Green v Friend Civil Pty Ltd
[2021] NSWPIC 376
•28 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Green v Friend Civil Pty Ltd [2021] NSWPIC 376 |
| APPLICANT: | Aaron Green |
| RESPONDENT: | Friend Civil Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 28 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Consequential conditions; claim for permanent impairment compensation with respect to left foot (accepted frank injury) and disputed consequential conditions to left knee and lumbar spine; whether applicant’s altered gait which has given rise to the issues with the left knee and lumbar spine was caused by the injury at issue or a congenital condition; Held - the applicant suffered consequential conditions to his left knee and lumbar spine as a result of the accepted injury; the respondent’s contention that those conditions were brought about by an altered gait caused by a cavo varus deformity in the applicant’s left foot is not supported by the preponderance of the medical evidence; the applicant’s contention that his injury had led to an altered gait and in turn the alleged consequential conditions was supported by contemporaneous treating and independent medical examination evidence, and on a common-sense evaluation of the causal chain, the knee and lumbar conditions were a consequence of the left foot injury; Kooragang Cement Pty Ltd v Bates and Kumar v Royal Comfort Bedding Pty Ltd followed; Department of Education v Ireland distinguished; matter remitted to President for referral of frank injury to left foot and consequential conditions to lumbar spine and left knee to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his left lower extremity (foot) in the course of his employment with the respondent on 13 November 2012. 2. As a result of the injury referred to in (1) above, the applicant suffered consequential conditions to his left lower extremity (knee) and lumbar spine. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of Injury 13 November 2012. 4. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachment, and (c) Reply and Attachments. |
STATEMENT OF REASONS
BACKGROUND
On 13 November 2012, Aaron Green (the applicant) was injured while working as a labourer and plant operator for Friend Civil Pty Ltd (the respondent) on a construction site in Blacktown. An excavator driven by a co-worker reversed onto the applicant, crushing and injuring his left foot, requiring hospitalisation.
The applicant brings a claim seeking impairment compensation with respect to his injured left foot. That injury is accepted; however, the applicant has also claimed permanent impairment compensation with respect to alleged consequential conditions to his left knee and lumbar spine. These are disputed by the respondent, which alleges the applicant’s altered gait and therefore the knee and lumbar spine conditions, were brought about by an underlying congenital condition in his left foot.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the applicant suffered consequential conditions to his left knee and lumbar spine as a result of the accepted left foot injury.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 30 August 2021. 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.
At the hearing, Mr B McManamey of counsel appeared for the applicant, instructed my Ms E Edgar. Mr Andrew Parker of counsel appeared for the respondent, instructed by Ms D Shivaji.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Consequential conditions to the left knee and lumbar spine
There is no issue that the test for establishing a consequential condition differs from that required for a finding of injury as that term is defined in section 4 of the Worker’s Compensation of 1987 (the 1987 Act).
In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition had resulted from mobilising whilst recuperating from an accepted back surgery. The Deputy President in that matter noted it was unnecessary for the applicant to establish he had suffered a section 4 injury to his right shoulder and said the test for establishing a causal link between an unaccepted injury and an alleged consequential condition requires an examination of the evidence on a common-sense basis as set out in the oft-cited passage of his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
As such, it is necessary to embark upon a common sense evaluation of the causal chain to determine whether the applicant’s complaints regarding his left knee and lumbar spine are causally linked to the accepted left foot injury.
The applicant alleges the consequential conditions were brought about by an altered gait caused by the serious crush injury to the left foot. For its part, the respondent relies upon the opinion of Associate Professor Miniter, independent medical examiner (IME) who is of the view the applicant’s altered gait pattern is caused by a constitutional deformity, namely a cavo varus foot deformity on both feet, worse on the left which causes him to walk on the outside of his foot on the left side and which has led to his left knee and lumbar spine symptoms.
In his statement, the applicant indicated that his injury required the wearing of a cam boot for approximately two months. He also stated that after he stopped wearing the boot, he still walked with an altered gait after the injury and that approximately four to five months after the accident, he started to experience back pain and pain in his left knee.
Mr Parker criticised the applicant’s history in light of the clinical material, which included general practitioner clinical records over the course of many years. The first reference in the clinical records to any issues with back pain or left knee problems was in 2018, some six years after the injury at issue.
Mr Parker submitted that, whilst the usual caution must be taken with respect to histories provided in treating clinical records, one would expect some complaint over a six year period relating to areas of alleged consequential condition and also some comment to be made with respect to the cause of them.
For the applicant, Mr McManamey noted that Associate Professor Miniter’s views are at odds with all of the other medical evidence. No other doctor says the applicant suffers from a congenital abnormality in both feet, and the other doctors have all found significant reduction in range of motion in the applicant’s left foot as a supposed to Associate Professor Miniter, who says he has made an excellent recovery. To the extent the other doctors refer to the applicant suffering a constitutional condition in his foot, they say it is relatively minor.
Mr McManamey also noted that the complaints by the applicant regarding his lumbar spine and his left leg predated his consultation with the applicant’s IME, Dr Stephenson.
Mr Parker submitted Dr Stephenson’s opinion was predicated upon the applicant’s history of the onset of back and left knee pain as soon as several months after the accident at issue, however, the clinical notes did not bare out the truth of that history.
Mr Parker noted, appropriately in my view, that he was not suggesting the applicant was deliberately falsifying his history, rather that he had fallen victim to the common human trait of reconstructing matters when attempting to recall them several years after an event.
I note, however, that Dr Stephenson’s opinion is not in my view reliant upon the fact of the applicant’s knee and back symptoms overcoming him a matter of several months after the incident. In his report dated 28 August 2020, Dr Stephenson provided the following relevant history of injury:
“Since then, Mr Green has continued to experience symptoms and problems with his left foot and ankle. You refer to the symptoms as ongoing pain and sensitivity of the left foot and has significant difficulties going up and down stairs, driving and walking on distances. He walks with a limp at times and his big toe remains swollen and his little toe is bent. Due to the limp he favours his right side and consequently he now suffers from back and knee pain. He grinds his teeth due to the pain and he suffers from anxiety and psychological sequelae.”
It is apparent from this passage that Dr Stephenson is not relying on history of the applicant having suffered knee and back symptoms since four to five months post injury but rather notes the symptoms have developed over time and are ongoing. Dr Stephenson noted the applicant’s left knee becomes sore and he experiences “a sort of pain in the back, tries to avoid stronger analgesics but he can take OxyContin or Panadeine Forte.”
On balance, I prefer the view of Dr Stephenson to that of Associate Professor Miniter. Dr Stephenson’s view concerning the left foot and ankle injury broadly accords with the symptoms recorded by treating specialist Dr Kuo, who noted problems not only with the foot but also ankle. Dr Kuo also regarded the congenital defect in the applicant’s left foot as mild. Moreover, the radiological evidence such as the left foot x-ray carried out on 5 May 2020 noted first MTP joint arthrosis with a moderate degree of osteophytes and soft tissue swelling together with arthrosis in the IP joints of the little toe.
It is also apparent from the contemporaneous treating evidence that the applicant’s problems with his left foot remain ongoing. Dr Kuo provided a report to the applicant’s general practitioner dated 5 May 2020 in which he noted ongoing problems with the applicant’s foot since the injury, including ongoing difficulty standing for long periods and difficulty carrying out employment with most jobs that he has had since the injury. In that report, Dr Kuo referred to a “slight” valgus deformity.
Mr Parker submitted the circumstances of this case were similar to those Department of Education v Ireland [2008] NSW WCCPD 134 (Ireland) In that matter, his Honour President Judge Keating noted at [91]-[94] that it is not sufficient to simply rely on the applicant’s evidence, particularly in circumstances where the evidence is used after an alleged onset of symptoms. In that matter, his Honour said that where an injured worker gives evidence of injury in circumstances where they described injuries and ongoing symptoms in terms consistent with having been derived from extracts of medical reports and records which are not their own words, then limited weight should be placed upon them.
Whilst the decision in Ireland remains good law and I take appropriate note of it, in my view facts of this case are distinguishable from it.
In this matter, there is clinical evidence by way of the clinical notes from 2018 and 2019 which refer to the onset of symptoms consistent with the development of the consequential conditions. To that extent, this matter varies from the circumstances in Ireland, where there was an absence of any documentary evidence from treating records to support any complaints of pain in the regions of consequential injury before they were first report to an IME.
In order for the applicant to succeed, it is not necessary in my view for him to demonstrate the onset of symptoms on balance having taken place within a set timeframe of the original injury. What is apparent, on examining all the treating material, is that he has serious and ongoing symptoms in his left ankle and foot.
This being so, I have no difficulty in accepting the views of Dr Stephenson that the lumbar pain associated with altered gait is a “prime example” of a consequential condition. I accept Dr Stephenson’s finding that there is a history of limp which in term means an altered gait and abnormal pattern of walking secondary to pain in the left ankle and foot because of the limp, whereby the gait is altered. As noted, Dr Stephenson is correct when he notes there is clinical evidence by way of radiology showing gross osteoarthritis in the injured foot, in several locations.
I accept Mr McManamey’s submission made in reply that caution should be taken when relying upon clinical notes to provide opinions as to causation. Mr Parker had submitted one would expect the applicant to have noted to his treating general practitioner that he was having difficulty with his back and knee as a result of his altered gait, however, as Mr McManamey noted the applicant is not a medical expert and it is not his job to provide an opinion to his treating clinicians as to what he thinks the cause of his complaints may be. It is for his treating clinicians to record such matters as they see fit.
SUMMARY
For the above reasons, I find the applicant suffered consequential conditions to both his lumbar spine and his left knee as a result of the accepted left foot injury and all of these body systems will be referred to a medical assessor for determination of the applicant’s permanent impairment.
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