Gonzales v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gonzales v Secretary, Department of Communities and Justice [2022] NSWPIC 86
APPLICANT:	Emily Gonzales
RESPONDENT:	Secretary, Department of Communities and Justice
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	2 March 2022
CATCHWORDS:	WORKERS COMPENSATION - claim for consequential conditions; Held- award for applicant all body parts save for right hip.
DETERMINATIONS MADE:	1. The applicant suffered consequential conditions to her right knee, left hip, lumbar spine and upper digestive tract as a result of the index injury on 13 June 2012. 2. Award for the respondent in respect of the claim for a consequential condition to the right hip. 3. The matter is to be remitted to the President to be referred to a Medical Assessor for whole person impairment assessment of the left knee, right knee, left hip, lumbar spine and upper digestive tract. 4. The date of injury is 13 June 2012. The Application to Resolve a Dispute and Reply are to be provided to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

The applicant commenced employment with the respondent in 2007 on a casual basis as a disability support worker. Her duties included assisting disabled patients who required high care which necessarily involved showering, feeding, dressing, toileting and grooming activities.
On 13 June 2012 the applicant was assisting a client with using the toilet. The applicant squatted down to assist the client and felt a sharp stabbing pain in her left knee. The pain was of such a level that the applicant screamed[1].
[1] Application page 4, paragraph 17.
The applicant went to her general practitioner on 15 June 2012 and then was placed on suitable duties until 22 June 2012.
There is no dispute the applicant suffered an injury to her left knee in the pleaded index incident with an MRI disclosing an oblique tear across the body of the posterior horn in the medial meniscus.
On 12 September 2012 the applicant underwent a left knee arthroscopy performed by
Dr Ireland. The applicant subsequently underwent a steroid injection to assist with her pain and a further arthroscopy on 11 April 2013.
A third arthroscopy was performed on 16 May 2014 under the care of Dr Herald.
The applicant says that since her injury, she has required psychological treatment and has been seeing Dr Brian Kearney, pain specialist to assist her with dealing with her depression and anxiety.
The applicant has seen a psychiatrist Dr George Jacobs also from the pain management team to assist her.
The applicant clearly outlined the onset of the consequential conditions in her statement dated 27 September 2018[2]. The applicant’s description of the timing of her complaints has not been challenged by the respondent. I therefore accept her evidence as an accurate description.
[2] Application page 7.
The applicant says that on 13 June 2012 she began to develop symptoms of pain in her right knee. She reported this to Dr Ong on 8 April 2013 who requested an x-ray. The applicant says she also reported it to Dr Herald on 13 April 2013 and felt reassured that the pain would resolve after the left knee was fixed.
Unfortunately, the applicant’s symptomatology in her right knee did not get better and she complained to Dr Ong again on 20 January 2014. Dr Ong requested an ultrasound of the right knee.
The applicant also complained to Dr Herald on 7 February 2014 who requested an MRI of both knees. As a result of that MRI, Dr Herald recommended surgery to both knees however liability was refused in respect of the right knee by the insurer.
In respect of the left hip, the applicant says she first experienced symptomatology in around October 2013. She complained of this symptomatology to Dr Ong on 7 October 2013, then on 30 March 2015 and again on 1 April 2015. The applicant was referred for physiotherapy and also to Dr Ian Gotus-Graham who performed a cortisone injection in the left hip.
In respect of the lumbar spine the applicant first observed symptomatology in around October 2015. On 17 October 2015, 24 February 2016 and 20 April 2016, Dr Jordan Wood (pain management team) performed a left lumbar sympathetic block injection. Dr Herald referred the applicant for an MRI scan which revealed an aggravation of a previously asymptomatic arthrosis at the L5/S1 level.
The applicant’s pain in her back returned in around March 2017 and the applicant once again saw Dr Herald who recommended the applicant consult with Dr Manohar who requested a whole body scan. He then suggested the applicant trial a spinal cord stimulator.
Dr Rooney saw the applicant on 19 July 2017. The applicant was given a cortisone injection which assisted with her pain.
The applicant says she also consulted Dr Herald in respect of the injury who recommended scans on the right knee and left hip.
In the beginning of 2018, the applicant began to experience pain in the right hip which got worse. She then consulted Dr Khan who requested an MRI which disclosed evidence of a mild predisposition to femoroacetabular impingement, a fine labral tear and tendinosis of the glutei and hamstrings. The applicant then was treated by Dr Rooney who recommended a steroid injection to the right hip which the applicant underwent on 7 November 2018.
Between July and August 2016 the applicant consulted Dr Lee in respect of symptomatology in her stomach who recommended a colonoscopy and an endoscopy. After undergoing those procedures the applicant was prescribed Nexium and Losec to prevent stomach ulcers and Movicol and Actilax to assist with constipation.

The applicant has also prepared a supplementary statement[3]. In that statement the applicant continues to experience symptomatology in her lower back, left and right knees, left and right hips and digestive symptoms.
[3] Application page 9.
The applicant also updates her clinical treatment which includes consulting with Dr Rooney in October 2018 in respect of the right hip. Dr Rooney recommended a steroid injection to the right hip which the applicant underwent on 7 November 2018 which provided her with minimal relief.
The applicant also consulted Dr Matthew Crawford in Randwick who recommended review by a physiotherapist and undergoing gym based activities to assist with symptomatology.
As the applicant could not continue to pay for Dr Crawford’s private fees, she was referred to the Liverpool Hospital Pain Clinic. The last time she saw Dr Crawford was on 30 January 2020.
On 23 January 2019 the applicant saw Dr Jonathan Herald again who recommended the applicant should continue with physiotherapy and also referred the applicant for Synvisc injections in both knees. The applicant underwent these injections in mid-February 2019.
On 22 January 2020 the applicant underwent an MRI of her left hip which disclosed a labral tear together with a predisposition to impingement. On the same day the applicant underwent an MRI of her right hip which evidenced mild tendinosis.
At the time of writing that second statement the applicant was under the care of Dr Ijaz Khan who is an occupational medical practitioner. Dr Khan referred the applicant to the Liverpool Hospital Pain Clinic and the applicant had attended upon that clinic by way of telephone consultation due to COVID-19.
In respect of her digestive symptomatology, the applicant has attended upon Dr Matthew Morgan who referred the applicant for a colonoscopy and endoscopy and a rectum ultrasound.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has the applicant suffered a consequential condition to her right knee, left hip, right hip, lumbar spine and upper digestive tract?

PROCEDURE BEFORE THE COMMISSION

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

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply to the Application to Resolve a Dispute.

Medical evidence

There is a significant amount of medical evidence in this case[4]. In determining this dispute,
[4] There were over 1490 pages in the application, 652 pages in the Reply.
[5] See Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 at [8]-[9].
I will refer to documents that were subject to submissions.[5]

Dr Dias

Dr Dias has prepared a report for the applicant’s former solicitors dated 19 February 2016.[6] In that report Dr Dias outlines the radiological investigations that have been performed up to that point and also takes a thorough history from the applicant including her duties at work. In respect of the index event Dr Dias understood that the applicant was squatting in the crouch position and as she squatted down she felt a sharp stabbing pain at the medial aspect of her left knee.
[6] Application page 38.
Dr Dias outlines a history that post the second arthroscopy, the applicant experienced worsening symptoms of pain and stiffness in her right knee, as well as the lumbar spine and left hip which Dr Dias opined was due to altered gait, bio mechanics and increased reliance on her right lower limb whilst weight bearing.
Dr Dias performed what appears to be a thorough examination of the applicant and diagnosed the applicant in respect of the consequential claims. In respect of the right knee he diagnosed the applicant as having persistent aggravation/exacerbation of a previously asymptomatic patellofemoral osteoarthritis, as well as a small medial meniscal tear in the right knee secondary to altered gait patterns and altered gait mechanics.
In respect of the lumbar spine, Dr Dias opined that the applicant had sustained an aggravated/exacerbation of a previously asymptomatic degenerative lumbar spondylosis, secondary to altered gait mechanics as a result of her longstanding left knee condition.
In respect of the left hip, Dr Dias opined that the applicant had sustained a chronic left hip impingement syndrome as a result of altered gait mechanics secondary to her longstanding left knee injury. He suggested that an MRI scan of the left hip should take place which would assist with diagnostic clarity.
Dr Dias said that all these conditions, were as a direct consequence of the compensable left knee injury, that is the index event on 13 June 2012.
Dr Dias prepared a further report dated 30 September 2016, after examining the applicant on the second occasion on 30 September 2016.
At that time the applicant told Dr Dias that her symptoms had worsened over the course of the past seven months since the first examination. The applicant felt that she had worse symptoms of pain and stiffness in her right and left feet and ankles in addition to the claimed symptomatology. The applicant also complained of significant gastrointestinal sequelae from chronic opiate and anti-inflammatory tablet use.
After performing a thorough examination on the applicant Dr Dias once again confirmed his opinion in respect of the applicant’s injuries. In respect of the right knee Dr Dias said the applicant suffered from an undisplaced horizontal tear of the body at the posterior horn of the medial meniscus, as well as mildly symptomatic patellofemoral osteoarthritis, secondary to altered gait patterns and altered gait mechanics arising from her left knee condition.
Dr Dias also confirms his previous opinion in respect of the left hip pain which was secondary to chronic mild trochanteric bursitis and an anterior labral tear which he said was sustained as a result of altered gait patterns and altered gait mechanics arising from the left and right knee conditions.
Further, in respect of the lower back pain once again Dr Dias opined that the applicant had had an aggravation of a previously asymptomatic mild degenerative lumbar spondylosis as a result of longstanding altered gait mechanics.
It should be observed that Dr Dias does not appear to turn his mind to the right hip.

Dr Neil Berry

Dr Neil Berry, general surgeon, has prepared a report dated 6 August 2018 to the applicant’s solicitors. Dr Berry performed an impairment assessment in relation to the applicant’s condition and opined that the applicant suffered from 22% whole person impairment in respect of conditions in the lumbar spine, hip, left lower extremity (knee), right knee and the upper digestive tract.
On examination of the abdomen Dr Berry found that there was tenderness in the epigastrium but there were no palpable masses.
In respect of the lumbar spine, rotation was reduced and extension was minimal. Fortunately there was no paraspinal muscle spasm. In respect of the lower extremities on the right hand side there was normal hip movement however knee flexion was reduced and there was tenderness on compression of the patella against the femoral condyles.
In respect of the left lower extremity, the hip flexion was reduced but other movements were normal. There was pain on flexion. In respect of the knee there was also reduced extension.
Dr Berry opined that as a result of the sustained twisting injury, the applicant had developed consequential conditions namely, a right knee condition with a back injury and also a left hip labral tear. There was no assessment for any condition in the right hip.
Dr Berry has prepared a second report dated 15 July 2020.[7] In preparing that report Dr Berry re-examined the applicant on 14 July 2020.
[7] Application page 82.
Dr Berry opined that after sustaining an injury to the left knee in the index event, because of altered gait and the result of a twisting response in the initial injury the applicant had suffered injuries to the back and both lower limbs and also has a bowel disturbance in response to her medication intake.
Dr Berry opined that the applicant was now complaining about pain in the right hip which was not as severe as other areas of pain but had become increasingly severe.
So far as whole person impairment assessment, Dr Berry now assessed the applicant’s whole person impairment to now include a 2% whole person impairment in respect of the right hip, giving the applicant 24% whole person impairment.[8]
[8] Application page 92.

Dr Richard Powell

The applicant was examined by Dr Powell because she refused to be re-examined by
Dr Wallace.
The applicant saw Dr Powell on 19 December 2013 at the request of the respondent’s solicitors. Dr Powell has prepared a report which is annexed[9] to the Reply. It was evident from the report that Dr Powell’s attention has been focused on the left knee however he does observe that the applicant “has an antalgic gait with a shortened stance phase on the left side”.[10]
[9] Reply page 14.
[10] Reply page 17.
Dr Powell opines that the applicant has suffered a tear of the medial meniscus as a result of the workplace incident on 13 June 2012.
Dr Powell has prepared a second report dated 7 April 2014[11].
[11] Reply page 21.
At that time Dr Powell was asked to consider whether employment was the main contributing factor to the right knee symptomatology.
Dr Powell commented that there had indeed been an alteration in gait pattern associated with the left knee which may have resulted in alteration of the biomechanics involving the right side, although it was unlikely the cause of the pathology identified on the MRI scan that he had been provided with. The MRI scan dated 25 February 2014, which Dr Powell was provided with, referred to a tear of the posterior horn and the body of the medial meniscus bilaterally.
Dr Powell opined that it was reasonable for the applicant to undergo a further left knee arthroscopy.
Dr Powell prepared a further report dated 11 August 2016.[12]Dr Powell took a history that the applicant now had developed fairly widespread musculoskeletal symptoms including the neck, back and upper limbs, bilateral hips and bilateral knees.
[12] Reply page 24.
On examination, Dr Powell observed that the applicant exhibited a heightened pain response which he thought was clearly in excess of the clinical stimulus provided. The applicant was observed to be in mild to moderate discomfort during the assessment and as a result
Dr Powell needed to modify the examination.
After examination, Dr Powell opined that the applicant was suffering from a chronic pain syndrome. That is, the applicant had injured her left knee on the index event and now subsequently complained of development of widespread musculoskeletal symptoms involving the neck, back and lower limbs in a fairly diffuse fashion. These could not be explained in a rational way on the basis of the injury sustained in the course of her employment. Dr Powell stated that any gait or postural changes associated with her chronic left knee pain could not explain her widespread musculoskeletal symptoms or the radiological investigation results. That is, there was no definable organic link between the applicant’s employment and the myriad of musculoskeletal symptoms of which she now complained. Dr Powell therefore finally commented that the employment was a substantial contributing factor to the development of the left knee injury, however was not responsible for any of her current musculoskeletal complaints.
Dr Powell saw the applicant on a third occasion on 13 July 2017 and has prepared a report of the same date.[13]
[13] Reply page 33.
Dr Powell comments in relation to the examination that the applicant was a compliant and cooperative patient and there was no suggestion of over-reaction or exaggeration during the examination. He also observed the applicant had a normal gait.
Dr Powell examined the applicant again on 31 January 2019 and has prepared a further report dated 4 March 2019.[14]
[14] Reply page 38.
Dr Powell did observe the applicant had a mildly antalgic gait with a slight limp on the left hand side and described the applicant as being pain focused in the examination.
In respect of the right knee, Dr Powell observed that the investigations demonstrated evidence of a degenerate tear of the posterior horn at the medial meniscus. There was however no connection between this condition and the injury to the left knee. That is, the incident that occurred on 13 June 2012 resulted in a specific and direct injury to the left knee and there was no history of injury to the right knee.
In respect of altered gait mechanics, Dr Powell thought that this was the end of the spectrum and that the applicant had not required prolonged periods of altered gait weight bearing and should have been within the physiological capabilities of a normal joint to withstand. Any alteration in gait pattern would not have been considered sufficient to have caused structural pathology in the right lower limb.
In respect of the left hip, Dr Powell observed that the applicant does indeed have some minor underlying degenerative pathology in association with some gluteal and hamstring tendinopathy. He did not think however that there was any connection between the current condition involving the left hip and the workplace injury on 13 June 2012.
In respect of the lumbar spine, Dr Powell observed the applicant did have some minor changes of lumbar spondylosis however there was no connection between this condition and the injury to the left knee that occurred on 13 June 2012. Her lumbar spine symptoms were considered to be constitutional in nature.
By way of general comment, Dr Powell stated that it was difficult to explain the widespread musculoskeletal complex involving the neck, wrists, hands, lower back, hips, knees and ankles on the basis of a defined organic pathology. The applicant’s current symptom complex could not be explained on the basis of an injury to the left knee that occurred almost seven years ago.

Dr Greenberg

Dr Greenberg (general and gastrointestinal surgeon) has prepared a report dated 26 February 2019.[15] Dr Greenberg takes a history of the applicant’s current medications and outlines them clearly in his report.
[15] Reply page 113.
Dr Greenberg after considering the applicant’s condition opined that the applicant had a condition in her upper gastrointestinal system which was rated a 2% whole person impairment.
Dr Greenberg has prepared a second report dated 28 June 2021.[16] In that report,
[16] Reply page 127.
Dr Greenberg describes the applicant has gastrointestinal symptoms being similar to when he last examined her in 2019 however the applicant reported that they had become more intense and causing her increased problems.
Dr Greenberg opined that the applicant was suffering from gastro-oesophageal reflux disease, analgesic gastritis and a medication induced gastrointestinal motility disorder.
Dr Greenberg then classified the applicant’s whole person impairment in respect of the upper digestive tract as 3% whole person impairment. There is no assessment for the lower digestive tract.

Dr Wallace

The respondent obtained a report from Dr Wallace dated 26 May 2021 after an examination of the application that occurred on 20 May 2021.
Dr Wallace described the applicant’s response to examination as exhibiting a significant pain behaviour.
He said that her clinical examination was inconsistent with any known organic pathology. He opined there was no objective medical evidence that the applicant had suffered any work-related injury to her lumbar spine, bilateral hips or right knee. He described the applicant’s inconsistent responses to be “malingering”.

CONSIDERATION

The respondent’s position is that whilst the applicant suffered an injury to her left knee, there have been no consequential conditions that have arisen from that index injury.
It is not necessary for the applicant to establish that the claimed condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah^[17]observed 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.”
[17] [2009] NSWCCPD 134.
Deputy President Snell also reviewed the relevant authorities in relation to consequential conditions in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan. He made the following observations:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
It is therefore clear that it is not necessary for the applicant to demonstrate organic pathology to be successful in a claim in relation to a consequential condition. In this case I am confident that the applicant’s claim should succeed on most body parts as not only is there pathology in each body part claimed but the applicant has complained in respect of those and reported that symptomatology.
The first assault on the applicant’s case is that she is malingering. Whilst Dr Wallace opines that the applicant was malingering, it is quite clear that Dr Powell says that in March 2019 that the applicant did present to be genuine in her presentation, although she did demonstrate heightened pain responses. Such a description is not ad idem with a description of malingering. Further, I observe that various other medical examiners do not agree with such an assessment and I reject it.
Dr Crawford on 30 January 2020[18] says at paragraph 2:
“She has recently finished her TAFE course and thought she had landed a job as a counsellor but once they found out she was on workers comp they stated that they were unable to hire her.”
[18] Page 152.
The applicant submitted that the actions of someone trying to get back to work does not sit comfortably with that of a malingerer and I agree with that description.
The second assault is that there is a hiatus after the index incident until complaints in relation to the complained body parts. The applicant replies that this is because she underwent several surgical procedures over years..
This seems to my mind to be reasonable position. The applicant has undergone three surgeries over the period 2012 to 2014. As a matter of common sense, backed up by the opinions of both Dr Berry and Dr Dias that the applicant experienced consequential pain as a result of altered gait which developed after the subject injury and associated surgeries.
The complaints in respect of the right knee commenced in 2012, a time when the applicant was experiencing pain in her left knee which required surgery, the left hip in October 2013 which is at a time the applicant was undergoing surgery, the lumbar spine in 2015 was a short time after the third surgery. The hiatus in complaint does not cause me any difficulty in accepting the applicants claim generally ( save for the right hip which I will come to). The hiatus is not too long in my mind considering the multiple surgeries.
The third assault on the applicant’s case is that the applicant has not described in requisite detail the overloading to other body parts caused by the index injury to the left knee. To my mind, the fact that the applicant has had three surgeries to her left knee over some three years, leads to an obvious conclusion that the applicant has not relied on her left knee.
This is also in accordance with the opinions of Dr Dias and Dr Berry who both reached the conclusion that the applicant sustained consequential injuries arising from altered gait. Indeed it should be observed that even Dr Powell in his examination in 2013 observed an antalgic gait which was also observed in his examination in 2017.
I therefore accept that the applicant presents with an antalgic gait which is in accordance with the opinions formed by Dr Dias and Dr Berry.
The final assault appears to be on the general basis that various treating opinions have not been provided by the applicant in support of her claim. I was referred to Dr Crawford, Dr Khan and Dr Morgan.
The applicant is not required to put every medical opinion and all treatment before the Commission. The requirement is that they satisfy the Commission Member to the requisite standard in respect of their claim on the balance of probabilities. It is often open for a forensic decision to be made by legal practitioner to the extent that they are satisfied that they have enough material to place before the Member to prove their case. The respondent has the opportunity to seek directions for production respect of various treating doctors and obtain their notes if they wish to challenge the case on that basis.
I do not criticise the applicant for not putting every medical opinion and taking it every medical opinion in respect of the claim. As seen by the clinical notes in the treating notes the applicant has had significant treatment in respect of many body parts and I am satisfied that the applicant has provided enough medical material for these be a fair climate to assess her claims.
I am satisfied that the applicant’s history complaint in her statement should be accepted in particular her complaints in respect of symptomatology arising over time following the index incident to various body parts.
It should observed that in respect of the claim for the upper digestive tract there is no opinion that has been placed before me to challenge the applicant’s claim in respect of that body part. I accept that there is a consequential condition in the upper digestive tract.
In respect of the consequential condition to the right hip, I have share the respondents concerns in relation to this body part. I am troubled that there is no complaint recorded by Dr Dias or Dr Berry in their reports. I understand that the applicant’s evidence is that the right hip pain started in 2018 and Dr Dias had prepared his opinions before that date. His opinion is therefore understandably silent on the matter.
The applicant was referred to Dr Rooney in respect of the right hip. I was not taken to any treating material from him, nor can I locate any. It would have been of assistance to me to hear from Dr Rooney in respect of this body part.
I am well aware that the applicant does not need to present a ‘perfect case’. The burden of proof is only on the balance of probabilities. The only support for the right hip medically is in the final report from Dr Berry who takes a history that the right hip pain started a few months before that final consultation in July 2020. This is however not consistent the applicant’s statement evidence or the fact that she underwent an MRI of the right hip on 7 July 2018. It also does not fit with a history of bilateral hip pain given to Dr Powell in 2017.
It is further perplexing that Dr Berry examined the applicant on 31 July 2018 and at that stage no complaint was made in respect of the right hip, some 24 days after an MRI was performed on the right hip.
I therefore accept that whilst there is some evidence on a condition in the right hip, for the reasons outlined in the preceding paragraphs, I am not satisfied that the applicant has suffered a consequential condition in her right hip to the requisite standard of proof. Simply put, I am perplexed about the timing of onset of complaint and the lack of complaint recorded.
In conclusion, I am not satisfied that the applicant has sustained consequential condition to the right hip.
I therefore make the following orders:
1.    The applicant suffered consequential conditions to her right knee, left hip, lumbar spine and upper digestive tract as a result of the index injury on 13 June 2012.
2.    Award for the respondent in respect of the claim for a consequential condition to the right hip.
3.    The matter is to be remitted to the President to be referred to a Medical Assessor for whole person impairment assessment of the left knee, right knee, left hip, lumbar spine and upper digestive tract.
4.    The date of injury is 13 June 2012. The Application to Resolve a Dispute and Reply are to be provided to the Medical Assessor.

[2022] NSWPIC 86

2 March 2022