Higgins v Coveberry Pty Limited
[2023] NSWPIC 26
•23 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Higgins v Coveberry Pty Limited [2023] NSWPIC 26 |
| APPLICANT: | Peter Higgins |
| RESPONDENT: | Coveberry Pty Limited |
| Member: | Michael Wright |
| DATE OF DECISION: | 23 January 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation for accepted injury to right thigh and disputed consequential lumbar spine condition as a result of altered gait; also disputed as to whether impairment assessment of right knee and hip requires determination of injury to right knee and hip, or whether it is a medical assessment issue for assessment by a Medical Assessor (MA); causation and history issues considered; Held – injury to right knee and hip not claimed, rather the applicant’s medical assessment was for muscle weakness and loss of function of hip and knee resulting from accepted right thigh injury and weakness and pain; lumbar spine condition resulted from injury to right thigh; matter remitted to MA for assessment. |
| determinations made: | 1. The applicant sustained a consequential lumbar spine condition as a result of the injury to his right thigh on 3 March 2017. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of injury: 3 March 2017 – personal injury (b) Body systems/parts: (i) right lower extremity (right hip and right thigh) (ii) lumbar spine (consequential condition) (c) Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. Application to Admit Late Documents dated 7 December 2022 and attached documents. |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute (ARD) Peter Higgins (the applicant) claimed lump sum compensation as a result of injury sustained on 3 March 2017 in the course of his employment with Coveberry Pty Limited (the respondent). The claim was for injury to the right thigh, for which assessment of the right hip and right knee was sought, and consequential lumbar spine condition.
The respondent did not dispute injury and assessment in respect of the right thigh. In a dispute notice dated 26 November 2020, the insurer disputed injury and entitlement to lump sum compensation in respect of the right hip, right knee and consequential lumbar spine condition.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
At the conciliation/arbitration hearing of this matter on 9 December 2022, the applicant was represented by Mr Perry of counsel, instructed by Mr Velleley, solicitor, and the respondent by Mr Joseph, instructed by Ms Cant, solicitor.
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 Commission and considered in making this determination:
i) ARD and attached documents;
ii) Reply and attached documents, and
iii) Application to Admit Late Documents dated 7 December 2022, and attached documents.
Oral evidence
There was no oral evidence.
The applicant’s statements
The applicant provided statements dated 13 December 2021 and 24 November 2022.
In his statement dated 13 December 2021, the applicant stated that on 3 March 2017 he was walking on a partially constructed floor on the first floor of the building and as he was walking along a beam he miss-stepped and his right leg slipped through the ceiling and became wedged between two hardwood ceiling joists. He said that his right leg was dangling through the ceiling as he pulled himself back up with his upper body and he immediately felt pain and reduced mobility in his right thigh. He said that he could not walk the next day because of significant pain. A few days later he attended the Prince of Wales Hospital as the pain was not improving. He said that there was substantial bruising and he was unable to flex his right knee. He said that X-rays were taken of his right hip, right femur and pelvic girdle and an ultrasound of his right thigh. The next day his general practitioner (GP) Dr Choong referred him for an ultrasound of his right lateral thigh.
He said that he commenced physiotherapy and the bruising took about three months to resolve. He stated that at about the end of the second month after the injury there was slight gradual improvement with physiotherapy. However, he stated that at the end of about three months of the physiotherapy program he attempted to run and after about 30 seconds his leg was collapsing. He stated that he walked with an altered gait and limp and his right leg would give way regularly, especially when walking downhill. The applicant said that his right leg felt tender, weak and heavy. He stated that when he told his GP about this he was referred to Dr Andrew McDonald, sport and exercise physician.
The applicant stated that after about three to four months following the injury he started to develop lower back and pelvic pain as a result of his altered gait and favouring his left leg because his right leg was unable to take the weight. He said that he persevered with the physiotherapy program four months but became frustrated with the slow progress and with his back being “put out” due to being pushed too hard. His GP referred him to a pain specialist, Dr Simon Tame and to an exercise physiologist, Mr Philip Rees.
He said that on 11 October 2019 he attended the Tomaree Community Hospital by ambulance because he had experienced two days of severe lower back pain, radiating to his right thigh, with nausea and vomiting due to the severity of the pain. He underwent an X-ray and was prescribed pain medication. He also attended the emergency department of the same hospital on 4 November 2019 due to severe ongoing lower back pain and muscle spasm. The applicant said that he was referred back to his GP, who arranged for a CT scan of the lumbar spine.
He first consulted Philip Rees on 14 October 2019.
The applicant also stated that he started to see an osteopath, Mr Bernie Payne in mid 2020 and he found those sessions to be helpful.
He also stated that he was referred to a rehabilitation specialist, Dr Lee Laycock who recommended therapeutic massage, continuing osteopath sessions and hydrotherapy. Dr Laycock also referred the applicant for a bone scan in respect of the sacroiliac joint. Dr Laycock also referred the applicant to a counsellor/psychologist with an interest in pain management, Mr Wayne Clark.
The applicant stated that he continued with osteopathy but not physiotherapy or exercise physiology, which was not beneficial.
He stated that he still experiences pain and discomfort on a daily basis and he experiences weakness and fatigue from the middle of his right thigh to the bottom of his knee, sometimes radiating into his right calf. The applicant stated that often his right leg feels tight and cramps, especially when he bends forward. He stated that walking for extended periods aggravates the pain in his leg, especially walking “under load”. The applicant stated that he also has pain in his lower back that radiates into his neck and shoulders as he believes that his right leg cannot take weight and if he needs to carry an object he tries to use the strength in his back and left leg because his right leg is too tired. He stated that this aggravates his back pain. The applicant stated that he has had little treatment in relation to his lower back because the insurer denied liability for his back injury.
The applicant stated that he had not been able to return to his previous employment as a labourer and he has worked in a bottle shop, with restrictions, since about September 2018. He stated that his duties involved stocking shelves and unloading deliveries, including carrying case of beer and wine for distances between 5 and 30m, and the cases weighing somewhere between about 12 to 22kg. He stated that this significantly aggravates his symptoms but he was obliged to continue in this employment for financial reasons. He stated that prior to the accident in 2017 he did not have any previous right leg or lower back symptoms.
In his supplementary statement dated 24 November 2022, the applicant said that in relation to his description of the accident, he added that when he miss-stepped in his right leg slipped through the ceiling, it went through a gyp rock sheet that formed the ceiling of the area below the floor on which he was working. He said that the sheet provided no resistance and his right leg fell suddenly and forcefully through the sheet. He stated that his right buttocks came to rest on the top of the right hardwood joist and his left leg was at an angle such that his left foot was at about the same height as his head.
He stated that in relation to the substantial bruising, it was around the circumference of his right upper leg, primarily on his right upper thigh. The applicant stated that the pain he felt was in his right hip region and around his right upper leg, primarily his right upper thigh.
The applicant also stated that, in relation to his previous statement that he no longer walks with an altered gait or a limp, immediately after the accident he was experiencing severe pain in the hip region and in his right upper leg, particularly the right upper thigh region. He stated that he favoured his left side with any weight bearing activity and, within a few months after the accident, he experienced pain in his right hip region, right thigh and in the quadricep muscles and calf muscle of his right leg. He said that he still experiences those symptoms and he still avoids weight bearing on his right leg as he finds his right leg muscles tire easily.
He said that he understood that the first record of lower back symptoms in various medical records appears in a report of Leal De Carli dated 12 September 2018, but he said that he did complain to those treating him about his back pain after he first noticed it. He said that the absence of any earlier record was probably because of his travel to Poland in June 2017 and on his return to Australia he was referred to Dr Lannigan for the first time.
Prince of Wales Hospital
A discharge referral of the Prince of Wales Hospital dated 6 March 2017 noted that on 6 March 2017 the applicant had been given an X-ray of the right hip, X-ray of the right femur and an ultrasound of the right thigh, results unavailable. The history of presenting complaint was that three days previously at work the applicant’s right leg went through a ceiling and the leg fell through but he stopped the fall with his arms and the right leg ended up suspended through the ceiling that it had gone through. It was noted that applicant thought the right thigh impacted on a beam/rafter within the ceiling structure. It noted that the applicant pulled himself out and there was pain in the right thigh at the time and he had been weight bearing on the leg but with pain, and the pain was getting worse.
On examination, it was noted that the applicant was weight-bearing on the right leg but with a limp. It was noted that the right lateral thigh had an area of old (yellow) bruising with swelling over the lateral thigh, some superficial skin abrasions the no sign of an open wound. It was noted that “exquisitely tender to palpation” and “on palpation of trochanter” the applicant also had “bony tenderness”. Intact sensation over the area of swelling and throughout the right lower limb was noted.
The discharge referral also noted
“Pt not able to SLR due to pain.
Pt knee flexion intact but says tender in Right thigh ++
No bony tenderness of knee, no effusion.
Lower leg NAO to inspection, palpation.
Ankle full ROM.
Pedal pusles intact and equal.
Sensation NAD.”
Clinical notes of the Prince of Wales Hospital also recorded a history that
“3/7 ago was at work and right leg went through a ceiling - leg fell throughbut pt stopped fall with arms - i.e right leg
ended up suspended through ceiling that it went through
Thinks right thigh impacted on beam/rafter within ceiling structure.
Pulled self out.
Pain in right thigh at time.
Has been weight bearing on leg but with pain.
Pain getting worse.
Now any movement of leg very painful over lateral right thigh.
Feels can't move leg/knee - unclear whether patient means stiffness or weakness or limited by pain.
Nil analgesia taken prior.
No back injury or pain at time or since injury
No urinary incontinence/saddle anaesthesia. left sided weakness. bowel disturbance. No back pain, no shooting
pains, no numbness (although pt says feels like a 'cold throbbing' in thigh.”
Bay Medical Group
The Bay Medical Group provided clinical notes. Under “Active Past History” it was recorded in March 2017 there was a work-related right thigh injury, and “chronic pain and subjective weakness”. Also noted was bilateral low back pain on 18 October 2019.
Dr Lannigan, GP, noted on 1 August 2018, in a “case conference” also attended by other persons, “Matt from Green light” and “Leal – exercise physio”, that the applicant was commencing a new job at a bottle shop the following week and was “much improved according to exercise physio”. In the same note Dr Lannigan also recorded that the applicant “still gets leg discomfort [and some] low back pain at times”.
In a note dated 24 August 2018 of a “case conference”, Dr Lannigan noted that the applicant had generally tolerated work duties in the bottle shop and noted some “leg pain and low back discomfort after lifting 16 kg cases of beer”.
On 13 November 2018, Dr Lannigan noted that the applicant was currently coping with all duties at the bottle shop. He also noted “ongoing discomfort in leg”.
In a note dated 16 January 2019, Dr Lannigan recorded that “7 – 10 days ago when working hard had right leg pain, widespread aches wrists, knees and ankles gradually settled over a few days – [some] mild [symptoms currently]”. Dr Lannigan also noted that the applicant was “very disheartened by realisation he cannot handle demanding physical labour likely [used] to… He feels recent back pains limb aches all due to his original right thigh injury”.
In a note dated 12 February 2019, Dr Lannigan recorded “ongoing leg – thigh pain… Fatigues [easily]… Still coping with current workload”. In a note dated 8 March 2019, Dr Lannigan recorded “no change in condition – still gets daily pain and feels right leg fatigues easily”.
In a note dated 16 October 2019, Dr Lannigan recorded that the applicant
“states has had low back pain since saw exercise physiologist 2 weeks ago… Increased pain gradually with acute exacerbation after doing his prescribed gym exercises last week… States pain in back – dull spasming 10/10… Legs feel tired and aching but nil specific symptoms typical of sciatica”.
In the same consultation Dr Lannigan recorded on examination that the applicant “seems in marked discomfort… Marked bilateral paraspinal spasm”. In respect of diagnosis, Dr Lannigan noted “exacerbation of low back pain related to previous work injury?” and “not typical sciatica”. An imaging request was noted in the same consultation for a CT scan of the lumbosacral spine and “43yo male – acute exacerbation low back pain, work [related] injury from early 2017”and in a further imaging request in the same consultation for a CT of the lumbosacral spine it was noted “43yo male – recurring low back pain… > 2 weeks low back pain radiating to buttocks/legs long-term right thigh pain”.
In a note dated 30 October 2019, Dr Lannigan recorded that back pain had slightly improved since chiropractic treatment and “when gets tired at work and favouring right leg tends to get left knee/thigh discomfort”. Dr Lannigan also noted on examination that the applicant said he had some lower back stiffness but no lower back pain, there was “nil sciatica” and “marked paraspinal spasm and loss of lordosis lumbar region”. Dr Lannigan diagnosed “unrelated generalised aches and pains however I do think that his low back pain is directly related to his previous leg injury through mechanism of altered gait”.
Dr McDonald
Dr McDonald, treating sports medicine specialist, provided a treating report to Dr Choong dated 24 May 2017.
Dr McDonald noted a consistent history of injury to the right thigh on 3 March 2017. He also recorded that the applicant was struggling to walk for one month after the injury and the second month after the injury the symptoms were slightly improving but he found that the right knee would give way when he was walking downhill. Dr McDonald also noted that the applicant had been walking more freely over the past three weeks but had ongoing symptoms of heaviness and discomfort in the right anterior thigh, and ongoing weakness on attempting to arise from a kneeling position. He noted that the applicant was unable to run because of weakness. Dr McDonald also recorded that the right lower limb felt heavy on day-to-day walking and the applicant was hesitant to carry weight when walking down stairs or down hills. He noted no lower limb pain.
On examination, Dr McDonald noted decreased quadriceps tone on active contraction of the right quadriceps relative to the left. He also noted weakness but no discomfort on resisted straight leg raising and on resisted knee extension. He also noted normal strength of hip abduction. Dr McDonald noted decreased range of right knee flexion relative to the left with a sensation of lightness more than pain through the anterior thigh. He noted examination of the right hip was normal.
In his treating report to Dr Choong dated 30 May 2017, Dr McDonald noted results of the MRI scan of the right thigh. He recorded that there was no significant muscle injury with no tear and no intramuscular tendon tear. He also noted indistinct areas of oedema and hyper intensity in the vastus lateralus and vastus intermedius muscle consistent with a contusion. He recorded that “the main concern is obviously ongoing weakness and discomfort on loading”. He recommended strengthening exercises.
Mr Broadbent
Mr Broadbent, physiotherapist, provided a treating report to Dr Choong dated 6 June 2017. He noted a consistent history of injury to the right thigh and that the applicant had seen Dr McDonald and that an MRI confirmed no structural damage to the quadriceps. He also noted a history that the applicant said he was having discomfort when strengthening or exerting his right leg. Mr Broadbent noted that clinically the applicant had a full range of motion of his knee and hip without pain. He noted that overall the applicant displayed relatively good function but was still lacking some strength in his right lower limb and recommended some supervised strengthening sessions.
Mr Meoli
Mr Meoli, physiotherapist, provided a treating report to Dr Choong dated 15 June 2017. He noted a history of injury on 3 March 2017 when the applicant fell through a floor injuring his proximal right vastus Iateralus muscle.
Mr Meoli recorded that initially the applicant presented three weeks after the injury with a Trendelenburg gait and limp. He noted that the applicant was unable to complete a squat and favoured his left side with weight-bearing activities. He recorded that the ultrasound reported a low-grade strain to the vastus lateralis muscle extending over an 8cm length. He noted initial good response to treatment with improvement of gait, good motor control of pelvic muscles and progress with lifting capacity. Mr Meoli also recorded that the applicant’s biggest complaint was that he would feel “heavy” in his leg after running or more advanced exercises. He noted referral to an exercise physiologist for a gym based exercise program to speed recovery and muscular strength.
Ms Pryce
In a vocational assessment report to the workers compensation insurer dated 26 February 2018, Ms Pryce of Greenlight Human Capital, recorded a relevant history of injury to the
right thigh on 3 March 2017. She noted initial history of treatment by Dr Choong and Dr McDonald. Ms Pryce noted that the applicant travelled overseas to Poland for eight months. He returned on 30 January 2018. She noted that while he was in Poland his ongoing right thigh pain continued. She also noted that the applicant had recently moved to the Shoal Bay area and consulted Dr Lannigan who referred him for physiotherapy at Hunter physiotherapy.
Mr Steve Royes
Mr Royes, physiotherapist of Hunter physiotherapy, provided a treating report to Dr Lannigan dated 28 February 2018. He took a relevant history of injury. Mr Royes was of the opinion that the injury was not so much a strain or a contusion but “more akin to a crush injury”. He noted that
“Having seen industrial injuries over the years where limbs have been crushed, Peters injury is not so severe but the ongoing nature of his muscle wasting, his allodynia throughout the past year and his muscle weakness is not due to lack of movement but rather a process that is just slow – as crush injuries tend to be”.
He noted on examination that the right leg had significant atrophy compared to the left. He noted that the applicant had issues with endurance and “repeated lifting and sustained squat postures”. He noted that heavy activities were reported as being very difficult as was running and hopping.
Mr Royes also noted
“On testing, it is very obvious that when tired the right leg shakes. That this occurs much earlier than on the left is the telling difference. He has done quite a bit of leg work in rehab over the past year and due to weakness of the quadricep and poor hip control Peter can be prone to patellofemoral pain. This is something we are working on, to improve squat, steps, balance, tolerance of uneven surfaces and carrying.”
Mr Royes also noted current tested tolerances of lifting and squatting and noted that kneeling and deep squats were not well-tolerated. He also noted that the tested tolerances were not symptom-free but were only two tolerances where fatigue and symptoms were in the right thigh and avoiding patellar or knee symptoms. He also noted that the applicant did not have full knee range of movement flexion and is clearly limited his ability to deep squat, crouch, crawl and kneel.
Dr James Lannigan
Dr Lannigan, treating GP of the Nelson Bay medical group, provided a number of reports.
In a report to the workers compensation insurer dated 1 May 2018, Dr Lannigan noted a working diagnosis of contusion to the right thigh sustained in the workplace injury on 3 March 2017, confirmed on MRI scan on 29 May 2017. Dr Lannigan also stated
“Given the prolonged nature of his complaint and apparent slow recovery it is, however, likely his injury is more than just a simple contusion. As noted on assessment by his physiotherapist. Steve Royes, it is likely his initial injury was not so much a strain or contusion but rather a significant crush injury.
This would better explain the prolonged nature of his complaint. Given his duration of symptoms including pain, allodynia and muscle wasting I think it likely Peter now has a Chronic Pain Syndrome or Myofascial Pain Syndrome related to his work place injury.”
Dr Lannigan also noted
“During my consultations Mr Higgins has not obviously demonstrated any psychological issues although I have not as yet directly questioned him about this to date. During the last two consultations Mr Higgins attended with Matthew Peters from Green Light Huma[n] Capital and I did not feel it appropriate to pursue any mental health issues at the time.
Given he most likely has a form of Chronic Pain Syndrome there may well be some role for a psychologist assessment and, or treatment in future.”
In his report to the workers compensation insurer dated 30 January 2019, Dr Lannigan recorded
“Peter was assessed on the 13/11/18 and in a prolonged consultation we discussed his lack of progress. He was able to meet the demands of his new job specifically relating to lifting 20kg. He was frustrated by having to return for updated medical forms and requested a Final Certificate despite having ongoing pain in his leg.
My intent was to indicate that he did not need ongoing medical review with me but his recovery had reached a plateau. It was not meant to suggest he was fit for pre injury duties as he still has significant limitations and pain related to his injury.
…
Mr Higgins current barrier to his preinjury role is his ongoing right thigh pain and easy fatigability of his right leg related to his injury.
…
This comment is based on the subjective report from Peter that he has ongoing symptoms and the report from Leal De Carli dated 12/9/2018… In this report Leal notes that despite improving in many aspects Peter still had continued pain, often with the delayed increase in pain after finishing work. Likewise whilst his functional capacity had improved it was not back to preinjury status.”
In a report to the workers compensation insurer dated 24 January 2020, Dr Lannigan noted that he had discussed the applicant’s symptoms with his exercise physiologist, Mr Rees. Dr Lannigan recorded that “Mr Rees agreed that Peters progress is slow but confirmed Peter has lots of in voluntary low back muscle spasm. Mr Rees agreed with me that this is related to his leg injury as part of lumbar compensation for his leg fatigue discomfort and gait alteration”.
In a referral letter to Dr Laycock dated 27 February 2020, Dr Lannigan noted that currently the applicant had returned to limited duties but continued to have ongoing daily pain in his right thigh/leg with marked fatigue and subjective weakness. He also recorded that
“more recently Peter states he has had constant low back pain since his thigh injury. Peter is keen to have some definitive diagnosis as to why he has ongoing pain/weakness which I have not been able to give him. MRI of L spine does not indicate any nerve impingement and recent EMG studies show no nerve lesion”.
Ms Leal Di Carli
Ms Leal Di Carli, exercise physiologist, provided an exercise physiology final assessment and discharge report dated 12 September 2018. Ms Di Carli noted injury on relevant treatments, and also noted that the applicant had a tendency to favour his left leg and left side when performing floor to waist lifting. She also noted the applicant’s frustration at slow progress of recovery. Ms Di Carli found on knee extension there continued to be some muscle weakness acting as a barrier to deep squatting and lunging. She recorded that she focused on high volumes of repetitions “too closer mimic the demands of his new role and addressing any difficulties Peter was having including occasional compensatory pain in his opposite leg and some lower back pain”. She also noted that the applicant experienced some compensatory discomfort in his lumbar spine following high-volume repetitions and she discussed stretches and breaks to help combat this.
Dr Robin Mitchell
Dr Robin Mitchell, occupational physician, provided an injury management consultation report at the request of the workers compensation insurer dated 1 March 2019. Dr Mitchell noted the history of injury on 3 March 2017. Dr Mitchell recorded a history of right thigh pain and restrictions and current continuous right thigh pain. Dr Mitchell recorded a history of treatment including attendance on physiotherapy with Michael Broadbent “who diagnosed a contusion crush injury to the right thigh”. On examination, Dr Mitchell noted range of movement in the thoracolumbar back as normal and the right leg was clinically normal apart from some tenderness over the lower lateral aspect of the right thigh. Dr Mitchell noted knee joint and hip joint movements were full in all directions. Dr Mitchell did not record a history of lumbar spine, right hip or right knee symptoms.
Dr Simon Tame
Dr Tame, specialist pain management physician and specialist anaesthetist, provided a treating report to Dr Lannigan dated 2 July 2019.
Dr Tame noted a history that in March 2017 the applicant fell through a partially constructed floor and was wedged between the joists. Dr Tame noted that the applicant sustained a crush injury to the right thigh and that he has gone on to develop persistent pain in the right thigh which radiates distally. Dr Tame was of the opinion that while there were some neuropathic characteristics, the applicant’s pain was unlikely to have a significant neuropathic component. He also noted that in addition to pain the applicant reported ongoing subjective weakness, fatigue and instability in the right leg. Dr Tame recommended a pain focused exercise physiology program with Phil Rees.
Tomaree Community Hospital
The Tomaree Community Hospital provided emergency Department triage notes dated 11 October 2019. It was noted that the presenting problem was acute pain following more than two days of back pain and progressively worse pain over the last two days.
The discharge referral of the Tomaree Community Hospital dated 11 October 2019 noted the presenting problem was “acute on chronic lumbosacral pain with pain radiating to right thigh to patellar level”. Assessment was recorded as “known right thigh trauma with ongoing nerve damage and lumbosacral disc syndrome since accident”. Symptoms on that day were noted as “acute paravertebral spasm lumbar with midline tenderness L45”.
The same hospital also provided emergency Department triage notes dated 4 November 2019. The notes indicated that the applicant presented with “pain – chronic & intractable” with back pain over the “past few weeks”. Increasing pain was also noted with a history of a crush injury to the right leg two years previously. Treatment was not recorded other than an entry stating that the applicant was “… sent to TMC…”.
A discharge summary of the Tomaree Community Hospital dated 2 August 2020 noted a presentation with back pain in the sacral are and a history of a work accident years ago injuring the right leg. It was noted that when tired there was increasing pain “both legs and into lower back”. Also noted was “low back pain…long history of same…states endone has worked in past”.
Mr Rees
Mr Rees, exercise physiologist, provided an initial assessment report to the workers compensation insurer dated 14 October 2019 and a progress report to the workers compensation insurer dated 4 February 2020.
In his report dated 14 October 2019, Mr Rees recorded a history of the injury at work in March 2017. He noted the applicant had made some progress with therapies over the previous 2½ years though he reported continuing weakness associated with the right leg and symptoms mostly of fatigue and heaviness. Mr Rees also noted that the applicant reported sporadic pain flares within his lower back and also symptoms in the left leg, both of which the applicant felt may be compensatory to his right leg restrictions.
On physical examination, Mr Rees noted that the applicant described symptoms of fatigue and weakness through his lower thigh and on occasions down to his right foot. Mr Rees noted the applicant displayed normal sensory responses on assessment and reported his leg feeling heavy. He noted the applicant reported an increase in fatigue in respect of his right leg with prolonged tasks or loading. Mr Rees noted that the applicant was able to kneel on a soft surface though he found this tender over the knee. He noted that the applicant was able to squat and lift if required that he did not perform this in repetition. He also noted that the applicant described reduced balance and confidence on uneven surfaces.
Mr Rees noted “Mr Higgins demonstrated notable tension throughout his gluteal, psoas and pelvic structures. These appeared muscular and related to compensatory postures and movement patterns.”
Mr Rees was of the opinion that
“Mr Higgins has persistent right leg issues that are related to deficit within his quadriceps musculature. Whilst he does not present with any neuropathic features of pain, his fatigue response and ongoing weakness would likely point to a deficit. I suspect this may be more localised around his hip girdle or anterior thigh.
…
I do feel there are some benefits that can be obtained by targeting more specific muscle groups around his pelvis as I feel these are responsible for his lower back and pelvic pain. This will become an important management approach for his in the future.”
In his progress report dated 4 February 2020, Mr Rees noted that
“whilst his right leg (thigh) continues to show restrictions in power we have noted that improving corset and pelvic stability have promoted overall progression for Peter. We notes that signs of acute lower back spasm have been eliminated and general mobility associated with his lower back and pelvis improved”.
Mr Rees noted continuing restrictions related to the applicant’s right thigh, occurring mostly with lifting, carrying or crouching and resulting in tremor and fatigue response within the right leg. Mr Rees noted that “lower back symptoms have been reduced as increasing segmental mobility, gluteal and multifidus activation have been targeted”. He also stated that “we have moved away from localised strengthening of the thigh as this was not beneficial to his leg symptoms, however now that corset of pelvic control has been restored we will again explore this as a treatment target”.
Mr Rees also noted that the applicant’s “signs of acute lower back pain have reduced notably, though restrictions related to his right leg remain”.
Mr Rees was of the opinion that
“Peter is understandably apprehensive about pushing himself, and I suspect much of his lower back symptoms have been a reflection of his altered movement behaviours (protective) related to his long standing leg weakness. It is good that he now recognises the approaches that are necessary for this to be managed, as it is likely that the deficit within his right leg will continue to influences poor lower back and pelvis biomechanics.”
Medical investigations and imaging
Ultrasound right thigh dated 7 March 2017 noted a history of a fall four days ago. This was reported by Dr Sabharwal as finding a low-grade strain in the vastus lateralis muscle, “along with posterior sub-epimysial fibres at the region of clinical interest extending over and 8 cm length”. No other significant abnormality was noted.
MRI right thigh was reported by Dr Comin, MRI radiologist, on 30 May 2017. A “traumatic injury right thigh bruising and swelling” was noted. Findings were noted as “indistinct areas of oedema/hyperintensity seen in both the vastus lateralis and vastus intermedius muscle… The latter extends to the periosteal margin… The distribution and morphology is most in keeping with a contusion rather than a muscle tear”.
CT lumbar spine report of Dr Ebrahimi, clinical radiologist, dated 18 October 2019 commented there was segmentation anomaly at the thoracolumbar junction with blocked vertebrae T12 and L1 and evidence of early disc disease at L3/4.
MRI lumbosacral spine report of Dr Afaghi dated 9 November 2019 commented there was vertebral segmentation anomaly with blocked vertebrae and fusion of Tl1 and L1 vertebral bodies with associated kyphosis at the thoracolumbar junction. Also noted was no evidence of nerve root impingement.
Dr Katekar, neurologist, provided an electrophysiology report dated 17 February 2020 in which nerve conduction studies were reported to be within normal limits and needle electromyography (EMG) showed normal innervation. Dr Katekar interpreted these results as no evidence of a neurogenic lesion to account for the right leg symptoms.
Bone scan report of Dr Howarth dated 8 September 2020 noted a history of “low back pain. Previous crush injury to the right thigh.? Right sacroiliac joint pathology.” The report commented that the bone scan demonstrated “increased mechanical stress/strain in the right sacroiliac joint but no evidence of active sacroiliitis… Active facet joint arthropathy is noted on the right at L5/S1…”
Dr Isaacs
Dr Isaacs, orthopaedic surgeon, provided medico-legal reports to the applicant’s solicitors dated 16 July 2020 and 9 November 2022.
In his report dated 16 July 2020, Dr Isaacs took a relevant history of injury to the applicant’s right thigh on 3 March 2017, and subsequent treatment. He noted that the applicant said that following the injury to his right thigh on 3 March 2017 his right thigh pain persisted and whenever he did some heavy lifting he started to limp and the limp got worse. Dr Isaacs recorded that as a result there was alteration in his posture and within three to four months of the original injury the applicant started to develop back pain. Dr Isaacs noted that the applicant’s current complaints were of pain in the right leg, aggravated especially when he has to walk long distances, squatting, kneeling or climbing up and down steps or ladders. Dr Isaacs also recorded that the applicant also had pain in the lower back, aggravated if he stands for long periods or sits for long periods or bends forward frequently.
On examination, Dr Isaacs recorded restricted flexion and extension of the lumbar spine with pain and discomfort as well as tenderness over the left sacroiliac joint. Some muscle spasms were noted in the lumbar spine.
Dr Isaacs also noted movements are both hips and both knees were reasonably good. In relation to the hips, Dr Isaacs noted that the flexor, extensor and abductor groups of muscles on the left side showed grade V power, and, on the right side, all those muscles showed grade IV power. In relation to the knees, Dr Isaacs noted flexor and extensor groups of muscles of the right knee showed grade IV power and the left knee showed normal power.
Dr Isaacs diagnosed weakness, pain and some numbness of the right thigh which did not have a primary neurological basis following direct muscle trauma. He also diagnosed aggravation of lumbosacral spondylosis without sciatic nerve root irritation/sequential injury following altered posture which was brought about by right thigh pathology. Dr Isaacs was of the opinion that the right leg injury was the result of the incident that took place on 3 March 2017 and the applicant’s back injury was a consequential injury due to the altered posture from the weakness and pain in the right leg. He was of the opinion that the applicant’s employment with the respondent is a substantial contributing factor to his injuries.
In relation to permanent impairment, Dr Isaacs assessed impairment due to muscle weakness of the right thigh as follows:
“Right Thigh
According to Table 17-8 (Page 532 of AMA 5) following are the impairment due to muscle weakness.
Muscle Group
Grade
Lower Extremity Imp
Right hip
Flexion
4
5% Lower Extremity
Impairment
Extensors
4
17% Lower Extremity
Impairment
Abduction
4
25% Lower Extremity
Impairment
Total Lower Extremity
Impairment = 47%
Right Knee
12% Lower Extremity
Flexors
4
Impairment
Extensors
4
12% Lower Extremity
Impairment
Total Lower Extremity
Impairment = 24%
When the lower extremity impairment of the right hip (47% lower extremity impairment) and the right knee (24% lower extremity impairment) are combined, according to the Combined Values Chart, this equates to 60% lower extremity impairment.
According to Table 17-3 (Page 527 of AMA Fifth Edition), when the lower extremity impairment for the right lower limb is converted, it is equal to 24% whole person impairment.
Lower Back
According to Table 15.3 (Page 384 of AMA Fifth Edition) since he has asymmetric loss of range of motion and some muscle guarding, he comes under Category II. He incurs an impairment of 5% WPI.
According to Paragraph 4.35, since he has restriction with some household tasks and his extra-curricular activities, I have added 2% to his rating, which equates to 7% Whole Person Impairment.”
In his supplementary report dated 9 November 2022, Dr Isaacs made the following assumptions, as requested by the applicant’s solicitors:
“(a) That Mr Higgins first noticed pain in his lower back and pelvic region as a result of favouring his right leg 3-4 months following the initial injury which occurred on 3 March 2017.
(b) Mr Higgins commenced working in the bottle shop in September 2018. His duties include lifting and carrying cases of alcohol which can weigh between 12-22kgs. This provokes pain in the lower back of the same intensity that he experienced prior to commencing work in the bottle shop.
(c) At the time you examined him, Mr Higgins walked with a limp on prolonged walking due to fatigue and weakness in the leg (though that has improved over time).”
Dr Isaacs was of the opinion that it was more likely than not that the applicant’s altered gait aggravated the pre-existing degenerative disease of the lumbar spine with that aggravation commencing shortly following the accident in March 2017, rendering the degenerative change symptomatic about three to four months after the initial injury. He was of the opinion that the limp that the applicant had due to the severe pain in the right thigh had altered his gait which exerted abnormal stress to the lumbar spine resulting in aggravation of the underlying degeneration and as a result the underlying degeneration became symptomatic.
Dr Isaacs noted that his assessment of permanent impairment as a result of the consequential injury to the lumbar spine was made in the knowledge of the work the applicant did as a shop assistant in the bottle shop. He apportioned 90% of the impairment to the incident of March 2017 and 10% to the work as a shop assistant.
Dr Isaacs was requested to describe the causal connection between the subject injury and the impairments to the right hip and knee. Dr Isaacs stated in response:
“The injury that occurred on 3 March 2017 resulted in the injury to the right thigh. The pain and weakness he had in the right thigh muscles affected the function of the right hip joint and the right knee joint. Therefore, any effect on the function of the right hip and right knee joint is directly related to the injury that occurred in the right thigh as a result of the incident that took place on 3 March 2017.”
Dr Harrington
Dr Harrington, orthopaedic surgeon, provided medico-legal reports to the respondent’s solicitors dated 30 September 2020 and 3 December 2020.
In his report dated 30 September 2020, Dr Harrington noted a relevant history of injury to the right thigh on 3 March 2017. Dr Harrington recorded that the applicant said that he had ongoing pain which hadn’t changed in the last 12 months. He noted that the applicant had pain in the lower thigh area although there was no tenderness to deeper palpation. He noted that the pain was exacerbated by certain activities and there were occasional episodes where the leg gave way, but not too often. Dr Harrington also noted that the applicant had commenced work at a bottle shop and that work could be quite physical, involving unpacking pallets with cartons of beer, wine and spirits and taking customers’ purchases to the car.
On examination, Dr Harrington noted no obvious wasting of the right quadriceps muscles, a full range of movement of the right hip although extremes of movement were associated with shaking or quivering, which was hard to explain on a pathological basis, and a full range of movement of the right knee. He also noted that in respect of the spine, there was a slight loss of lordosis and movements of the back were hesitant and associated with spasm. Dr Harrington noted the range of medical investigations.
Dr Harrington was of the opinion that the applicant sustained a soft tissue injury to his right thigh as a result of the incident at work in March 2017. Dr Harrington diagnosed a contusion of the right thigh. He also noted that the applicant described back pain as a consequence of his leg injury. Dr Harrington was of the opinion that the back pain was more likely related to the underlying changes in the lumbar spine which had become symptomatic. He stated that he had not detected any injury to the right hip or right knee as a result of the accident.
Dr Harrington assessed lumbar spine permanent impairment associated with spasm. He was also of the opinion that given the timeframe of over three years and negative investigations, “ample time has passed for a soft tissue injury of the right thigh to have resolved” and he
did not believe that there was a residual problem or impairment with the right thigh. Dr Harrington was of the opinion that there was 3% whole person impairment causally related to the work injury in respect of the lumbar spine.In respect of the assessment by Dr Isaacs, Dr Harrington commented that muscle weakness of the thigh was not apparent on clinical examination. Dr Harrington was of the view that the only reason Dr Isaacs may have detected muscle weakness would have been voluntary guarding by the applicant at the time of examination. It was the opinion of Dr Isaacs that “serious musculoskeletal pathology has been ruled out by the plethora of investigations.” Dr Harrington noted view of Dr Isaacs that there was a consequential back injury due to altered posture from the weakness and pain in the right leg, however Dr Harrington believed that “the complaint is more likely due to underlying changes in the lumbar spine which have become symptomatic”.
Dr Harrington commented that having regard to all of the investigations to date he was of the view that “serious pathology has been ruled out because a localised cause for his perceived thigh symptoms hasn’t been ascertained”.
In his supplementary report to the respondent’s solicitors dated 3 December 2020, Dr Harrington, in response to a question regarding whether there was a consequential lumbar spine injury, was of the opinion that “his back pain is more related to underlying changes in his lumbar spine which have become symptomatic. I do not believe that there is a consequential injury as a result of the right leg”.
In response to a question as to whether the “lumbar spine injury was sustained or exacerbated in the course of the worker’s subsequent employment as a bottle shop assistant”, Dr Harrington noted that the applicant
“…did not return to work as a builders labourer. He obtained work as a bottle shop assistant at Shoal Bay Country Club. Although his employment is quite physical, any aggravation or exacerbation of the lumbar spine would be due to the underlying changes rather than any work-related injury suffered on 3 March 2017.
The literature depicts an episode of back pain in 2018 whilst working at the bottle shop. He also seems to have suffered an acute episode during/following a session with the exercise physiologist in October 2019.
Most people who suffer acute back pain try to find an associative cause for symptoms however we know Mr Higgins has pre-existing changes in the lower lumbar levels, which I believe could have been perpetuated or aggravated at any time.
I assessed Mr Higgins for the acute injury to his right leg and whilst he may have had a muscle strain of the lumbar spine as he pulled himself up out of the collapsed ceiling to free his leg, any aggravation to his lumbar spine would have been temporary.”
Dr Harrington did not believe that there was an assessable impairment involving the lumbar spine causally related to the injury on 3 March 2017. He stated that this superseded his previous assessment.
Dr Harrington noted that the GP health documents recorded that the applicant “always complained of back pain however the notes seem to reflect more ongoing back pain (rather than thigh pain) following an episode in 2019 where he required investigations and strong pain relief”. Dr Harrington also noted that the applicant was “still complaining of predominant leg pain in March 2019 and was scheduled for exercise physiology several months later” and he “then suffered an episode of back pain on 16 October 2019 after seeing the exercise physiologist”. Dr Harrington was of the view that “this sounds like a general episode of acute back pain which we all get during our lifetime”.
Dr Harrington stated that “if it is deemed that the back pain was somehow related to his employment at the bottle shop (which is not my opinion), the aggravation would still be temporary”.
FINDINGS AND REASONS
Before turning to the parties submissions, I will deal with the medical records and treating reports summarised above.
Three days after the injury of 3 March 2017, the Prince of Wales Hospital recorded on triage right hip and thigh pain and weight bearing with pain, and unable to move the leg and knee. Three weeks after the injury of 3 March 2017, Mr Meoli noted inability to complete a squat, a limp, gait, and heaviness after running or exercises of the right leg.
By May 2017 Dr McDonald noted that the applicant was complaining to Dr McDonald of right leg weakness, and right knee symptoms. Dr McDonald noted decreased quadriceps tone and restrictions of the right knee and right leg on examination.
Mr Royes in February 2018 noted over the previous year rehabilitation was not successful and due to the quadriceps and poor hip control the applicant was prone to patellofemoral pain. Later notes and reports also documented weakness. Although Dr Mitchell noted normal knee and hip findings, this in my view does not outweigh the evidence of weakness of the right leg over a substantial period, with specific references to the right knee in 2017, and to the right hip in 2018, in the context of such restrictions being noted with rehabilitation over a period of about 12 months.
The respondent advanced the criticism that the applicant’s statement was made some 4½ years after the injury, with the absence of contemporaneous records outweighing the applicant’s evidence. I do not accept this submission. In my view the evidence did support the applicant’s evidence, as noted above. Although there was an absence of specific reference to the right hip, there was consistent reference to leg weakness. Further, I approach this aspect of the medical records with caution, as they are treating summaries. Apparent inconsistencies should be approached with caution[1], and they should be considered in the light of the clinicians conducting busy practices, where all matters may not be recorded, particularly where was an undisputed injury to the right thigh[2].
[1] Mason v Demasi [2009] NSWCA 227 at [2].
[2] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
In my view there is sufficient evidence to support the applicant’s statements that his right leg started to feel tender, weak and heavy about three months after the accident. The evidence also indicated symptoms in the applicant’s right knee were noted in 2017, and to the right hip in March 2017 and in 2018 referring back to a history commencing in 2017.
It was submitted by the respondent that a surgery consultation of 13 November 2018 noted that the applicant was coping with his duties in the bottle shop, with evidence that cartons lifted were 16kg, and it should be inferred that the applicant was performing normal lifting practices using his hips and knees, and that there was no indication of any difficulties with the knee and the hip at that time. However, Dr Lanigan in his notes of that consultation stated that the applicant continued to suffer leg pain. In his report to the workers compensation insurer dated 30 January 2019, Dr Lannigan referred to the conference on 13 November 2018 and clarified that he had was not meant to suggest applicant was fit for pre-injury duties as he still had significant limitations and pain related to his injury. I do not accept the respondent’s submissions in this regard.
As for the applicant’s lumbar spine, in my view the clinical notes and reports summarised above support the applicant’s evidence as to altered gait as a result of the injury of 3 March 2017, and subsequent onset of back pain. The first reference to gait was Mr Meoli in his report, referring to a consultation in March 2017 in which gait and a limp were noted. Dr Lannigan, in his consultation notes on 1 August 2018 and 24 August 2018, recorded leg and back pain. Ms Di Carli recorded compensatory left leg and back pain in September 2018. Mr Rees in his 2020 report suspected much of the lower back symptoms had been a reflection of the applicant’s altered movement protective behaviours related to his long standing leg weakness and it was likely that the deficit within his right leg will continue to influence his poor lower back biomechanics In my view this supports the applicant’s evidence that as a result of his right thigh injury he suffered altered gait and as a result lower back pain.
The respondent submitted that there was no dispute that on 3 March 2017 the applicant suffered injury to his right thigh. The respondent submitted that throughout the clinical notes there appeared to be no objective neuropathy in relation to the right thigh. It was submitted that although there were earlier references to back pain, significant back pain did not arise until a significant time after the initial injury, that is significant back pain arose from 18 October 2019. The respondent submitted that in the clinical notes there were no complaints about the right knee or the right hip until early 2019 when there is a reference to both the knees.
The respondent submitted that, in respect of a clinical note of 13 November 2018 by Dr Lannigan noted that the applicant was currently coping with all his duties at the bottle shop, it could be inferred that those duties involve picking up cases of alcohol, and earlier rehabilitation reports indicated he was able to lift 16kg. It was submitted that 18 months after the original injury the applicant was coping with his bottle shop duties and that such duties involved normal lifting practices involving exercising the knees and hips as well as the lower back and there was no indication of any difficulty in relation to the hip or the knee at that time.
The respondent submitted that there was no evidence that there was a frank injury to the right hip and to the right knee. It was submitted that how the weakness in the right thigh affected the function of the right hip and right knee was not made clear at all.
The respondent submitted that, in respect of assessment pursuant to American Medical Association Guides to the Evaluation of Permanent Impairment Fifth Edition (AMA 5), generally where there is flexion, abduction and similar testing in relation to an impairment, normally to the same part of the body that is being tested, for example, issues in the knee arise from an injury to the knee.
The applicant submitted that prior to the injury of 3 March 2017 the applicant had worked for 18 years in the construction industry as a labourer and that prior to 3 March 2017 there was no suggestion of any issues at all with his right thigh, right knee, right hip and with his back until the subject injury.
The applicant submitted that the injury of 3 March 2017 resulted in injury to the right thigh and the pain and weakness that the applicant had in the right thigh muscles affected the function of the right hip and the right knee joint and the pain and weakness that he had in the right thigh muscles affected the function of the right hip and right knee joint. It was submitted that any effect on the right hip and the right knee is directly related to the injury that occurred to the right thigh as a result of the injury on 3 March 2017, that is it was a frank injury. It was submitted that the task for determination by the Commission was whether the limitations that Dr Isaacs has found are the legacy of injury and the assessment is a matter that the legislation delegates to the medical assessor.
In relation to the right hip and right knee, in general terms the dispute between the parties came down to whether there must be evidence of injury to the hip and knee for an assessment of permanent payment to be made in this regard, that is a matter for determination by the Commission, as per the respondent, or whether it is a matter that is appropriate for a Medical Assessor to consider the loss of function of the hip and knee said to directly result from the accepted injury to the right thigh, as per the applicant. By way of example, the applicant submitted that this was not an orthopaedic injury, that is in the sense of an injury to the structure of the knee itself, and the causal element in respect of injury was that there had been a frank injury to the right thigh on 3 March 2017, a matter which was not in dispute, and which directly resulted in the loss of function of the hip and knee, a matter for assessment. The respondent, by way of example, pointed to relevant tables in AMA 5 in which assessments of the knee and hip specifically referred to injury to the knee or hip. The respondent also submitted that there was no explanation about why there was any effect on the function of the right hip and the right knee arising from wasting or atrophy of the right thigh muscle.
I do not accept the respondent’s submission to the effect that an assessment of impairment with respect to the right hip and right thigh cannot be made as there was no injury to the right hip or right thigh. Dr Isaacs in his supplementary report of 9 November 2022 explained that the pain and weakness that the applicant had in his right thigh muscles affected the function of the right hip joint and the right knee joint. The applicant has not claimed for impairment as a result of injury to the right knee or right thigh. He has claimed for impairment, assessed by Dr Isaacs, said to have resulted from injury to the thigh, as submitted by the applicant in the course of submissions. Although the Commission may determine the degree of permanent impairment resulting from an injury, without recourse to an assessment by a Medical Assessor, in my view it is appropriate in this matter for the applicant to be examined and assessed by a Medical Assessor. It is therefore a matter for a Medical Assessor, subject to any appeal rights that may be made to an Appeal Panel, to consider whether loss of function of the right knee and right hip may be assessed as impairment resulting from injury to the right thigh.
It is also a matter for the Medical Assessor as to whether a particular table in AMA 5 (or the NSW workers compensation guidelines for the evaluation of permanent impairment, 4th edition (the Guidelines) issued by the State Insurance Regulatory Authority (SIRA)) is applicable in the assessment of the degree of permanent impairment, subject to any appeal rights.
In his earlier report Dr Isaacs assessed right thigh impairment due to muscle weakness affecting the muscle groups of the right hip and right knee, based upon his examination findings of differences in muscle power of the right hip in respect of the flexor, extensor and abductor groups, and reduction in muscle power of the right knee in respect of the flexor and extensor groups of muscles of the right knee. In my view this is sufficient explanation for the assessment provided by Dr Isaacs. This explanation was also not inconsistent, in my view, with the applicant’s complaints of right leg weakness, particularly on loading or repetitive exercise, as noted below. I do not accept the respondent’s submissions in this regard.
Further, an absence of “objective neuropathy” of the right thigh, may be relevant to consideration of causation in relation to injury and also in relation to one of the matters that a Medical Assessor may consider in assessing whether loss of function of the right knee and right thigh directly results from the injury to the right thigh on 3 March 2017. My view that this a matter for assessment by a Medical Assessor is in my opinion not inconsistent with the differing reasoning in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[3] (Bindah), including that of Emmett JA that there is no bright line delineating causation from medical evidence where issues of causation may involve disputes between medical experts that may be resolved by a Medical Assessor, and “it is desirable to avoid a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues”[4], notwithstanding that since 2019 the Commission may determine where appropriate permanent impairment without referral to a Medical Assessor.
[3] [2014] NSWCA 264.
[4] Bindah at [110].
I do not accept the opinion of Dr Harrington in relation to the applicant’s right knee and right hip. First, his reasoning was based upon his view that there was no injury to the right knee or right hip as a result of the accident. As noted above, this was not the case put by the applicant. Second, he noted Dr Isaacs assessed for muscle weakness, but this was not apparent on examination by Dr Harrington. This was a difference on examination findings, which may ultimately be resolved by a Medical Assessor. However, Dr Harrington asserted that the only reason Dr Issacs may have found muscle weakness was voluntary guarding by the applicant. In my view this was conjecture without evidence, other than the usual reporting of the summary of such findings, as to the manner and conduct of examination by Dr Isaacs. There may be other reasons for the discrepancy. This reasoning assumes that an absence of a finding of weakness by Dr Harrington on the day of examination, excludes a finding of weakness by Dr Isaacs on the day of his examination. Further, the view of Dr Harrington that “serious musculoskeletal pathology has been ruled out” by the investigations, addresses injury, and not the claim made by the applicant for permanent impairment resulting from loss of function. Moreover, he was of the view that there had been ample time for soft tissue injuries to have resolved, and he referenced negative investigations and the timeframe of over three years, but a consideration of the applicant’s complaints of continuing weakness was not given.
In respect of the assessment by Dr Isaacs relating to loss of function of the right hip and right knee, as noted above, in my view he has provided sufficient explanation and findings for his opinion. The difference between his finding and opinion, and those of Dr Harrington, are a matter for consideration by a Medical Assessor, having regard to that assessor’s own examination, findings and opinion.
In respect of the applicant’s lumbar spine condition, in my view the medical records and reports summarised above support the applicant’s evidence that from about three or four months after the injury of 3 March 2017 he suffered back pain as a result of his altered gait as he was unable to take the weight on his right leg. Gait and limp were noted by Mr Meoli in March 2017, back pain by Dr Lannigan in August 2019, and compensatory left leg and lower back pain by Ms Di Carli in September 2019. There were subsequent periods of worsening and then improvement back pain in 2019. The same caution as to approach regarding absence of reference to the back until 2018, as noted above applies. I accept the applicant’s evidence in relation to his lower back.
There was no medical evidence contrary to the applicant’s evidence, and the opinion of Dr Isaacs, that he sustained altered gait as a result of the injury of 3 March 2017. Dr Harrington restricted his comment to gait to a statement that “he does not walk with a limp”. This was a statement as to his observation on the day of examination, it was not a challenge as to whether there had been altered gait or whether such gait rendered the applicant’s lumbar spine condition symptomatic. Dr Harrington was also of the view that the consequential back injury was more likely have been due to underlying degenerative lumbar spine changes becoming symptomatic. This did not say that altered gait was not a possibility in rendering the degenerative changes symptomatic. He thought the applicant had injured his lumbar spine in the incident of 3 March 2017, and seemed to asses some permanent impairment as a result of the subject injury.
There was no medical opinion that the work at the bottle shop broke the causal chain. Dr Harrington specifically discounted that work.
Dr Harrington was of the opinion in his supplementary report that any aggravation of the lumbar spine would have been temporary. He pointed to the GP notes indicating complaints of back pain increasing in 2019, and then again in October 2019, following consultation with an exercise physiologist, which was an episode of back pain. I do not accept the opinion of Dr Harrington in this regard. It seems to me that the was consistent complaint of back pain from 2018. Additionally, it was not explained how the effects of injury on 2 March 2017 had ceased when it was the applicant’s evidence, which I accept, that the lumbar spine symptoms and restrictions had continued. The argument put by Dr Harrington that there were always complaints of low back pain, but there was a significant change in 2019, does not in my view point to a break in the chain of causation, nor to a cessation of the effects of any aggravation, as he had posited. The evidence on the whole in my view is to the contrary.
I prefer the opinion of Dr Isaacs. The matters he assumed in his report of 9 November 2022, in relation to onset of lower back pain as a result of favouring the right leg after the subject injury, are in my view established on the evidence. I accept his explanation as to how the limp and altered gait had rendered the degenerative change symptomatic after the injury.
The applicant submitted that, applying the reasoning of Murphy v Allity Management Services Pty Ltd[5], the issue to be decided was whether the injury to the right thigh on 3 March 2017 has made a material contribution to the lumbar spine condition. That is, applying the commonsense test of causation[6] that the lumbar spine condition resulted from the injury to the right thigh on 3 March 2017, that is the injury of 3 March 2017 materially contributed to the lumbar spine condition. In my view, based upon my acceptance of the applicant’s evidence and the opinion of Dr Isaacs, the injury to the right thigh on 3 March 2017 resulted in the applicant walking with a limp and favouring his injured right leg, and so walking with an altered gait, and as a result aggravating the underlying degeneration, rendering it symptomatic.
[5] [2015] NSWWCCPD 49.
[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
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