtained of any problem with her knee. She said that she had had slight problems when I last saw her but did not mention this.
She has undoubtedly an altered gait because of the injury to her foot and ankle. She believes this has impacted on her right knee, causing the commencement of her symptoms, here. Separately, she was provided through the insurers with a hospital type bed because of her ongoing neck problems and lower back. The bed is mechanically operated. She feels that the bed was too narrow and when she was asleep, she on one occasion fell from the bed, aggravating her right knee. The fall occurred last year but she is not sure of the exact date.
Mrs Firozabady stressed that she already had significant problems with her right knee before the fall out of bed. The knee, however, became more painful after the fall from bed. It was not swollen but was more painful.”
[15] ARD page 51.
Dr Mendelsohn noted Ms Firozabady’s complaint of low back pain for which she wore a soft support belt.
There had been no further treatment for her foot nor for her knee. Dr Mendelsohn noted that a special shoe application to the insurer had not been successful and indeed the insurer had closed her case.
Dr Mendelsohn looked at the updated investigations of the right ankle, foot and right knee. He noted on examination that Ms Firozabady “had evidence of overreaction during the interview and examination was tearful at times.”[16]
[16] ARD page 53.
Again, Dr Mendelsohn noted that Ms Firozabady walked quite slowly “with a wide based gait.”
Dr Mendelsohn’s diagnosis was:[17]
“Mrs Firozabady has suffered a crush injury to her right first metatarsal joint which has required surgical intervention with fixation of plate and screws. She has, subsequent to this, developed tenosynovitis of her right ankle and soft tissue injuries to her lumbar spine as a consequence, I believe, of her altered gait secondary to the injury to her right foot.
Due to her altered gait, I believe that she has also developed problems with her right knee. She has MRI evidence of a meniscus injury and also chondral damage to the joint surfaces.”
[17] ARD page 54.
As to causation Dr Mendelsohn said:[18]
“She has had a direct injury to her right foot at work. There is no doubt of this, and it resulted in the need for surgical intervention. As a consequence of this, her significantly altered gait has caused the inflammatory condition of the tendons of the ankle and would certainly have caused wear and tear on her right knee, resulting in cartilage damage. She has also suffered a consequential injury to her lower back, again because of her altered gait from the initial injury to her right foot.”
[18] ARD page 55.
Dr Mendelsohn also supported Ms Firozabady’s claim regarding her right knee, saying again that her altered gait had been her major problem in initiating these problems.
He said:[19]
“……There is a history obtained of having fallen from her bed, but I feel this is unlikely to have caused significant damage to the cartilage of the knee. She could have temporarily aggravated the situation, more likely. It is difficult to be certain about whether or not she did sustain further injuries to her right knee in the fall from the bed as I could not find any evidence of an MRI of the knee having been carried out prior to that fall. She had undergone an ultrasound which did not comment on any injury to the cartilage, but this does not rule out such injury as an MRI is a far more accurate way of assessing such injury.”
[19] ARD page 55.
On the balance of probabilities Dr Mendelsohn found that any injury caused to her knee by the fall from the bed was of a temporary nature and had now settled.
He said:[20]
“….However, the long term degenerative process in her right knee secondary to her altered gait, has not settled and is continuing.”
[20] ARD page 55.
Dr Mendelsohn reiterated that Ms Firozabady’s right knee problems were consequential to the 2012 injury and not related to the fall from the bed.

Dr Sikander Khan

As noted above the applicant obtained a further qualified opinion from Dr Khan, general surgeon, as Dr Mendelsohn had retired. Leave was granted at the teleconference to rely on this report.
The report’s purpose was to reply to the opinions of the respondent’s medico-legal expert, Dr Leicester. In considering Dr Leicester’s opinion that Ms Firozabady’s altered gait would not cause problems with the ankle, Dr Khan referred to the MRI scan of 8 October 2021 and the finding that there was:
“…chondral wear in the medial margin of patellar dome and a tear of the peroneus brevis tendon with tendonitis and mild scar thickening of the ATFL and the deltoid ligament…… This pathology in the ankle makes it susceptible to change in biodynamics of the right ankle due to limping and injury to her right foot causing aggravation of this condition, causing the ankle problem to become symptomatic and cause disability and impairment. “[21]
[21] ALD pages 1-2.
Dr Leicester gave an opinion that the lumbar spine condition was not in any way related to the “rightful” [right foot] injury, Dr Leicester’s reasoning was that a foot injury or slight limp would not cause degenerative changes.
Dr Khan agreed with that proposition, but observed that the pre-existing degenerative condition made the lumbar spine:
“…susceptible to aggravations due to altered biomechanics arising from the foot injury, transmitted to the axial skeleton due to limping causing abnormal changes in weight transfer between the axial and appendicular skeleton, thereby causing aggravation of your client’s condition in the lumbar spine resulting in impairment.”
With regard to the right knee Dr Khan made the same point. He said that the degenerative condition in the knee made it susceptible to aggravation and that the applicant’s employment and injuries to the right foot and ankle again altered the biodynamics and appeared to have caused aggravation and exacerbation of the right knee condition. Dr Khan noted that the X-ray and ultrasound of the right knee dated 23 November 2021 showed, in addition to pre-existing degenerative changes, changes of aggravation of her right knee condition by way of small effusion in the suprapatellar bursa and changes in the patellofemoral joint consistent with chondromalacia patellae.
Dr Khan thought that the fall from the bed had led to further inflammation and soft tissue trauma which would have led to further aggravation of the chondromalacia patellae.
As to the causal nexus between the injury of 9 June 2012 whether the claimed consequential injuries were caused by it, Dr Khan confirmed that was his opinion. He said:[22]
“This is on the basis that the general nature and conditions of her employment would have led to a degree of acceleration of a constitutional degenerative condition in these areas but the injury to the foot has led to a chain of altered biodynamics in the right lower extremity transmitted up the right leg and to the vertebral column, thereby causing injury and aggravation and impairment in her right ankle, knee and back as noted above.”
[22] ALD page 3.

Dr Siddarth Sethi

Dr Siddarth Sethi, consultant gastroenterologist and hepatologist, reported on 5 September 2023 as the qualified expert for the applicant. I make no comment in view of the above agreement reached between the parties.

Dr Donald Frommer

Dr Frommer, gastroenterologist and hepatologist reported on 30 November 2023 for the respondent. His position was similar to that of Dr Sethi and he found 6% whole person impairment as a result of her condition.

Dr Andrew Wines, orthopaedic surgeon

The applicant lodged a number of reports from Dr Wines. On 19 September 2013[23] Dr Wines noted that Ms Firozabady, apart from her difficulty with the big toe, was “otherwise well, not on regular medications and has no known allergies.” He noted that Ms Firozabady “mobilised without a limp”.
[23] ARD page 70.
His sequential reports describe the subsequent surgery on 7 February 2014 and the applicant’s recovery. In his report of 25 June 2014 Dr Wines noted that it was nearly four months since the surgery and that Ms Firozabady was coming along well. On examination he said:
“Ms Firozabady mobilised without a limp”.
On 30 June 2014 Dr Wines noted that Ms Firozabady was keen to return to light work.
When he saw her again on 21 August 2014, again Dr Wines noted that Ms Firozabady mobilised “without a limp”.
On 25 September 2014 Dr Wines again noted that on examination Ms Firozabady mobilised without a limp.
Again, on 7 November 2016 when Dr Wines reviewed Ms Firozabady he noted that she again mobilised “without a limp.”

Mr Loveridge

Mr Andrew Loveridge wrote a report to Dr White on 17 October 2019.[24] He stated he had last seen Ms Firozabady in 2017 and she had had not had any treatment in that period.
[24] ARD page 96.
He noted “She also states her left lower back and gluteal region has become painful since compensating for the right foot.”
He noted that a medium height wound boot was fitted and he recommended using the boot everyday with a low heeled shoe on the left foot.

Dr Andrew Leicester

Dr Leicester, orthopaedic surgeon, wrote two opinions for the respondent. On 30 November 2023 Dr Leicester took a consistent history of both the subject injury and the unrelated November 2014 injury.
On examination Dr Leicester noted that the “applicant walks with a slightly antalgic gait”.[25] As to diagnosis, Dr Leicester noted an injury to the right big toe in 2012 which he thought may have been the aggravation of degenerative change, which subsequently required the joint arthrodesis.
[25] Reply page 29.
Dr Leicester said:
“There are a number of clinical features on examination of spine and her right knee that could not be explained on an anatomic basis as suggested exaggeration of her symptoms.”
As to the right knee Dr Leicester said:
“Ms Firozabady describes the injury to her right knee in which she fell out of bed.”
He noted the pathology found in the right knee which he said was:
“…not likely to be related to her work injuries. Again, there are clinical features which cannot be explained on an anatomic basis. for example, there is no reason why light percussion of the skin should cause aggravation of knee pain. Similarly, her range of motion when being examined formally was significantly different to that during informal observation. I would not agree that there has been any consequential injury to her knee as a result of her foot injury. There is no reason why gait abnormality should cause degenerative arthritis and a degenerative tear of her medium meniscus.”[26]
[26] Reply page 31.
Dr Leicester thought that the symptoms described by the applicant were no more than you would normally expect for a 12 years post foot arthrodesis.[27]
“Ms Firozabady's symptoms are more than I would normally expect for 12 years post foot arthrodesis. Similarly, her complaints of neck and back pain are more than I would normally expect some 10 years exactly since her back injury. She is likely to have some degenerative changes in the spine which are not related to her work injury. There are major differences between formal and informal examination, which would suggest an element of exaggeration.”
[27] Reply page 31.
When asked whether the right knee and lumbar spine conditions were consequential to the right foot injury, Dr Leicester said:[28]
“In my opinion, the alleged right knee injury and lumbar spine condition are not in any way related to the accepted right foot injury of 06/09/2012. As previously stated, there are a number of inconsistencies in her examination. There is no reason why a foot injury or a slight limp would cause degenerative change in the right knee or the lumbar or cervical spines.”
[28] Reply page 31.
Dr Leicester disagreed with Dr Mendelson as to why Ms Firozabady’s altered gait would cause problems with her ankle, her knee or her spine.
Dr Leicester issued a further report on 17 January 2024. He disagreed with Dr Mendelson’s diagnosis of tenosynovitis in the right ankle.
Whilst clinically, Dr Leicester said, Ms Firozabady had some sensitivity of her scar and some tenderness on the medial side of the foot, there was no tenderness on the lateral aspect of the ankle. A split in the peroneus longus tendon found on MRI was said to be an incidental finding, as the tendon was on the lateral side of the foot and not the medial side. Dr Leicester noted that there was no complaint of tenderness on the lateral side of the foot.
Dr Leicester doubted that the successful arthrodesis of the big toe would normally cause significant alteration to the gait. Dr Leicester thought that the arthrodesis was a relatively common surgical procedure “and would not generally result in a significant gait of abnormality”.[29]
[29] Reply page 36.
Dr Leicester was unable to find any objective evidence of ankle pathology and said that a successful big toe fusion would normally result in excellent function and excellent relief of pain.

Earlier complaints

Amongst clinical notes produced from Ryde Hospital was an entry dated 12 July 2007 which noted an attendance on the Emergency Department by the applicant complaining of an inversion injury to the left ankle.[30]
[30] ARD page 427.
Clinical notes from the Royal North Shore Hospital dated 14 October 2007 detailed an attendance by the applicant after she had suffered an injury at work tending a patient. The complaints noted concerned the “(R) leg pain + back pain .” [31]
[31] ARD page 429.
The Ryde Hospital notes showed a further attendance by the applicant on 11 March 2009 following another incident at work when she twisted her back as she was attempting to catch a man from falling down. the presenting problem was described as “R lower back pain.” The diagnosis given in the notes was of a “back strain / sprain.”[32]

SUBMISSIONS

[32] ARD page 484.

Mt Tanner

Mr Tanner noted that the insurer had accepted the injury to the foot. The question for determination was whether Ms Firozabady had injured her ankle at the same time and whether she suffered consequential injuries to her right ankle, right knee and the lumbar spine. So far as the digestive tract was concerned, Mr Tanner said that both experts agreed that it was a matter for the Medical Assessor to apportion between the two injuries.
Mr Tanner referred to the relevant parts of Ms Firozabady’s two statements, emphasising that the applicant’s limping was a crucial factor and apparent all the way through the evidence. He referred to Ms Firozabady’s second statement that in 2015 she was working full time whilst limping and feeling constant pain but was afraid to report it to her manager for fear of losing her job.
Mr Tanner said the distinguishing factor in the specialist evidence between the two sides was that Dr Leicester denied that an altered gait would cause the Ms Firozabady’s problems in any event, but that in fact she had no altered gait.
Mr Tanner relied on the reports of Dr Mendelson. He referred to the colour changes noted on examination in the right foot on 29 April 2019. He relied on Dr Mendelsohn’s diagnosis of the development of right ankle tenosynovitis and lumbar spine symptomatology as a consequence of her altered gait, which also caused right knee problems.
With regard to the episode when she fell from her bed, Mr Tanner submitted that I would accept Dr Mendelson’s opinion that the sequelae from that event caused only a temporary aggravation.
Mr Tanner submitted that there was support for opinions of Dr Wines and indeed the general practitioner, Dr White who noted that Ms Firozabady was walking “with great difficulty” on 12 December 2016.
Dr White’s longer report to the applicant’s solicitors showed support for Ms Firozabady over a long period of time. It was further confirmation that the applicant’s complaints were caused by the subject injury. He noted that the lumbar spine was included by implication.
The report of Dr Khan Mr Tanner submitted made it inescapable that the altered gait was a cause of the ankle condition.
Mr Tanner submitted that that I would not be persuaded by the report of Dr Leicester.
Mr Tanner submitted that Dr Leicester simply did not accept that an altered gait could cause these difficulties. Dr Leicester did not suggest, for instance, that the falls from the bed were responsible and given the standard of proof required to establish a consequential condition, Dr Leicester’s opinion did not have enough weight to overcome the applicant’s case.

Mr Gaitanis

Mr Gaitanis agreed that there was a “low bar” on proof of consequential condition, but observed that the onus nonetheless remained on the applicant, who still had to establish that her case accorded with commonsense.
Mr Gaitanis noted that the thrust of the case as advocated by Dr White and others was that it was the abnormal gait that was responsible for the consequential condition of the spine.
However, much of that case was “highly speculative” and there were, Mr Gaitanis said, other possible causes for her various conditions. He referenced as an example the injuries to the right shoulder and neck on 24 November 2014, saying that it was equally speculative to say that it was the cause of the lumbar condition.

Mr Gaitanis said that between the subject injury on 6 September 2012 and the second unrelated injury of 24 November 2014 there was no contemporaneous support for the claim that whilst Ms Firozabady was back at work doing full time duties, and after her claim had been closed, that she was walking with an antalgic gait.
Mr Gaitanis referred to the ARD form which described the injury and to Ms Firozabady’s statements in submitting that the ankle condition was now presented as a consequential condition rather than a frank injury as it seemed to be described in that material.
Mr Gaitanis submitted that the onus was on the applicant to demonstrate that the explanation for her disputed injuries was simply the altered gait.
In the case of the lumbar spine, the clinical notes from Royal North Shore Hospital on 14 October 2007 showed complaints by the applicant of right leg pain and back pain following injury at work. Similarly, Mr Gaitanis submitted, the clinical notes from Ryde Hospital showed that the applicant complained of right lower back pain following a similar injury at work – both attendances being after Ms Firozabady had attempted to catch a falling patient.
The applicant’s case was accordingly compromised, Mr Gaitanis submitted, as her case now was that the lumbar claim was consequential to the right toe injury, whereas in 2007 and 2009 there had been injuries to the back during work.
He said that Dr Leicester did not have that history, and it was significant that the applicant had failed to mention these injuries to anyone, especially in view of the fact that the lumbar condition was said to be consequential to the toe injury.
So far as the right knee was concerned, Mr Gaitanis referred to an entry in the physiotherapy records dated 23 April 2018.[33] The entry recorded a fall on 21 April 2018 in the laundry whilst the applicant was walking down stairs. Ms Firozabady was found not to have any bruising or tenderness in the lumbar spine, but a right knee “graze” was recorded.
[33] ARD page 1,284.
Mr Gaitanis also referred to the entry by Dr Farshad of 23 December 2022 that Ms Firozabady had experienced six falls recently due to “bed issues”.
Mr Gaitanis also referred to the report of Dr Balalla of 23 March 2023, who had taken a history that two years after her accident, the applicant had injured her neck and shoulder and developed pain in her knee at the same time. The report of Dr Balalla stated that the knee injury occurred at the time of the injury of November 2014.
Mr Gaitanis said that therefore there was a history taken of right knee pain that was not related to the subject injury two years before. It was in a statement, Mr Gaitanis submitted, that the right knee injury occurred at the same time as the unrelated injuries of 24 November 2014.
Mr Gaitanis referred to the three reports of Dr Wines following the arthrodesis in February 2014 in which Dr Wines expressly found on examination that there was no limp. Mr Gaitanis said there was no support for the suggestion that Ms Firozabady had an antalgic limp between 2012 and 2014 when she suffered her second injury.
He submitted that the medical opinions that antalgic gait was present from 2012 was simply speculation.
Mr Gaitanis referred to Dr Wine’s comments on 25 September 2017, 7 November 2016 that the applicant was mobilising without limping.
Mr Gaitanis referred to the applicant’s own statement that in the time between 2012 and 2014 she was working full duties for eight hours a day, five days a week on her feet most of that time. It was possible to infer that the applicant’s case was simply cherry picked the altered gait out of the medical evidence to establish a consequential condition when Mr Gaitanis said it was equally possible that she might have been injured by a nature and conditions claim.
Mr Gaitanis then made submissions regarding the claim for right ankle. He referred to the inconsistencies reported by Dr Leicester between formal and informal examination of the right ankle, and Dr Leicester’s opinion that her subtalar joint movement on relaxation was the same as her left ankle. This opinion, Mr Gaitanis submitted, was the same as that of Dr Wines.
Mr Gaitanis submitted that Dr Leicester’s opinion that the tenosynovitis of the right ankle diagnosed by Dr Mendelsohn was based on an incidental finding in the MRI scan had some probative weight, and that there was in fact no tenosynovitis present. Mr Gaitanis submitted that Dr Leicester’s opinion should be preferred that the arthrodesis of the big toe had been successful and that therefore it would not have caused significant alteration in gait.
Mr Gaitanis referred to the examination findings by Dr Mendelsohn that there was only 5° extension possible at the right ankle, and no inversion or eversion. Mr Gaitanis submitted that this was inconsistent with Dr Leicester’s examination. Dr Leicester found that Ms Firozabady exaggerated her symptoms. This was again evident in Dr Leicester’s examination where he found a normal lumbar lordosis but noted complaints of tenderness and pain with the lightest percussion of the skin.
In any event an inference was available that her ankle condition had been caused when she was mobilising following the 2014 injury. Mr Gaitanis submitted that I would accept Dr Leicester’s view that there was no relationship between the foot injury and the onset of symptoms in right knee all lumbar spine.
Mr Gaitanis referred to an entry in what appeared to be the clinical notes of a Dr Gronow of 23 April 2018 which described a fall in the laundry whilst walking down stairs. Mr Gaitanis said that he raised this entry and others because findings of fact had to be made and the applicant had supplied only inexact proof. Mr Gaitanis referred to the Briginshaw test, saying that I would not have a sense of persuasion about Ms Firozabady’s case.

Mr Tanner in reply

Mr Tanner submitted that Ms Firozabady had support from many medical practitioners, and there had been no critical analysis made by the respondent of their opinions. Common sense would confirm that an antalgic gait would alter the biodynamics which would impact on other body parts, he said.
Mr Gaitanis put forward a number of theories, Mr Tanner submitted, but they were unsupported by medical opinion and of no value. The suggestion that this might have been a nature and conditions claim travelled nowhere, as it had not been alleged. Mr Gaitanis had gone through the 1,397 pages of the ARD in search of assistance, Mr Tanner said, and had found “two needles in the haystack,” neither of which were of probative. The hospital entries of 2007 and 2009 related to five and three years earlier respectively, and neither was relevant, Mr Tanner submitted. There had been no suggestion that those hospital visits had required any follow up – and Ms Firozabady was performing her usual pre-injury duties at the time of the subject injury. Moreover, Mr Tanner argued, the later 2018 entry related only to a knee graze.
Mr Tanner said that the applicant did not have to establish that her employment had been the main contributing factor, as she was claiming that she had suffered a consequential condition to her right knee.
The submission that the applicant had not established that she had an altered gait between 2012 and 2014 was based on observations by the treating surgeon Dr Wines that she was not limping when he saw her after surgery. Mr Tanner referred to the operation report itself and submitted that Ms Firozabady “certainly” would have been limping following the arthrodesis. In any event, there was no challenge to the applicant’s statement that it was her limping at work that attracted the attention of a hospital doctor in 2013.
Dr Balalla’s opinion did not assist the respondent, as it was written well after the relevant events. Mr Gaitanis’ submission that the right knee injury arose following the shoulder injury was no more than a theory, untroubled by any supporting medical evidence.
Mr Tanner noted that the main attack of the respondent’s submission regarding the ankle condition was based on Dr Leicester’s reservations about her presentation when being examined.

DISCUSSION

The basis of Ms Firozabady’s claim is that her alleged consequential injuries occurred in some way or other because of the altered gait that her accepted right foot injury had caused. There is no contemporaneous evidence as to her condition between the date of injury, 9 June 2012, which I note her GP Dr White gave as 6 September 2012, as did the applicant in [11] of her statement of 24 October 2019. Nothing turns on this inconsistency, but it does illustrate that Ms Firozabady does not have any contemporaneous support until the report of Dr White dated 16 November 2019, which advised that he first saw her on 12 August 2013. In that report Dr White stated that to his knowledge when the injury occurred it was managed by another GP Dr Hamid, but there were no notes, correspondence or certificates issued by him.
Dr White related that in the week before 12 August 2013 a junior ward doctor had observed Ms Firozabady limping while she was at work at Ryde Hospital. An X-ray was taken there on 7 August 2013. Dr White referred Ms Firozabady to Dr Wines who advised that she had moderately advanced osteoarthritis of the right first MTP joint.
This history was confirmed by Ms Firozabady in her statement of 24 October 2019. She explained that a wheeled bed carrying a patient had run over her foot, as she had forgotten to apply the brake. She confirmed that she did not receive formal treatment until the junior ward doctor examined her on 7 August 2013. Her account that she managed in the meantime by bandaging her toe and self-treating it, has not been challenged and I accept that Ms Firozabady was limping as a result of the injury. The fact that she worked on for about a year with this disability demonstrates that she was a hard worker with a stoic disposition. I note she commenced with the respondent as an assistant nurse in 2004.
However, the respondent has sought to question the extent and duration of the antalgic gait. Dr Andrew Wines noted when he first saw Ms Firozabady on 19 September 2013 that she “mobilised without a limp.” Although he advised her on 22 January 2014[34] that she would “mobilise heel weight-bearing for six weeks and that full recovery will take in the vicinity of six months” following the surgery, Dr Wines noted that after the surgery on 7 February 2014 that she “mobilised without a limp” on 25 June 2014, 21 August 2014, 25 September 2014 and again on 7 November 2016. The respondent relied on this evidence in an attempt to cast doubt on Ms Firozabady’s case that the claimed consequential conditions had been caused by a continuing altered gait.
[34] ARD page 71.
In her first statement Ms Firozabady made it quite plain that following the surgery she had difficulty in wearing shoes – and indeed that she had to wear a larger size shoe on her right foot – which did cause her to walk with an altered gait. However, by 30 June 2014 Dr Wines issued a certificate clearing her for a return to light work duties.[35]
[35] ARD page 76.
In her second statement, Ms Firozabady said that on her return to work she worked for about four weeks on light duties, and then returned to her usual duties working five days a week, eight hours a day. She said she was “limping during this time.” She was on her feet eight hours a day she said and it was this that caused her ankle to become swollen and painful and so tender at times that she was unable to walk.
Dr Wines’ last report was dated 7 November 2016, and he again reported, as indicated, that Ms Firozabady was mobilising without a limp. However, Dr White on 12 December 2016 reported that Ms Firozabady ws unable to work because of her right foot which “has become very painful and tender and she walks with great difficulty.” It is difficult to reconcile the two reports written only weeks apart, notwithstanding that they concerned her presentation some four years after the arthredosis.
Dr White, who first saw Ms Firozabady on 12 August 2013 made no mention of whether the applicant limped or not, and I was not referred to any contemporaneous clinical notes.
Dr Mendelsohn in his reports of 24 September 2019 and 31 July 2023 noted that Ms Firozabady walked slowly with a wide-based gait.
This potentially contradictory evidence was relied on by the respondent to query whether Ms Firozabady had met her onus.
A further relevant event was referred to by Ms Firozabady in her first statement when she said that “later in 2014” she injured her right shoulder and neck in an “unrelated” injury. She gave no further details and did not mention this event in her second statement. However, she lodged the Medical Assessment Certificate dated 29 June 2021 in which she claimed for the injuries she had sustained.
The date of the injury was there indicated as 24 November 2014, and she claimed compensation for impairment to her cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder).
A third event occurred at a later time, when Ms Firozabady fell out of the hospital bed that apparently the insurer had supplied for her. In their letter of instructions to Dr Khan, Ms Firozabady's solicitors, the following appeared:
“Dr Leicester notes that our client suffered injury to her right knee when falling out of bed. We refer you to the client's statement regarding same…”
A perusal of Ms Firozabady’s statements demonstrated no reference to this event. It was first reported by Dr Ella Farshad on 23 December 2022, who recounted a history of “x6 falls recently due to bed issues,” the last fall causing severe right knee pain and swelling. Dr Farshad noted that an MRI of the right knee revealed a complex tear of the medial meniscus and a small joint effusion. In her report of 25 January 2023, Dr Farshad repeated that the knee injury was sustained “post fall recently.”
Dr Farshad practiced from the Crane Road Medical Centre in Castle Hill. In her report of 14 May 2023 she advised that she initially reviewed Ms Firozabady on 7 September 2021. Dr White practised from rooms in Eastwood, his last report being dated 16 November 2019, so I infer that Ms Firozabady changed her GP sometime between those two years.
Dr Mendelsohn, who first assessed Ms Firozabady on 29 April 2019, noted a “further history” in his second report of 31 July 2023. He noted that Ms Firozabady did not mention any knee problems in 2019. She said she had “slight problems,” but did not mention them.
Dr Mendelsohn took a history of the fall from the bed which she was told had been supplied by the insurer because of the neck and lower back problems. It was apparently mechanically operated and so narrow that when she was asleep she fell from it. The fall occurred sometime in 2022, although she was not sure of the exact date.
Dr Mendelsohn accepted Ms Firozabady’s account that “she already had significant problems with a right knee before the fall out of bed.” This is not consistent with his earlier statement that Ms Firozabady told him that she had only “slight problems” when she saw him in 2019, and did not mention them.
Nonetheless, Dr Mendelsohn found that the altered gait had caused the development of problems in Ms Firozabady‘s right knee. He said that the “significantly altered gait” would “certainly” have caused wear and tear on the right knee.
For the respondent, Dr Leicester in his report of 30 November 2023 was asked to comment on Dr Mendelsohn’s opinion. He noted that there was some degenerative change in the right knee and “a degenerative tear of medial meniscus.” His view was that this pathology was “not likely to be related to her work injuries.” His explanation for that opinion was that he found Ms Firozabady’s presentation could not be explained on an anatomic basis, and that inconsistencies he noted on examination confirmed that the right knee and the lumbar spine condition were not related to the subject injury.
Dr Leicester gave his opinion that there was no reason why gait abnormality would cause degenerative change in the right knee or the lumbar spine, or indeed cause degenerative arthritis or a degenerative tear in the medial meniscus.
Dr Khan’s report of 5 March 2024 considered Dr Leicester’s opinions. Dr Khan said that whilst degenerative changes in the knee were not related to her workplace injuries, they were certainly susceptible to aggravation. The injuries at caused altered biodynamics which had caused aggravation and exacerbation of the right knee condition. The fall from the bed, Dr Khan advised, would have led to further inflammation and aggravation.
With regard to the right knee claim, although Ms Firozabady did not mention it when she first saw Dr Mendelsohn, and although she did not mention in her statement the falls from her bed, the last of which caused a complaint of pain in the knee, she has support for prior complaints in the form of the earlier investigations of her knee. They were referred to in Dr Mendelsohn’s report of 31 July 2023, and they showed that an X-ray and ultrasound of her right knee on 23 November 2021 showed that she was suffering from chondromalacia patella. She also had a small effusion in the suprapatellar bursa. An ultrasound of the right knee on 19 December 2022 again showed the small suprapatellar bursal effusion. However the MRI of the right knee of 21 December 2022, organised by Dr Farshad following the last fall from the bed (which caused the complaints of severe right knee pain and swelling), showed the presence of a complex tear of the medial meniscus.
It can therefore be accepted that Mr Firozabady was suffering from pathology in the right knee prior to the fall from the bed, which I infer occurred in late 2022 in view of the date of the MRI.
The next issue therefore is whether Ms Firozabady may be accepted when she said that she is suffered from an antalgic gait as a result of her injury on 9 June 2012. Dr Leicester appeared to accept that there may have been a “slight limp” but that it would not cause degenerative change in the right knee or the lumbar spine. I accept of course Dr Khan’s opinion that whilst degeneration is not linked to employment, employment can certainly aggravate pre-existing degenerative change. That possibility was not traversed by Dr Leicester and it does accord with common sense that if a person has an antalgic gait over a period of time it will cause an alteration in the biodynamics.
I accept Dr Khan’s opinion as to the mechanism of the development of the condition as claimed. Mr Gaitanis submitted that the applicant could have bought a nature and conditions claim, but that is, with respect, a misreading of what Dr Khan had to say. He said that the general nature and conditions of employment “would have led” to a degree of acceleration of constitutional degenerative condition in the right ankle right knee and back, however he said, and I accept, that the injury to the foot has “led to a chain of altered biodynamics in the right lower extremity transmitted up the right leg and to the vertebral column, thereby causing injury and aggravation and impairment in her right ankle, knee and back…”
I do not accept Mr Gaitanis’s theory that somehow the three isolated entries in 2007 and 2009 have any relevance. Ms Firozabady rolled her left ankle in July 2007 and in October 2007 complaint about right leg and back pain. The further entry was in March 2009 and also related to back pain. Mr Gaitanis noted that these events were not reported to Dr Leicester and invited a sinister inference to be drawn from it. I note that these entries were not mentioned to anybody else either. There was no suggestion in any of the medicine that any of these complaints were relevant to the subject injury, and it is unremarkable that Ms Firozabady would seek treatment within the hospital where she was working.
If Ms Firozabady is correct that she had to deal with an antalgic gait, then the aggravation to her lumbar spine also has support from Dr Khan and Dr Mendelsohn. I note also Dr White’s opinion to the same effect, which is that the years of walking without a suitable boot for her right foot aggravated the degenerative changes in her lumbar spine. At the time Ms Firozabady saw Dr Mendelsohn in April 2019 she was complaining that a right foot was painful whenever she stood or walked. It became swollen and would change colour if she continued to walk. Her ankle became swollen and painful, and it was her view that her altered gait had affected her low back. At that stage, almost seven years after the injury, she had not been supplied with the special boot recommended by Mr Loveridge. Ms Firozabady was finally supplied with a medium height wound boot by the date of Mr Loveridge’s report on 17 October 2019.

I accept that, if Ms Firozabady had indeed been walking with an antalgic gait over that period of time, it would have aggravated the degenerative changes in her right ankle, right knee and lower back.
With regard to the right ankle, Dr Leicester noted “minor degenerative changes” and that MRI scanning showed a split of the peroneous brevis tendon, which he thought was an incidental finding. Dr Leicester drew attention to the difference between formally examining the ankle and subtalar movement and informal examination thereof, which amounted to a difference of at least 20°. Dr Leicester said that he “did not have the impression” that Ms Firozabady was complying with his requests regarding ankle range of motion.
Some inconsistency by a claimant who knows that he/she is being examined in a medico legal environment is not an unknown occurrence. Claimants do sometimes overreact or exaggerate when being formally examined, which may be due to nervousness or apprehension as to the process, and which may also be informed by their knowledge that there are financial considerations involved. This however is no reason of itself to dismiss a claimant’s presentation as being without any clinical relevance. Dr Leicester did not adequately address the detail of the investigations that were before him and I find his opinion to be of less probative weight than those of Dr Mendelsohn and Dr Khan.
The issue is thus as to whether Ms Firozabady indeed had an antalgic gait as a result of the subject injury. Ms Firozabady said in her statement of 24 October 2019 that Dr Wines noted that she was still experiencing discomfort and her first metatarsophalangeal joint and experiencing ongoing pain in her right ankle where there was tenderness along the anterior tendon with swelling In August 2014. This was confirmed in Dr Wines’ report of 21 August 2014 which reported “minimal residual discomfort” in the MTP joint, although “has ongoing discomfort over the anterior aspect of her right ankle.”
Ms Firozabady did not in her first statement state that she was walking with an antalgic gait following her injury to the shoulder and cervical spine in November 2014. Rather, she said that the pain relief medication she took for the right shoulder and neck pain had the effect of masking the pain in her right ankle, so that she was overusing it in the belief that it was stronger than it was. It was this perception that led her to return to work on a full-time basis and to the insurer closing her claim, as she told them that her right foot was not causing her pain. Although Mr Firozabady said that her pain was masked by the medication she was taking for her unrelated injuries, she did say that the insurer closing the case “despite me being unable to weight bear on my right leg.”
It was not until 2016, Ms Firozabady said that the shoulder pain medication was no longer providing her with sufficient relief and she sought medical treatment once again. This resulted in an MRI being taken on 11 November 2016 of her right hind foot which Dr Mendelsohn noted as showing “early chondral changes in the ankle joint with synovitis and perineal tendinopathy.”[36] Ms Firozabady also said that a right ankle ultrasound was taken on 7 December 2016 and again Dr Mendelsohn confirmed that it showed “thickening of the peroneus brevis tendon and tendinosis of the peroneus longus” together with “thickening of the ATFL and CFL fibres consistent with chronic scarring.”
[36] ARD page 44.
It was because of this pathology that Ms Firozabady was referred to Mr Andrew Loveridge, the podiatrist. His 2019 report stated that he had not seen Ms Firozabady since 2017 and, as indicated above, she had only recently been supplied with the special boot. Dr White confirmed that “a podiatrist” (presumably Mr Loveridge) had recommended in “late 2016” that she be supplied with a special boot, which Dr White noted was not supplied until October 2019, three years later.
In her second statement of 24 January 2024 Ms Firozabady stated that when she was working before her surgery in February 2014, due to the altered gait on her foot she had to walk with a limp. After the surgery when she returned to full duties she was on her feet for eight hours a day, and limping during this time. The limping caused her ankle to become swollen, red, turning black and burning. She said it was very tender and at times she was unable to walk.
She said that she started feeling “issues with my knee” in 2014 which consisted of intense pain due to walking around her house and to and from her appointments, and her limping. As noted above, she did not refer to the problems she had falling out of her bed, but rather said that “about three years ago”, in or around 2021, she commenced feeling “an intensity of pain” in the right knee.
She said that she began to have symptoms in her lumbar spine “in or around 2015” which again was “due to my altered gait.” She said that she was scared to report her back pain because her manager, Howard, would not look after her if she did report her injuries, and she was scared of losing her job. I note that no statement has been put on by “Howard” and that I can therefore accept that evidence.
I note further that Ms Firozabady said that she had to sleep on the couch for about seven years because of her condition which, although no evidence about the supply of the bed by the insurer has been lodged, I accept as being the reason the bed was supplied.
This case has not been without its contradictions and inconsistencies. However, taking the evidence as a whole, it seems that following the occurrence of the injury on 9 June 2012 (with the reservations expressed above as to the accurate date) Ms Firozabady continued to perform her usual duties as the only assistant to 6 registered nurses caring for 30 patients, after a week off. In her second statement she said that she did not want to aggravate her manager, but I also accept her first statement that she thought the injury would heal in its own time and that she needed to work in order to provide for her family.
It is unlikely that an orthopaedic surgeon in his professional capacity would make a statement of fact in his opinion, if it were not accurate, and thus Dr Wines’ observations during 2014 following the arthrodesis must be accepted that, when he saw Ms Firozabady on the three occasions in 2014 and again in November 2016, that indeed Ms Firozabady did present without a limp. The 2014 observations were consistent with the history that Ms Firozabady did get back to work on full duties, and that the insurer closed its file. I note Ms Firozabady’s first statement that the file was closed because at the time she spoke with the insurer the medication she was taking for her right shoulder and neck symptoms was also masking the pain in her right ankle and allowing her to overuse her right foot as a result.
There is some contradiction in Ms Firozabady’s reliance on the medication she was receiving for her unrelated injuries, as they did not occur until 24 November 2014. Ms Firozabady’s first statement that when the insurer closed its file regarding the subject injury, medication and treatment for her foot ceased. Her statement that this occurred “in or around the end of 2014” has not been contradicted. In those circumstances, I read the comment that “between the end of 2014-16, I was then forced to self-treat my right foot and lower back injury” as meaning that she relied on the medication for her shoulder pain to enable her to work her full duties, which presumably did not require her to limp as it resulted in the overuse of the right foot that she reported. It is not clear, but it would seem that Ms Firozabady was treated by medication following the arthrodesis, as Dr Wines recommended topical anti-inflammatory medication and physiotherapy in August 2014.
In that context, the relevance of the antalgic gait becomes clearer, as it appears to relate to the time from when she lost her job to when she finally got the special boot in October 2019 – that is to say, a period of three years.
I have placed emphasis on Ms Firozabady’s first statement, as her statement of 24 January 2024 was clearly made with the assistance of her solicitors, and regrettably became marked by advocacy. Phrases such as “it is important to note,” and “the injuries to my toe, has caused consequential injuries to my right ankle, right knee, and lumbar spine…” were conclusive and accordingly unhelpful. The “clarification” made with respect to each of the claimed consequential conditions did not advance Ms Firozabady’s case so much as confuse it, with respect. No attempt was made to explain Dr Wines’ unequivocal finding as to the lack of any antalgic gait when he saw her in 2014. Indeed her statement that she was “limping during this time” when she was doing her preinjury duties was compromised to an extent by her statement of 24 October 2019 that the pain relief medication masked the pain in her right ankle so that she overused her right foot, rather than that she favoured it. As I have indicated, even her first statement does not clearly explain whether she was limping between the surgery of 7 February 2014 and the occurrence of the second injury in November 2014, nor does it give any clarity as to when the insurer closed its file in 2014 with regard to the subject injury.
Mr Gaitanis submitted quite properly that although there was a “low bar” as to proof of consequential conditions, the onus nonetheless remained on the applicant to establish that she had developed them.
I am satisfied that the condition of Ms Firozabady’s right ankle, right knee and lumbar spine were consequential on the subject injury to her first MTP joint in 2012. I think it likely that Ms Firozabady’s injury did lead to a chain of altered biodynamics in the right lower extremity transmitted up the right leg and to the vertebral column, thereby causing injury, aggravation and impairment in the right ankle, knee and lower back, as advised by Dr Khan on 5 March 2024. The detail of just when Ms Firozabady developed an antalgic gait is not conclusive, as I accept that without the corrective footwear that she was eventually given, she was suffering an antalgic gait from at least 2016, and probably at times from 2014.
I note the agreement between the parties that the dispute regarding the digestive system is to be determined by the Medical Assessor, and as already indicated, there is accordingly no need to consider that aspect of the case.
For these reasons I make the orders set out above.

[2024] NSWPIC 264

22 May 2024