Formosa v BES Holdings (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Formosa v BES Holdings (NSW) Pty Ltd [2024] NSWPIC 188
APPLICANT:	Jason George Formosa
RESPONDENT:	BES Holdings (NSW) Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to right lower extremity (hip) and TEMSKI/scarring, with a deemed date of injury of late September 2020; whether the applicant sustained a consequential condition of the lumbar spine; Held – the applicant sustained a consequential condition of the lumbar spine; the matter be remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment of the right lower extremity (hip), lumbar spine and TEMSKI/scarring.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition of the lumbar spine. The Commission orders: 2. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: late September 2020 Body parts: right lower extremity (hip) lumbar spine TEMSKI/Scarring Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attachments; (b) Reply to Application to Resolve a Dispute and attachments, and (c) Application to Admit Late Documents and attachments lodged by the applicant pursuant to directions made on 11 April 2024.

STATEMENT OF REASONS

BACKGROUND

Jason George Formosa (the applicant) worked for BES Holdings (NSW) Pty Ltd (the respondent) as a tow truck driver. The applicant injured his right hip when he fell at work in or about late September 2020 (the hip injury).
On 7 April 2021, the applicant underwent right total hip replacement surgery (the surgery).
On 21 March 2023, the applicant made a claim for permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 25% total whole person impairment (WPI), calculated on the basis of 20% WPI for the right hip, 5% WPI for the lumbar spine and 1% WPI for TEMSKI/scarring. The applicant claimed that he sustained a consequential condition of the lumbar spine as a result of the right hip injury. The applicant relied on a report of independent medical expert, Dr Ulthum Dias, dated 21 February 2023.
By notice dated 18 July 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer disputed liability for permanent impairment compensation on the grounds that: it disputed that the applicant sustained a right hip injury arising out of or in the course of employment; it disputed that the applicant sustained a consequential condition of the lumbar spine; and further, it disputed that the applicant sustained greater than 10% permanent impairment as a result of an injury as required by s 66(1) of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (the Commission) by an Application to Resolve a Dispute (Application) lodged on 9 February 2024. The Application stated that the applicant claimed permanent impairment compensation in respect of 25% WPI in relation to the lumbar spine and right hip with a date of injury of 4 October 2020.
The respondent lodged a Reply to the Application (Reply) on 1 March 2024.
At a preliminary conference held on 12 March 2024, directions were issued by consent to amended the Application to change the date of injury to late September 2020.
At a hearing before me on 11 April 2024, the applicant was represented by Mr Josh Beral, counsel, instructed by Mr Claudio Meireles of CMC Lawyers. The respondent was represented by Mr Allen Parker, counsel, instructed by Ms Cherrie Tippett of Moray & Agnew Lawyers.
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.

ISSUES FOR DETERMINATION

At the hearing on 11 April 2024, directions were issued by consent to further amend the Application, with the effect that it now claims permanent impairment compensation pursuant to s 66 of the 1987 Act in relation to:
(a)    a frank injury of the right hip in late September 2020;
(b)    a consequential condition of the lumbar spine, and
(c)    TEMSKI/scarring.
Further at the hearing on 11 April 2024, counsel for the respondent advised that the respondent concedes:
(a) a frank injury of the right hip in late September 2020, and
(b) TEMSKI/scarring.
On that basis, the following issue remains in dispute and is required to be determined by me:
(a) whether the applicant sustained a consequential condition of the lumbar spine.
Both parties agreed that, following determination of that issue, the claim for permanent impairment compensation should be remitted to the President to be referred to a Medical Assessor for assessment of the degree of permanent impairment.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application with attached documents;
(b)    Reply with attached documents, and
(c)    Application to Admit Late Documents lodged by the applicant in accordance with directions issued on 11 April 2024.

Oral evidence

No party applied to adduce oral evidence or cross-examined any witness.

Applicant’s statement

The applicant gave evidence by a statement dated 10 October 2023. In summary, the applicant stated that:
(a)    he sustained the hip injury when he fell at work in or about late September 2020;
(b)    the hip injury caused pain in his right hip;
(c)    subsequently over a period of weeks, the right hip pain worsened and began to radiate down his right leg;
(d)    eventually on or about 7 October 2021, the pain in his right hip radiating down to his right lower extremity flared up to such a degree that he was unable to walk or bear any pain on his right leg and he presented to a hospital emergency department;
(e)    subsequently, he continued to experience severe pain in his right hip radiating down the right leg;
(f)    he eventually presented to Waterloo Medical Centre for further medical treatment and reported the pain, that he was unable to bear weight on his right leg and unable to walk normally;
(g)    following various investigations and treatment, he underwent the surgery on 7 April 2021;
(h)    over an extended period of time since the occurrence of the hip injury and the surgery, he was unable to bear weight on his right leg and walked with an altered gait, and with the assistance of a walking stick, which placed stress on his lower back;
(i)    following the surgery, and due to the prolonged period of being unable to walk normally and bear weight on his right leg, he began to experience increasing pain in his lower back and developed issues with his lower back;
(j)    he experiences ongoing symptoms in his right hip and continues to experience difficulty bearing weight on his right leg and walks with an altered gait and with the assistance of a walking stick;
(k)    he also experiences ongoing pain, discomfort and stiffness in his lower back due to the hip injury, and
(l)    he also has scars from the surgery.

Treating medical evidence

The treating medical evidence includes:
(a)    an operation report of the Royal North Shore Hospital dated 7 April 2021;
(b)    clinical records of the Royal Prince Alfred Hospital (RPAH);
(c)    clinical records of the North Shore Private Hospital, and
(d)    clinical records of the Waterloo Medical Centre.
The medical evidence shows the following relevant medical history.
On 20 January 2016, general practitioner, Dr Harold Kwiatek, noted that the applicant reported back pain following a “fall 2 weeks ago down stairs injury coccyx tender same”.
On 7 October 2020, the applicant presented to the RPAH Emergency Department with right sided hip pain. The applicant reported that he had experienced two weeks of right thigh pain following a injury at work two weeks prior. It was noted that the applicant walked with an antalgic gait.
On 4 November 2020, general practitioner, Dr Graham noted that the applicant reported that, following a fall on his right side, he had experienced leg pain for six weeks and could not walk.
On 5 November 2020, it was reported that a CT of the right hip showed an area of abnormality at the femoral head, with a mildly sclerotic border likely representing an area of avascular necrosis.
On 6 November 2020, general practitioner, Dr San, noted that the applicant reported improved pain in his right hip.
On 9 November 2020, general practitioner, Dr Small queried if the applicant had aseptic necrosis of the hip. Dr Small noted that the applicant had no history of back pain.
On 19 November 2020, Dr Small noted that the applicant requested WorkCover. Dr Small prescribed pain medication for the applicant’s right hip.
On 20 November 2020, Dr Small noted that the applicant reported increasing hip pain after a fall at work. Dr Small queried if the applicant had aseptic necrosis of the hip.
On 26 November 2020, an MRI right hip was reported to show: a large osteonecrotic segment in the right femoral head involving the superior to anterior weight-bearing surfaces; a subchondral fracture at its anterior margin; marrow oedema; moderate joint effusion; and moderate cartilage wear over the superior to anterior weight-bearing surfaces of the joint.
On 27 November 2020, Dr Small noted that radiology showed that the applicant had aseptic necrosis of the right hip.
On 7 December 2020, Dr Small, reported that the applicant required urgent surgery as a result of injury to his right hip at work on 1 October 2020.
On 11 December 2020, Dr Small noted that the applicant found it difficult to bear weight on his right leg and walked using a walking stick. Dr Small prescribed pain medication for the applicant’s right hip.
On 22 December 2020, the applicant attended the RPAH outpatient clinic and reported ongoing right hip pain and walked with an antalgic gait. The applicant reported that progressively his gait had become more and more abnormal and he started using a walking stick three weeks ago.
On 14 January 2021, Dr Small noted that the applicant was very agitated in pain from his right hip and that he walked with a limp. Dr Small prescribed pain medication for the applicant’s right hip.
On 10 February 2021, an MRI (right hip) was reported to show sclerosis and partial collapse of the superior aspect of the right femoral head consistent with the avascular necrosis.
On 23 February 2021, Dr Small noted that he prescribed pain medication for the applicant’s right hip. Dr Small noted that the applicant had no history of back pain.
On 26 February 2021, Dr Small noted that the applicant consulted him in relation to his right hip. Dr Small noted that the applicant had no history of back pain.
On 1 March 2021, Dr Small noted that he prescribed pain medication for the applicant’s right hip.
On 9 March 2021, Dr Small noted that he prescribed pain medication for the applicant’s right hip.
On 16 March 2021, Dr Small noted that the applicant required pain medication and walked using a walking stick whilst awaiting surgery on his right hip.
On 23 March 2021, Dr Small noted that the applicant required pain medication and walked with an antalgic gait using a walking stick whilst awaiting surgery on his right hip.
On 7 April 2021, the applicant underwent a right total hip replacement performed by Dr Maurice Guzman at the North Shore Private Hospital.
On 13 April 2021, Dr Small noted that the applicant required pain medication following the right total hip replacement.
On 21 April 2021, Dr Small noted that the applicant walked with a mild limp following the right total hip replacement. Dr Small prescribed pain medication.
On 18 November 2021, Dr Small recorded that the applicant reported that he had no hip pain.
On 22 December 2021, Dr Small recorded that the applicant reported “admits painin his hip gone no rest pain” [sic].
On 16 February 2022, Dr Small recorded a history of “No back pain” but ongoing hip pain.
On 17 March 2022, Dr Small recorded that the applicant reported ongoing hip pain following the right total hip replacement.
On 28 April 2022, Dr Small recorded that the applicant “remains in pain”. Dr Small recorded a history of “No back pain”.
On 19 July 2022, Dr Small recorded that the applicant reported mechanical back pain and a history of back pain. Dr Small also recorded that the applicant’s left shoulder and right shoulder joints were affected. Dr Small recorded that the applicant reported that he had been assaulted, falsely imprisoned in jail and had attempted suicide. Dr Small prescribed pain medication.
On 21 November 2022, Dr Small noted that the applicant was walking well and did not use a crutch.
On 20 November 2023, Dr Small noted that the applicant “still” limped with a shortened leg following the total hip replacement.
It appears from the medical records that the applicant did not report any symptoms of back pain in any of his numerous general practitioner attendances between 20 January 2016 and the reported mechanical back pain on 19 July 2022.
The clinical records of the Waterloo Medical Centre state that the applicant’s current medications as at 17 January 2024 include Paracetamol for mechanical back pain.

Other evidence

Other evidence includes:
(a) a factual investigation report by AB Investigations dated 13 January 2021 which reported on the hip injury, and
(b) various text messages.

Independent medical evidence

Associate Professor Paul Miniter, orthopaedic surgeon

A/Prof Miniter provided an independent medical opinion, qualified by the respondent.
In a report dated 26 February 2021, A/Prof Miniter stated that the applicant requires a total hip replacement. A/Prof Miniter expressed the opinion that the hip injury was unrelated to the applicant’s work.
In a report dated 4 February 2021, A/Prof Miniter stated that the applicant presented with right groin pain radiating to the anterior aspect of the right thigh and “sees himself as having quite significant disability”. A/Prof Miniter did not record any report of other injury or lower back symptoms. A/Prof Miniter recorded that the applicant walked with a limp and used a walking stick. A/Prof Miniter reported that on examination, there was no leg length discrepancy. A/Prof Miniter stated that the applicant reported that he was asymptomatic prior to the hip injury. A/Prof Miniter diagnosed avascular necrosis of the femoral head with a collapsed segment and osteoarthritic disease, the majority of which was pre-existing. A/Prof Miniter accepted the possibility that the hip injury unmasked pathology which was asymptomatic prior to the hip injury. A/Prof Miniter expressed the opinion that the applicant has a severe disability relating to the right hip and that he should undergo a hip replacement as soon as possible.

Dr Uthum Dias, occupational physician

Dr Dias provided an independent medical opinion, qualified by the applicant.
In a report dated 21 February 2023, Dr Dias noted that the applicant walked with a mild antalgic gait pattern favouring his right lower limb. Dr Dias stated that on examination, the applicant’s lumbar spine was tender to palpation in the midline and in the right lumbar paraspinal musculature from the level of L4 to S1. Dr Dias stated that extension of the lumbar spine was limited to three quarters of the normal range, lateral flexion of the lumbar spine was limited on the right side to one half of the normal range and on the left side to three quarters of the normal range. Dr Dias stated that lateral rotation of the torso was limited on the right side to two thirds of the normal range and on the left side to three quarters of the normal range. Dr Dias stated that there was no objective clinical evidence of lumbar radiculopathy noted on neurological examination on that occasion. Dr Dias stated that the applicant had noticeable scarring on the region of his right hip and he had some right hip tenderness and pain. Dr Dias stated that measurement of the right true leg length, from the anterior superior iliac spine to the medial malleolus, measured 96.5cm, compared with the left true leg length which measured 97.0cm.
Dr Dias stated a diagnosis of chronic right hip pain, stiffness and discomfort, secondary to an acute impaction injury, with consequential post-traumatic right femoral head avascular necrosis caused by a frank injury to his right hip region in late September 2020. Dr Dias noted that the applicant continues to suffer with mild to moderate right hip pain following the surgery on 7 April 2021. Dr Dias also diagnosed chronic consequential right-sided lumbar spine pain, stiffness and discomfort, secondary to prolonged gait patterns as a result of the hip injury, which had manifested symptomatically over the course of the last two years. Dr Dias stated that the applicant did not have any pre-existing injuries or conditions affecting his lumbar spine prior to the hip injury. On that basis, Dr Dias opined that the applicant’s consequential condition of the lumbar spine was causally attributable to the hip injury.

SUBMISSIONS

Counsel for the applicant and the respondent both made oral submissions which were recorded.

Applicant’s submissions

Mr Beran’s submissions, on behalf of the applicant, may be summarised as follows:
(a)    Mr Beran stated that there is no dispute that the applicant sustained the hip injury in late September 2020 and also sustained scarring following the surgery. Mr Beran stated that the only issue that is required to be determined by me is whether the applicant also sustained a consequential condition of the lumbar spine;
(b)    Mr Beran referred to the clinical records and submitted that the medical evidence shows that:
(i)following the surgery on 7 April 2021, the applicant first reported lower back pain in July 2022;
(ii)the applicant did not report back pain at any prior time, apart from one occasion on 20 January 2016;
(iii)after the applicant sustained the hip injury in late September 2020 and also after the surgery on 7 April 2021, the applicant had an altered gait and used a walking stick, and
(iv)following the surgery on 7 April 2021, one of the applicant’s right leg was 0.5cm shorter in length than the left leg;
(c)    the respondent’s submission that the applicant’s lumbar spine condition was caused by a physical assault is not supported by the evidence because the applicant did not report back pain immediately following the assault;
(d)    the respondent’s contention that the lumbar spine condition was caused by a physical assault is not supported by the evidence because no medical evidence explored a causal connection between the applicant’s lumbar spine condition and the physical assault, and
(e)    to the contrary, the evidence supports a finding that the applicant sustained a lumbar spine condition secondary to a prolonged altered gait pattern as a result of the hip injury, which manifested over the last two years.

Respondent’s submissions

Mr Parker’s submissions, on behalf of the respondent, may be summarised as follows:
(a)    Mr Parker submitted that the evidence demonstrates that the applicant only experienced back pain following being subjected to a physical assault which is unrelated to the applicant’s work;
(b)    Mr Parker submitted that the Commission should not be satisfied that the applicant sustained a consequential condition of the lumbar spine because the evidence indicates a temporal connection between the applicant’s lumbar spine condition and the physical assault;
(c)    Mr Parker submitted that the Commission cannot dismiss the temporal connection between the applicant’s lumbar spine condition and the physical assault because evidence of the assault was not considered by Dr Diaz and Dr Gluzman and their opinion as to causation does not take that evidence into account;
(d)    Mr Parker submitted that the discrepancy in the length of the applicant’s legs is no more than 0.5cm and there is no evidence to show that it is so significant that it would cause a consequential condition of the lumbar spine, and
(e)    Mr Parker submitted that, accordingly, the applicant’s claim must fail.

Applicant’s submissions in reply

Mr Beran’s submissions in reply may be summarised as follows:
(a) Mr Beran submitted that it is clear from the applicant’s evidence that he denies experiencing back pain prior to the surgery.

FINDINGS AND REASONS

The law

It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act or that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah,[1] Deputy President Roche stated at [45]-[46]:
“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.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[2] Roche DP stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
The legal test of causation to be applied in determining whether there is a consequential condition is that set out in Kumar v Royal Comfort Bedding Pty Ltd [2013] NSWWCCPD 8 at [35]-[59], which applied the principles in Kooragang Cement Pty Ltd v Bates[3] (Kooragang). In Kooragang, Kirby P (as His Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[4]
[3] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[4] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[5] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[5] [2016] HCA 43, at [42].
The issue to be determined is whether the subject injury has materially contributed to the onset of the condition claimed, unbroken by a novus actus interveniens: Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [53].
The Court of Appeal in Nguyen v Cosmopolitan Homes[6] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”

Consideration

[6] [2008] NSWC 246.

The evidence of the independent medical expert

The independent medical expert, Dr Dias diagnosed chronic consequential right-sided lumbar spine pain, stiffness and discomfort, secondary to prolonged gait patterns as a result of the hip injury. Dr Dias stated that the consequential condition of the lumbar spine had manifested symptomatically over the course of the last two years.
The basis for Dr Dias’ opinion that the lumbar spine was causally attributable to the hip injury was that: the applicant demonstrated symptoms of lumbar spine pain, stiffness and discomfort; the applicant walked with an antalgic gait for a prolonged period as a result of the hip injury; the applicant did not have any pre-existing injuries or conditions affecting his lumbar spine prior to the hip injury; and also on the fact that there was no evidence of other trauma to the applicant’s lumbar spine.

The clinical history

The applicant’s evidence is that he suffers a consequential condition of the lumbar spine. The applicant’s evidence is that, over an extended period of time since the occurrence of the hip injury and the surgery, he was unable to bear weight on his right leg and walked with an altered gait, and with the assistance of a walking stick, which placed stress on his lower back. The applicant’s evidence is that, following the surgery, and due to the prolonged period of being unable to walk normally and bear weight on his right leg, he experienced increasing lower back pain. The applicant’s evidence is that those symptoms are ongoing and that he continues to experience ongoing pain, discomfort and stiffness in his lower back due to the hip injury.
I note that the history reported by the applicant is largely supported by the medical records, particularly the clinical records of the Waterloo Medical Centre.
It is not disputed, and having regard to the evidence as a whole I accept, that:
(a)    as a consequence of the hip injury, the applicant experienced ongoing significant debilitating right hip and leg pain, was unable to bear weight on his right leg, walked with a limp and used a crutch for assistance;
(b)    as a consequence of the hip injury, the applicant underwent the surgery, being right total hip replacement, on 7 April 2021;
(c)    following the surgery, the applicant at times reported that he had no hip pain, and at other times reported that he had ongoing hip pain;
(d)    following the surgery, the applicant walked with a mild limp with a shortened leg;
(e)    the applicant did not report any symptoms of back pain to his general practitioner at any time between 20 January 2016 and 19 July 2022;
(f)    the applicant reported mechanical back pain and a history of back pain to his general practitioner on 19 July 2022;
(g)    on examination in February 2023, Dr Dias Dr Dias noted that the applicant continues to suffer with mild to moderate right hip pain following the surgery on 7 April 2021. Dr Dias diagnosed chronic consequential right-sided lumbar spine pain, stiffness and discomfort, and
(h)    the applicant was prescribed Paracetamol for mechanical back pain as recently as 17 January 2024.
Having regard to the evidence as a whole, I accept that the applicant has developed a chronic right-sided lumbar spine condition with pain, stiffness and discomfort which has manifested symptomatically over the course of the last two years.

The antalgic gait

In relation to the applicant’s antalgic gait, I note that prior to the surgery, in his report dated 4 February 2021, A/Prof Miniter stated that on examination there was no discrepancy in the length of the applicant’s legs. However subsequent to the surgery, in his report dated 21 February 2023, Dr Dias stated that measurement of the right true leg length, from the ASIS to the medial malleolus, measured 96.5cm, compared with the left true leg length which measured 97.0cm. On 20 November 2023, Dr Small recorded that following the surgery, the applicant walked with a mild limp with a shortened leg.
Having regard to the medical evidence, and in the absence of any evidence regarding any alternative cause or explanation, I accept that the applicant sustained a 0.5cm discrepancy between the length of his legs as a consequence of the surgery.
Mr Parker submitted for the respondent that the discrepancy in the length of the applicant’s legs is no more than 0.5cm and there is no evidence to show that it is so significant that it would cause a consequential condition of the lumbar spine.
With respect, I do not accept that submission because both Dr Dias and Dr Small acknowledged the discrepancy in the length of the applicant’s legs in the context of the applicant’s ongoing limping and symptoms following the surgery.
In any event, as I noted above, I accept that the applicant did experience an antalgic gait for an extended period of time following the hip injury and also subsequent to the surgery.
The evidence of Dr Small, A/Prof Miniter and Dr Dias all support a finding that the applicant’s antalgic gait was a consequence of the hip injury and the surgery.
There is no evidence that the applicant experienced an antalgic gait prior to the hip injury.
Further, there is no evidence supporting an explanation for the applicant’s antalgic gait, apart from the injury and the surgery.
Having regard to the evidence as a whole, I accept that the applicant walked with an antalgic gait for a prolonged period as a consequence of the hip injury.

Pre-existing injuries or conditions of the lumbar spine

There is no evidence of any prior history of back pain apart from a singular report by the applicant to his general practitioner on 20 January 2016.
There is no evidence that that singular report of back pain on 20 January 2016 was followed up by any investigations or further consultations. The medical evidence shows that the applicant later denied any significant history of back pain. Considering the evidence as a whole, I accept that the singular incident of back pain on 20 January 2016 was a comparatively minor isolated incident that was not of ongoing significance.
On that basis, having regard to the evidence as a whole, I accept that the applicant had no significant history of pre-existing injuries or conditions of the lumbar spine prior to reporting lower back pain on 19 July 2022.

Other injury or trauma

On behalf of the respondent, Mr Parker submitted that the Commission should not find that there is a consequential condition of the lumbar spine because it cannot disregard the possibility that the applicant’s lumbar spine condition was caused by an assault that the applicant sustained prior to the applicant reporting lower back pain on 19 July 2022.
Mr Parker submitted further, that the Commission cannot accept the opinion of Dr Dias because he did not have an opportunity to consider any relevant physical effects of the reported assault.
In this regard, I note that on 19 July 2022, Dr Small recorded that the applicant reported mechanical back pain and a history of back pain. At that time, Dr Small also recorded that the applicant reported that his left shoulder and right shoulder joints were affected. Dr Small recorded that the applicant reported that he had been assaulted, falsely imprisoned in jail and had attempted suicide.
Mr Parker submitted that the close temporal connection between the applicant’s report of back pain and the applicant’s report that he had been assaulted is evidence of a potential causal connection between them, which cannot be disregarded because the independent medical experts did not consider evidence in relation to any physical effects of the assault.
I accept that Dr Small’s notes on 19 July 2022 do record both a report of back pain and a history of back pain and a report of an assault. However, there is no other evidence in relation to the facts, circumstances, timing and effects of the reported assault. Significantly, there is no explicit and clear evidence that the applicant sustained any significant injury as a result of the reported assault.
The clinical records which contained Dr Small’s notes on 19 July 2022 were contained in produced documents and were admitted into evidence by consent of the parties. There is no evidence that the respondent has sought further medical opinion which considers this issue. The respondent has not raised any issues of procedural fairness in this regard. In the circumstances, I am required to determine the issue on the evidence before me.
Having regard to the evidence as a whole, I am not satisfied that the applicant sustained any significant relevant injury or trauma as a result of the reported assault.
On that basis, I do not consider it necessary that Dr Diaz and Dr Gluzman were given the opportunity to comment on the relevance, or otherwise, of the reported assault to the claimed consequential condition of the lumbar spine.
Having regard to the evidence as a whole, I am not satisfied that the applicant suffered any other significant trauma affecting his lumbar spine.

Commonsense evaluation of the causal chain

I accept that the medical evidence in this matter is not entirely clear.
However, having regard to the evidence as a whole, and for the various reasons that I have referred to above, I prefer and accept the opinion of the Dr Dias, which I find to be compelling. Dr Dias provided a detailed and rational explanation for the applicant lumbar spine condition. Further, I consider that Dr Dias’ opinion is consistent with the applicant’s evidence and the treating medical evidence. Further, I am satisfied that Dr Dias’ opinion that the applicant developed a consequential condition of the lumbar spine as a result of the hip injury is consistent with a logical and likely causal chain of events.
Considering the evidence as a whole and based on a commonsense evaluation of the causal chain, I find that the applicant developed a consequential condition of the lumbar spine as a result of the hip injury.

Referral to a Medical Assessor

Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the injury to the right hip with a date of injury of late September 2020, consequential condition of the lumbar spine and TEMSKI/scarring.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

Accordingly, I make the following finding:
(a) the applicant sustained a consequential condition of the lumbar spine.
Further, I order that the matter is remitted to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the injury to the right hip with a date of injury of late September 2020, consequential condition of the lumbar spine and TEMSKI/scarring. The documents to be referred to the Medical Assessor comprise the Application, the Reply and the Application to Admit Late Documents lodged by the applicant in accordance with directions issued on 11 April 2024.

[2024] NSWPIC 188

15 April 2024