Gu v Recruitment and Labour Services
[2024] NSWPIC 213
•29 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gu v Recruitment and Labour Services [2024] NSWPIC 213 |
| APPLICANT: | Jing Gu |
| RESPONDENT: | Recruitment and Labour Services |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 29 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 66 benefits; lumbar spine accepted but right hip denied; whether applicant satisfied onus of proof; whether medico-legal opinion of applicant deficient; Held – issue to be determined by expert evidence; ACW v ACX considered and applied; respondent expert opinion of little weight; applicant expert preferred; Mosawi v Baron Forge Pty Ltd applied regarding nature of injury to be remitted. |
| DETERMINATIONS MADE: | The Commission finds: 1. The applicant suffered injury to her right hip on 23 June 2022. The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for a whole person impairment assessment on the following grounds: Date of injury: 23 June 2022. |
STATEMENT OF REASONS
BACKGROUND
Jing Gu, the applicant, brings an action against Recruitment and Labour Services, the respondent, for payment of lump sum compensation in relation to injury to the lumbar spine and the right lower extremity (hip).
Dispute notices were issued and the Application to Resolve a Dispute was duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) has Ms Gu proven that she suffered injury to her right hip?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter was heard in person on 20 March 2024. Mr Bill Carney of counsel appeared for the applicant instructed by Mr John Andriano. Mr James McEnaney of counsel appeared for the respondent instructed by Ms Sharon Watts. Mr Paul Leonard 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) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents from the respondent dated 15 March 2024.
Oral evidence
No application was made in relation to oral evidence.
Preliminary
Mr McEnaney indicated that pursuant to the provisions of Regulation 44 of the Workers Compensation Regulation 2016, he was relying on the forensic medical report of A/Prof Paul Miniter dated 4 October 2023.
FINDINGS AND REASONS
Evidence
The applicant
Ms Gu made a statement dated 14 December 2023. She had arrived in Australia from China in 2019 and was born in 1988. She commenced work with the respondent in February 2022 as a picker and packer. She said:[1]
“5. On the 22nd June 2022 whilst working at the warehouse I lifted a box which was more than 15 kg from a shelf above my head. I twisted my right side and felt immediate pain in my lower back and right hip. I heard a snap in my lower back and right side causing me to drop the box.
6. I did not complain or report it that day, but during the rest of the day the pain got much worse. I knew I had done some serious damage when I found that I couldn't turn over on my bed that night. I couldn't sit up or walk normally the next morning, so I reported it to management the next day on the 23rd June 2022.”
[1] ARD page 1.
Ms Gu consulted her general practitioner (GP) Dr Miranda Lau “soon after.” She said that in early July she had started seeing “a physio” and said that after two sessions her pain worsened. She said:[2]
“I couldn't stand up to go to the toilet during the night, and I couldn't walk normally and walked with pain once I eventually got off the bed. I have to stay on bed for a few months due to the pain and inflammation in my lower back and right butt and radiant to my right leg and feet.”
[2] ARD page 1 paragraph [8].
She said that on 22 July 2022 she changed her GP and consulted Dr Danny Tang in Blacktown. Dr Tang organised some hydro-physio for her, which she said made her worse, staying on her bed “for months with severe low back pain, and radiating from my right hip down my right leg”.
She said weekly benefits ceased in January 2023.
At paragraph 12 she said:[3]
“…Psychologically harm [sic] was also inflicted on me in my vulnerability by the bullying of my employer (Workforce International) and the individual agenda's (games) of case managers at EML, and their liaisons (strong arm tactics) with GP's physiotherapists rehabilitation coordinators which supposedly to help me”
(as written)
[3] ARD page 1.
Ms Gu said that prior to this incident she had not suffered any back pain.
Ms Gu completed her statement by saying she was now a student of nursing, and doing placement in her allocated hospital. She found that while she was doing her placement, her lower back pain and numbness in her whole right leg radiated down to the soles of her feet, “that I can only walk sideways”.
Treatment
Dr Miranda Lau
As indicated, Ms Gu first consulted Dr Miranda Lau. No clinical notes were lodged from her practice, but the respondent in its ALD lodged a number of questions with her on
25 July 2022.[4][4] ALD page 11.
Dr Lau answered that the diagnosis was “low back injury – no bony injury”. She said that
Ms Gu could not support the weight of the box when taking it down from the shelf. She had suffered a soft tissue injury “potentially caused disc bulging”. Ms Gu was noted to be a new patient, and that an MRI had been done. Dr Lau thought the duration of physiotherapy treatment she had ordered once to twice a week was not certain.The MRI scan referred to was of the lumbar spine, and took place on 25 June 2022.[5] It showed “mild degenerative spondylosis of the lower lumbar spine”.
Physiotherapist James Coombs
[5] ARD page 3.
The physiotherapist referred to by Dr Lau was Mr James Coombs, who treated Ms Gu on 19, 21 and 22 July 2022.[6] On 19 July 2022 Mr Coombs took a consistent history that whilst carrying a heavy box from overhead she felt a sharp pain as she twisted. Mr Coombs indicated by a series of crosses on a diagram of the body that there was pain across lower back and down the right side to the ankle. On 21 and 22 July 2022 Mr Coombs noted that there was decreased sensitivity down the right lateral leg following L3/4 and L4/5 pathway. He also noted as an objective sign:
“Rotation: loading right hip with bilateral rotation.”
Medical centre notes
[6] ARD pages 4-7.
The clinical notes of the Medical Centre at 8 Patrick Street Blacktown were lodged.[7] They commenced with a visit to GP Dr Tang on 22 July 2022 and covered the period up to
30 September 2022.[7] ARD page 12.
The entry of 22 July 2022 recorded a consistent history of the injury, but described the twisting as a twisting of the waist, and that Ms Gu jarred her right waist. The results of the MRI scan were noted, and it was also recorded that the physiotherapy had made her worse. It would seem that Dr Tang referred Ms Gu on the same day for assessment by physiotherapist Nathan House, whose opinion was noted that there was radiculopathy in the right lower limb. It was also noted that there was “tenderness of the right hip”.
Physiotherapist Nathan House
A full report was lodged from Mr Nathan House dated 8 November 2022.[8] He took a consistent history of the injury and noted the lumbar spine MRI conclusion. Mr House noted that subsequent independent medical assessment determined that she had an aggravation of facet joint arthritis on the righthand side.
[8] ARD page 20.
Mr House said that on most assessments Ms Gu complained of pain on palpitation over the lower back (right worse than left) and pain “in the right lateral hip”.
He noted that Ms Gu “now” had a normal range of motion in the lumbar spine, and normal movements of the right hip. He noted there had been an antalgic gait initially but that it was much improved. He noted that Ms Gu had pains with hip abduction and external rotation movements of the right hip.
A diagram was prepared by Mr House showed a general area of complaint around the lower back but a specific indication of complaint about the right hip. As a barrier to return to pre-injury duties, Mr House noted, relevantly, right hip pain.
Investigations
On 6 February 2023 a further lumbar MRI scan was performed at the request of Dr Henry Gao from the same practice as Dr Danny Tang. The results were of minor lower lumbar spondylosis, with some potential for nerve root contact at L5/S1.
On 18 March 2023 an MRI of Ms Gu’s right hip was carried out at the Waratah Private Hospital in Hurstville, again at the request of Dr Gao.[9]
[9] ARD page 29.
As noted, the clinical notes from that practice only covered the period up to
30 September 2022 but the fact of the MRI of the right hip on 16 March 2023 does raise an inference that there were complaints by Ms Gu to the practice in general and Dr Gao in particular.The findings were:
“Gluteus medius insertion demonstrates a high-grade partial thickness deep surface tear anteriorally 5mm width involving approximately 2/3rd of the tendon thickness.”
No other pathology was noted and the conclusion by the radiologist was:
“Partial-thickness tear of the gluteus medius insertion anteriorally”.
Dr Khan
Two reports from Dr Azhar Naseeb Khan were lodged. Ms Gu lodged Dr Khan’s report of
23 August 2022[10] and the respondent lodged a further report from Dr Khan dated14 March 2024.[11][10] ARD page 8.
[11] ALD page 1.
Dr Khan was described as a “consultant occupational physician”. Dr Khan explained that in August 2022 Dr Tang had asked him to assess Ms Gu’s fitness for work.
Report 23 August 2022
In his first report Dr Khan noted in passing that Ms Gu holds a Bachelor Degree in Journalism. He took a history of the duties she was required to perform and noted that whilst she was on good terms with her co-workers, her supervisor was “aggressive and rude”.
She told Dr Khan that her workplace was not safe.
He noted Ms Gu’s self-reported capabilities, current treatment and past medical history. He said that she was now able to walk for up to 30 minutes “per session” by which I assume
Dr Khan was administering some kind of physical treatment. His address was the same as Dr Gao.Dr Khan did not take any history of the injury itself nor of Ms Gu’s complaints.
On physical examination Dr Khan noted that Ms Gu had an antalgic gait and that her pelvis was in a tilted position whilst she was standing.
He noted pain on palpation of the right L5 region “and right buttock”.
On examination Dr Khan noted a decreased sensation in L5 distribution but a negative straight leg raised bilaterally.
Dr Khan said “based on my medical assessment” the presentation was consistent with the right lumbar facet joint arthropathy/dysfunction.
He said “Whilst bone scan studies did not reveal any facet joint arthropathy, I am of the opinion her history and clinical examination is consistent with facet joint arthropathy/dysfunction”.
Report 14 March 2024
In Dr Khan’s second report, he gave a history of the injury as well. Dr Khan said:
“Jing reportedly injured her lower back at work on 23 June 2022. She recalled that she injured her lower back whilst she was handling a box overhead. The box approximately weighed 15 kg. She reportedly injured her lower back whilst she was twisting her torso to the left. Jing recalled that she heard a crack as she twisted her torso to the left. This was reportedly accompanied with pain in her right lower back and right gluteus muscle.”
Dr Khan also reproduced the workplace incident report of 24 June 2022:
“….She felt her waist was twisted in a second. She thought it was not a big deal but it is. She felt pain in her waist (right side), she could not turn over in bed, sitting down slowing, walked slowly. As she moved her right leg, she cannot stand straight or bend over, she can only walk sideways.”
He examined her in August and then again in September 2022. He had not seen her since saying “September 2022 was the last time I physically examined her”.
Dr Khan then related a description of symptoms which he described as “current symptoms”.
Relevantly (he was also looking after her right elbow pain), he reported on the lower back pain which he described as being intermittent and under “self reported capabilities, Dr Khan noted that Ms Gu developed pain in her lower back “and right hip joint” when she used stairs.
On examination Dr Khan recorded a complaint of “tingle sensations in her right buttock and calf muscle”.
Dr Khan surveyed the imaging studies and noted the conclusion by the radiologist of a partial thickness tear of the gluteus medius insertion.
He also surveyed the report of A/Prof Miniter of 4 October 2023, citing several paragraphs thereof without comment. Dr Khan did the same regarding the report of Dr Robin Diebold of 22 December 2022 and that of Dr Graeme Doig of 6 October 2022.
He also reproduced some paragraphs in his report of 23 August 2022 and he also referred to the report of psychiatrist Dr Kumar.
Dr Khan’s summary and assessment was that Ms Gu “reportedly developed acute lower back pain and pain in her right buttock…….”
Dr Khan noted the right hip MRI scan[12] and said:
“…I am of the opinion that her right hip and gluteal pain can be partially due to referred pain from her lumbar facet joints. That is why I previously suggested that she should be referred to see a pain specialist if no specific radiculopathy was identified.”
Dr Khan noted that Ms Gu was attending nursing school and currently completing 2 units of course work.
Dr Medhat Guirgis
Dr Guirgis was retained by Ms Gu. He is a consultant orthopaedic surgeon and reported on 13 June 2023.[13] He took a consistent history of the injury. He noted Ms Gu’s ongoing complaints as being lower back pain and stiffness, felt some days more than others, with pain on the right side of her lower back extending to involve the right sacroiliac joint “and adjoining right buttock and right hip area”.
[13] ARD page 31.
Ms Gu complained of some right S1 radiation down the back of her right leg varying in severity and intensity.
On examination of the right hip Dr Guirgis noted:[14]
“Tenderness over the trochanteric area of the hip laterally and posteriorly. Pain was produced with external rotation and abduction and by restricted abduction.”
[14] ARD page 32.
Dr Guirgis included the MRI scan results and in relation to the right hip he gave the following diagnosis:[15]
“Post-traumatic onset of symptoms and signs of Greater Trochanter Pain Syndrome in the right hip joint caused by sudden unguarded contraction.” There was MRI evidence of a high-grade partial-thickness deep surface tear anteriorly of the gluteus medius insertion measuring 5 mm width involving approximately 2/3 of the tendon thickness.”
[15] ARD page 34.
Dr Guirgis also produced a diagrammatic scheme of the area of complaint regarding the right hip and gluteal area.[16]
Dr Graeme Doig
[16] ARD page 43.
Dr Doig, whose expertise was given as “Orthopaedic”, gave a report to the insurer dated
6 October 2022.[17] He took a consistent history of the injury of 23 June 2022 but was concerned principally with a complaint about a right elbow injury. He noted that MRI was undertaken on 25 June 2022 which showed degenerative disc and facet joint arthritis at L5/S1 and to a lesser extent at L4/5.[17] Reply page 7.
Dr Doig noted a current complaint of “right sided, lower-back pain ….. occasionally she suffers symptoms in the right leg.”
Dr Doig examined the right elbow and with respect to the lower back noted tenderness in the right lumbar sacral area. He noted straight leg raising was full with negative nerve-root tension signs.
He said:[18]
“Ms Gu did not demonstrate any voluntary exaggeration of symptoms or restrictions. She presented in a forthright manner.”
Dr Robin Diebold
[18] Reply page 11.
Dr Diebold, orthopaedic surgeon was retained by the insurer and reported on
22 December 2022. Dr Diebold took a consistent history of the injury noting “she developed immediate lower back pain radiating to the right buttock”.[19][19] Reply page 16.
Dr Diebold noted the MRI scan of 25 June 2022 of the lumbar spine.
He took a history that on 27 July 2022 Ms Gu ceased work “due to bullying and harassment”. (There is apparently another claim for psychological injury).
Dr Diebold noted present symptoms being relevantly “right lower back pain, radiating to the right buttock….”[20]
[20] Reply page 17.
On physical examination Dr Diebold found that Ms Gu displayed a number of signs of non-organic presentation including exaggeration symptoms, superficial tenderness, inconsistency, positive distraction test, non-anatomical numbness and a market disparity between the symptomatic level and absence of objective signs.
He did not investigate the right hip specifically.
Associate Professor Paul Miniter
A/Prof Miniter, orthopaedic surgeon reported on 4 October 2023.[21] He also took a consistent history, but said:
“I asked her to describe the episode and she told me that she was lifting down a box weighing about 15kg from an above head height when she felt some discomfort in her lower back. She did not describe any pain in her right hip. She did not twist her back, nor did she fall.”
[21] Reply page 25
A/Prof Miniter noted the MRI scan of the lumbar spine in July 2022. He said:[22]
“Finally she had further imaging, this done at Castlereagh imaging and this of the right hip in March 2023……There is thought to be a partial thickness tear of gluteus medius, but you will note that this is not the area of her pain.”
71.A/Prof Miniter made the following comments:[23]
“She told me that she is not fit to return to work. She does not have permanent residency in Australia and is supported by her landlord who I understand is Christian as is she. She has no plans to return to work and feels that the jobs that have been offered to her do not fulfil her criteria for employment.
When she was living in China, she was engaged in translating between Mandarin and Portuguese working for the Chinese Government. She is not so engaged in Australia. She has no plans to retrain herself at this stage.”
[22] Reply page 27.
[23] Reply page 27.
A/Prof Miniter said on physical examination:[24]
“….. There is no restriction in straight leg raising or femoral nerve stretch test. However, movement of the right hip causes her discomfort, this deep into the buttock. It is in the region of quadratus femoris or piriformis. The area associated with gluteus medius and certainly into the greater trochanter is non-tender. Abducting the hip while she lies on her side does not reproduce her symptoms. …”
[24] Reply page 27.
A/Prof Miniter commented on Dr Guirgis’ report, observing “I am not sure of the method by which he regards the latter diagnosis as being associated with the workplace”.
“The latter diagnosis” was a reference to Dr Guirgis’ diagnosis of a greater trochanter pain syndrome in the right hip joint caused by sudden unguarded contraction.
A/Prof Miniter thought that Ms Gu’s behaviour patterns were “a most unusual reaction”. He said:
“In my opinion her behavioural patterns are most unusual and her insistence on being unable to work in any capacity, particularly when she takes no analgesia at all, does not have a clear explanation.”
A/Prof Miniter clearly felt that he was obliged to make an explanation regarding the pathology found by MRI in the right hip, and he returned to that subject in his commentary. He said:[25]
“My interpretation of the matter is that the issues associated with the right hip region are an incidental finding. The partial thickness gluteus medius tear is unusual in a woman of her age group but it is most unlikely that it is due either to her rehabilitation or to the initial incident at work. In any event, the pain that she has is not associated with the gluteus medius region on clinical examination with the pain being in the posterior aspect of the hip in the region of quadratus femoris or piriformis.”
[25] Reply page 28.
Later in his report A/Prof Miniter was asked to comment on Dr Guirgis’ report. He said[26]:
“I note that Dr Guirgis has provided a rather long and additive report. I am very interested indeed that he believes that the hip is in some way associated with this matter and that he believes that she has greater trochanteric pain syndrome when her pain is actually in the buttock. With the greatest of respect for Dr Guirgis, the matter simply does not make sense.”
SUBMISSIONS
Mr Carney
[26] Reply page 33.
Mr Carney noted that the focus of the medical practitioners initially was on the lumbar spine, and it was not until after Ms Gu was being treated by a physiotherapist, Mr Nathan House, that attention shifted to the right hip, as was indicated by the MRI of the right hip on
16 March 2023. He submitted that contemporaneous evidence disclosed complaints about the right hip at an earlier stage, but were initially confused with radicular pain referred by the aggravation of degenerative changes in the lumbar spine.Mr Carney referred to physiotherapist Mr Coombs’ specific record of an “offloading right hip with bilateral rotation”. Similarly, when Ms Gu saw physiotherapist Mr House, he recorded pain in the right lateral hip.
Mr Carney referred to the report of Dr Khan of 23 August 2022.[27] Dr Khan noted on examination that Ms Gu had, in addition to other findings, pain on palpitation of the right L5 region and right buttock, Mr Carney said. Dr Khan thought that Ms Gu’s clinical presentation was consistent with a right lumbar facet joint arthropathy/dysfunction and right L5 neuropathy, Mr Carney observed, he did also note complaints regarding the right buttock.
[27] ARD page 8.
Dr Khan’s report of 14 March 2024 was not of any assistance, Mr Carney submitted.
Mr Carney conceded that initially Ms Gu’s treatment was to treat the spine, but that following Mr House’s report of 8 November 2022 an MRI scan of the right hip was undertaken on
23 March 2023, which identified pathology.Mr Carney referred to Dr Guirgis’ report and submitted that I would accept the diagnosis of greater trochanteric pain syndrome in the right hip. Dr Guirguis clearly noted the MRI scan and his diagnosis was confirmed by the objective evidence.
So far as Dr Doig and Dr Diebold were concerned, Mr Carney submitted that Dr Doig’s report was not inconsistent with the complaint of pain in the right hip and indeed Dr Diebold’s reference to radiating pain may also have been a misdiagnosis as to the problem in the hip.
In any event Mr Carney submitted there was no objective basis for the assumption made by both Dr Doig and Dr Diebold that Ms Gu was suffering from referred pain in her lumbar spine.
So far as A/Prof Miniter was concerned, Mr Carney noted that his opinion was given a considerable period after the injury. Mr Carney referred to A/Prof Miniter’s factual error about
Ms Gu’s current situation, noting that A/Prof Miniter was incorrect when he said that Ms Gu did not get back to work, as the evidence established that she was doing a nursing degree. She was in fact, Mr Carney said, on a placement at the time of the preliminary conference, and was excused attendance on that account. That misdescription of the history raised concerns about A/Prof Miniter’s partiality, I understood Mr Carney to submit, and might explain the dismissive tones which coloured A/Prof Miniter’s report. A/Prof Miniter did not explain why the pathology found on MRI in Ms Gu’s hip was an incidental finding, nor did he give any alternative explanation for its presence.
Mr McEnaney
Mr McEnaney kindly reminded me that the applicant bore the onus of proof. He submitted there was sufficient doubt cast by the evidence on her assertion that she had suffered an injury to her right hip, that she was unable to satisfy the terms of s 4 of the 1987 Act that an injury had happened.
Mr McEnaney submitted that the opinion of Dr Guirgis was too imprecise and that a greater trochanteric pain syndrome diagnosis was not supported by the evidence. Mr McEnaney submitted that the appropriate pathology to sustain such a finding was lacking. Dr Guirgis stood alone in his diagnosis, and was not supported by the treating medical practitioners.
Dr Guirgis’s opinion did not “flow through the other records” as an opportunity for treatment either, he argued, which was odd if Dr Guirgis had given a proper diagnosis. Dr Khan’s failure to endorse that diagnosis was noteworthy, he said. Although Dr Khan was an occupational physician, it was not until his report that the respondent and Ms Gu were “fumbling in the dark” for a diagnosis. Dr Khan’s report was quite comprehensive,
Mr McEnaney said, and partly diagnostic, when considered with the other evidence.Mr McEnaney referred to the notes of Mr Coombs, submitting that there had been no mention of any hip symptomology by him. Mr McEnaney submitted that if the tear was traumatic, it would require that the symptoms associated with the tear of the gluteal muscle one might reasonably expect to be most symptomatic acutely after the tear, and not two to three years later. It was not persuasive that the symptoms became acute some months later, he submitted. Mr Coombs’ diagram showed no more than radiculopathy running down the right leg.
Mr McEnaney then addressed the faxed questions and answers from Dr Lau. Mr McEnaney relied on Dr Lau’s provisional diagnosis of lumbar pathology. It was significant, Mr McEnaney argued, that neither the first GP nor the first physio made any findings whatsoever about the hip.
Moreover, Mr McEnaney said, Dr Doig, who saw Ms Gu about three months after the traumatic tear, took histories of matters unrelated to her spine, such as her elbow and psychological problems, but did not mention her hip. This underlined Mr McEnaney’s point, he said, that there was no investigation because there had been no injury. Mr McEnaney stressed that Dr Doig on examination found full straight leg raising on the right, but limited right leg raising became part of the symptom pattern on which Dr Guirgis pressed Ms Gu’s claim for injury.
Dr Diebold was concerned only with the back, Mr McEnaney submitted, and his examination was consistent with lumbar pathology, although straight leg raising on the right was limited to 50 degrees. Thus between September and December there was a reduction in the straight leg raising on the right, Mr McEnaney argued, which has remained reduced since. That reduction occurred too far after the injury to be the result of a traumatic tear, he submitted, and it was up to the applicant to explain why it became more symptomatic at around that period. Again, Mr McEnaney submitted that the examination findings were more in line with radiculopathy than an organic traumatic injury.
The respondent relied however on the opinion of A/Prof Miniter, as he was seized of all the relevant material, Mr McEnaney said. He was accordingly in the best position to diagnose the applicant’s claim. Mr McEnaney referred to A/Prof Miniter’s reservations about Dr Guirgis’ diagnosis and submitted that A/Prof Miniter’s explanation about the appearance of the pathology within the right hip as shown in the MRI scan was more probable. The site of the pain was not congruent with the site of the tear and it could be accepted that the pathology was therefore incidental.
He noted that an MRI scan had been taken of Ms Gu’s right hip on 26 March 2023 but submitted that A/Prof Miniter’s explanation that the pathology therein found was an incidental finding, could be accepted. The symptoms did not appear until the 50° leg raising was reported by Dr Diebold, or perhaps Mr House’s report, but that was months after the episode, Mr McEnaney said.
A/Prof Miniter did not take a history of any injury to the hip, Mr McEnaney said. Mr McEnaney referred to A/Prof Miniter’s comments about Dr Guirgis’s opinion, and his interest in Dr Guirgis’s view that the hip was “in some way associated with this matter”.
Mr McEnaney conceded that Dr Guirgis’ actual description was ‘greater trochanteric pain syndrome in the right hip,’ but he submitted that such a vague definition of the injury would not suffice to establish injury.
Ultimately there is contradictory expert opinion as to the issue, Mr McEnaney said. Whilst there may be some restrictions in the hip, Mr McEnaney submitted that the case which the applicant chose to rely on was that proposed by Dr Guirgis. However Dr Guirgis’ report was not supported by the treating doctors. Dr Guirgis had not been asked to comment on
A/Prof Miniter’s opinion. Dr Guirgis had not been asked to expand on his initial opinion “to give it greater explanatory force” and the applicant’s case was based on the assumption that such a pain syndrome existed, Mr McEnaney submitted. He said that Dr Guirgis did not explain how the greater trochanteric pain syndrome can emerge in circumstances of a gluteal tear, and how the pain can be found in the place where the applicant described it.Mr McEnaney referred to the second report of Dr Khan dated 14 March 2024, saying that its purpose was to demonstrate that he did not refer to Dr Guirgis’ report, although he had it, together with the MRI and A/Prof Miniter’s opinion. His opinion, which acknowledged the complaint of gluteal pain, was that Ms Gu was suffering from referred pain from the lumbar facet joints, in part. If the other part of his opinion was that the gluteal pain was that there had been an injury to the hip, he failed to say so. Dr Khan did not give any support to Dr Guirgis’ opinion, and the applicant had thus failed to satisfy its onus.
At this point I indicated that during the submissions I had access to diagrams of the musculature in the hip from Google. Mr McEnaney asked that if I intended to rely upon that resource that I would advise the respondent so that it would have a chance to comment on it.
Mr Carney in reply
Mr Carney pointed out that Mr House, although reporting in November 2022, had not been consulted since July 2022.
Mr Carney submitted that Dr Guirgis had identified the injury. It was sufficient to define it as a soft tissue injury, as it was not necessary to define any more precisely the injury that was to be referred to a Medical Assessor. In any event there were consistent reports of complaints of pain in the right leg from the beginning which predated the finding of the pathology in the hip, and which were ascribed to Ms Gu’s lumbar condition. The straight leg raising limitations were also consistent with a lumbar pathology.
I granted leave to Mr McEnaney to respond to that submission and he submitted that the nature of the current argument, as I understood it, required some precision in the identification of the disputed injury. The nature of the case required a finding about pathology and it would be an error to find that the injury was anything but the greater trochanteric pain syndrome rather than some undiagnosed soft tissue condition.
Discussion
I agree with Mr McEnaney that the essential dispute is between the opinions of Dr Guirgis and A/Prof Miniter. I also agree with Mr Carney that A/Prof Miniter’s approach was somewhat dismissive. Amongst the documents A/Prof Miniter reviewed was the incident report of
24 June 2022, (that is to say, the day following the alleged injury). That incident report, being contemporaneous with the injury itself, would have been a prime source of reliable history as to the symptoms Ms Gu complained of the following day. It would also have been of some probative value in an objective assessment of the relevant medical issues that A/Prof Miniter was called upon to consider.The incident report, as above reported by Dr Khan, gave a version of events that was consistent with the statement of Ms Gu. To repeat:
“….She felt her waist was twisted in a second. She thought it was not a big deal but it is. She felt pain in her waist (right side), she could not turn over in bed, sitting down slowing, walked slowly. As she moved her right leg, she cannot stand straight or bend over, she can only walk sideways.”
A/Prof Miniter’s approach to the history taking was simply that “I asked her to describe the episode”. A/Prof Miniter advised that Ms Gu “did not describe any pain in her right hip. She did not twist her back, nor did she fall”. The circumstances surrounding the onset of her symptoms, in view of the central issue for determination, required perhaps a more Socratic method of enquiry than that exhibited by A/Prof Miniter. As it is, his description of Ms Gu’s history was somewhat ambiguous.
At the centre of this dispute is the injury to the right hip. Until 16 March 2023 none of Ms Gu’s medical treatment was concerned with the right hip, and indeed it was assumed that Ms Gu was suffering a lumbar facet joint injury. However, when A/Prof Miniter assessed Ms Gu, he was aware of the 16 March 2023 right hip MRI scan, and he was aware that it revealed a gluteus medius tear. A/Prof Miniter was also aware that Dr Guirgis had identified the tear as relevant to her greater trochanteric pain syndrome.
A/Prof Miniter’s description of Ms Gu’s history was also somewhat ambiguous. A fair reading of his report suggests that Ms Gu did not volunteer any history about her right hip. That could be for a number of reasons, including an assumption that A/Prof Miniter was aware of the facts of her case. I decline to draw any inference that, because she did not mention her hip, she did not have any hip pain. As indicated, Ms Gu’s initial treatment was predicated on an injury to her lumbar spine, but her complaints were recorded as including:
(i) her waist was twisted in a second… she felt pain on the right side of her waist, she could not turn over in bed… as she moved her right leg she could stand straight (24 June 2022 incident report as indicated);
(ii) twisted when carrying heavy box from overhead sharp pain lasted overnight: offloading right hip with bilateral rotation (to Mr Coombs, 19 July 2022);
(iii) her twisting and jarring her waist, tenderness on the right hip (to Dr Tang
22 July 2022);(iv) pains with hip abduction and external movements of the right hip (Mr House,
July 2022);(v) twisting her spine under load developing right-sided, lower back and buttock pain (Dr Doig, 23 September 2022);
(vi) twisted while lifting heavy box from above her head. Developed immediate low back pain radiating to the right buttock (Dr Diebold, 12 December 2022);
(vii) the pain affected the right side of her lower back extended to involve right sacroiliac joint and adjoining right buttock and right hip area (Dr Guirgis,
13 June 2023), and(viii) pain was felt in the right lower back and right gluteus muscle (Dr Khan,
14 March 2024)The complaints about the right hip pain were consistent from the day following the incident, as I accept Ms Gu’s later explanation in her statement of 14 December 2023 that she felt immediate pain in her lower back and right hip, “I knew I had done serious damage when I found out that I couldn’t turn over on my bed that night. I couldn’t sit up or walk normally the next morning”.
Seen in the light of the subsequent MRI revelation that Ms Gu had sustained a not insignificant tear in her gluteus medius, these complaints attain a significance that was not appreciated at the time. Indeed Dr Miranda Lau, whom Ms Gu first attended, advised that the injury was a soft tissue low back injury which potentially caused disc bulging.
In any event A/Prof Miniter’s comments following his advice that Ms Gu did not describe any pain in her right hip, begs the question as to whether she actually told A/Prof Miniter that she did not twist her back or fall, or simply that she did not volunteer that information to A/Prof Miniter. (The reference by A/Prof Miniter to a fall was curious, as it is not been suggested in the evidence that Ms Gu experienced a fall). If A/Prof Miniter was suggesting that Ms Gu actually told him that she did not twist her back, then his failure to comment further on this clear inconsistency in the histories would be remarkable. However it is more likely that he made that gratuitous remark as part of his generally dismissive approach, and it is difficult not to read into that approach a hostile attitude to Ms Gu.
I note Mr Carney’s submission that A/Prof Miniter’s opinion might have been coloured by some animus against Ms Gu, as A/Prof Miniter allegedly took an incorrect account of her post injury history. A/Prof Miniter remarked that Ms Gu told him she was not fit to return to work, that she did not have permanent residency, and that she was supported by her landlord who was a Christian, as was she. Ms Gu, A/Prof Miniter noted, had no plans to return to work, notwithstanding that she had previously worked for the Chinese Government as a translator whilst living in China.
This history was certainly looked on negatively by A/Prof Miniter, who said that Ms Gu’s behavioural patterns were most unusual, and that her insistence on being unable to work in any capacity was inexplicable. However, I note that A/Prof Miniter took this history on
25 September 2023. Ms Gu said in her statement of 14 December 2023 that she was “now” a student of nursing and it may be that when she was assessed by A/Prof Miniter that her attitude to working was accurately recorded. It is relevant to note that Ms Gu is also claiming that her employment with the respondent resulted in her suffering a psychiatric injury. It is therefore prudent to approach her evidence with some caution, as some of her statements have been somewhat florid.In any event, I accept that A/Prof Miniter did not accept Ms Gu as being genuine, which his history taking and commentary showed. He described Ms Gu’s behavioural patterns as being “most unusual” on at least four occasions. He said:[28]
“Her behavioural patterns are most unusual and her insistence on being unable to work in any capacity despite the fact that there are no significant physical findings nor abnormalities identified on the investigations suggest a degree of abnormal illness behaviour. I am reluctant to comment upon the prospect of exaggeration or intentional feigning. I simply have no explanation for her behaviour.”
[28] Reply page 32.
A/Prof Miniter’s opinion that there were no “significant physical findings nor abnormalities identified on the investigations” however, needs closer scrutiny.
The radiologist commented on the MRI scan of the right hip on 16 March 2023 as a “partial-thickness tear of the gluteus medius insertion anteriorally,” but the tear itself was described as a “high-grade” deep surface tear of 5mm width and involving approximately 2/3rd of the tendon process. This finding could not be described as being of no significance, and
A/Prof Miniter did not pretend otherwise. His explanation was that the tear was not a relevant abnormality, and the reasons for that finding require further consideration.A/Prof Miniter, when he was outlining Ms Gu’s history, noted the right hip MRI and acknowledged that it revealed a partial thickness tear of the gluteus medius, but immediately stated “but you will note that this is not the area of her pain.”
That addendum was somewhat curious, as A/Prof Miniter was simply relating the history of the matter. It was not until later in his report when he discussed his findings on examination that he discussed the site of Ms Gu’s pain, saying that movement of the right hip caused discomfort, “this deep into the buttock”. He described the site as being “in the region of quafratus femoris or piriformis”. He further found that the gluteus medius and greater tronchanter area was “non-tender”.
In his commentary he considered the presence of the tear of the gluteus medius. He said that it was “unusual in a woman of her age group”. However he then advised that “it is most unlikely” that it was due to either Ms Gu’s rehabilitation or the initial incident at work. The reason advanced by A/Prof Miniter was that “the pain she has” was not associated with the gluteus medius region, but rather in the posterior aspect of the hip in the region of the quadratus femoris or piriformis. He also said that there was no restriction in the range of the hip joint to suggest impingement or labral pathology.
In ACW v ACX[29] DP Michael Snell said from [52]:
“52. In Paric No. 2 the High Court said:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
53. In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) discussed the above principles in the context of the Commission. The discussion remains applicable since the relevant commencement of the 2020 Act. Her Honour said:
‘82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA’.”
[29] [2022] NSWPICPD 19
The facts and circumstances on which A/Prof Miniter based his opinion were that his examination revealed complaints of pain related to a different area of the hip, namely the buttock, and that there was no relevant restriction in the hip joint to suggest impingement or labral pathology. He said that “the issues associated with the right hip region are an incidental finding.”
The reliance on the complaints of pain as indicating a different area of the hip is a proposition within the facts of this case that raises some difficulty. It can be seen that the area of complaint by Ms Gu as illustrated in the above bullet point list varies: in some cases the pain is described as within the buttock, in others in the right hip. Dr Khan indeed identified the “gluteus muscle” as the site of pain. I have little confidence that the complaints of an injured young woman can as confidently be isolated to one specific area of the affected hip as
A/Prof Miniter has. He did not consider such matters as referred pain, and he did not consider the prior complaints in context with the varied sites shown in the evidence of either the hip or the buttock. That such complaints were recorded demonstrates a continuous presence of pain in the general hip area. I think it more probable that Ms Gu was indicating that she was having pain in the area of her right hip, as she had indicated consistently in the evidence.The opinion that A/Prof Miniter’s examination showed no restriction in range to suggest impingement or labral pathology is of itself insufficient to establish A/Prof Miniter’s proposition. The results of examination can be incorrect, as this case has already shown, and A/Prof Miniter’s negative attitude to Ms Gu does not engender confidence that the finding is reliable.
Of more significance however, is A/Prof Miniter’s assurance that the pathology revealed within the hip was most unlikely to be due to either Ms Gu’s rehabilitation or the initial incident at work. The evidence before A/Prof Miniter demonstrated that Ms Gu had been making complaints that were consistent with a right hip problem since 19 July 2022, when Mr Coombs noted consistently over the three days he treated her, that she was offloading her right hip with bilateral rotation, which I interpret to mean that he detected a problem with the right hip rotation in his administration of physiotherapy. A bland statement that the tear, which
A/Prof Miniter accepted was unusual, was most unlikely to be due to employment or rehabilitation did not explain how it was that there was a strong temporal connection between the injury and the onset of the right hip pain.Further, the determination that the presence of the tear was “an incidental finding” was also without any satisfactory explanation. Again, in view of the strong temporal connection between Ms Gu’s complaints and the injury, some reasons for making that differential finding were needed beyond a reference to examination findings. No attempt was made to explain the presence of the tear in an area about which Ms Gu had consistently been complaining. It should have been apparent to A/Prof Miniter that the tear, when it was finally discovered, represented an answer to why Ms Gu complained of pain in that area. Such a strong prima facie connection needed to be addressed by reasons directed to the detail of the finding itself. What was it about the pathology found that caused A/Prof Miniter to give an expert opinion that it was “incidental?”
Accordingly I do not attach any weight to A/Prof Miniter’s opinion.
I have listened with interest to the respondent’s submissions. Mr McEnaney made some submissions that the opinions of Dr Doig and Dr Diebold were somehow relevant to the issue, but as both reports were obtained before the right hip MRI of 16 March 2023, they did not contribute to the argument. Dr Doig was concerned with an assessment of the right elbow. Mr McEnaney sought to rely on a contrast in the reported straight leg raising recorded by Dr Doig as being full, when three months later Dr Diebold, who was investigating the lumbar spine, found limitations on the right to 50° straight leg raising, which was thereafter recorded. Mr McEnaney constructed an argument that therefore the right hip injury occurred between the examinations by Dr Doig and Dr Diebold, but against the persistent complaints I have outlined above, and particularly as there was no expert evidence to support
Mr McEnaney’s theory, it may be put aside.Similarly, Mr McEnaney’s submission that the effects of a tear such as that revealed in the MRI could be expected to be most symptomatic after the injury and not years later, must also be rejected. Ms Gu’s account in both her incident report, and her statement show that she realised she had done “serious damage” later that night due to the effects of the injury. In the light of the subsequent history of the matter, it is probable that the traumatic tear was responsible for her pain.
Mr McEnaney sought to enrol the assistance of Dr Khan’s opinion of 14 March 2024, arguing that Dr Khan’s report did not support that of Dr Guirgis. Dr Khan however was a consultant occupational physician and his reports showed his limitations in dealing with causation and liability. Indeed his first report made no mention of the injury and was predicated on the basis that there had been a lumbar facet injury. When he discussed Ms Gu’s case in his second report, it did not give the comfort to the respondent’s case that Mr McEnaney claimed, as
Dr Khan noted the MRI results of 16 March 2023, and stated that the right hip and gluteal pain “can be partially due to referred pain from her lumbar spine”. The use of the word “partially” indicated that there was another cause, which may be assumed to be the gluteal tear.Mr McEnaney submitted that the opinion of Dr Guirgis was too vague to establish injury, a submission which must also be rejected. Dr Guirgis took an accurate history of the injury, noting the later onset of pain in the back and right leg at home the same day. He had access to the 16 March 2023 MRI scan results and his diagnosis was that there was a “post-traumatic onset of symptoms and signs of Greater Trochanter Pain Syndrome in the right hip joint caused by sudden unguarded contraction”. That opinion is consistent with the evidence, and gives a plausible explanation as to how the injury to the right hip occurred. Moreover,
Dr Guirgis then cited the MRI scan results, thus connecting his diagnosis with the tear.I found this opinion to be concise, logical and in keeping with the probabilities.
An argument developed at the end of submissions as to the identification of the injury. In Mosawi v Baron Forge Pty Ltd[30] President Judge Phillips cited the Member’s decision with approval, saying at [66]:
“66….Ultimately, the Member makes the following finding:
‘132. Finally, in Belokoski, Snell DP referred to a submission that the arbitrator had failed to determine the nature of the injury. At [222] he said:
‘222. ... the Commission (in the bifurcated system) has jurisdiction to determine whether a worker suffered injury, and the nature of the injury. The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case. In Kempsey Shire Council v Kirkman[2010] NSWWCCPD 104 one of the grounds of appeal was that an arbitrator had erred in ‘failing to determine the nature of the injury’. Roche DP at [82] dealt with this ground saying:
‘The Council has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury’.
…”
[30] [2022] NSWPICPD 48.
It has not been argued that employment was not a substantial contributing factor to Ms Gu’s injury, nor that it did not arise out of or in the course of employment.
For the above reasons I make the order set out above.
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