Jackson v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jackson v Secretary, Department of Education [2023] NSWPIC 1
APPLICANT:	Kate Jackson
RESPONDENT:	Secretary, Department of Education
Member:	Rachel Homan
DATE OF DECISION:	9 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted injury to left ankle; whether consequential lumbar spine condition; absence of radiological investigation and support for causal relationship in treating medical evidence; regular complaints of lumbar symptoms and altered gait in records of allied health professionals; contribution of subsequent non work-related events; Held – applicant sustained a consequential lumbar spine condition as a result of the accepted left ankle injury; matter remitted for referral to a Medical Assessor.
determinations made:	The Commission determines: 1. The applicant sustained a consequential lumbar spine condition as a result of the injury to her left ankle on 9 September 2015. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 9 September 2015 Body parts: left lower extremity (ankle) lumbar spine (consequential) skin (scarring) (consequential) Method: whole person impairment 3. The materials to be referred to the Medical Assessor are to include all documents admitted in the proceedings as described in the attached statement of reasons.

STATEMENT OF REASONS

BACKGROUND

Ms Kate Jackson (the applicant) was employed as a primary school teacher by the Secretary, Department of Education (the respondent).
On 9 September 2015, the applicant was working in a classroom with a special needs student. The student was agitated and attempted to leave the premises and run onto the road. In the process of restraining the student, the applicant injured her left ankle. Liability for the ankle injury was accepted by the respondent’s insurer.
On 20 December 2019, the applicant’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied on an assessment of 15% whole person impairment (WPI) of the left lower extremity (ankle), lumbar spine and skin (scarring) made by Dr James Bodel on 18 August 2019. Dr Bodel formed the view that the applicant had developed a consequential condition at the lumbar spine due to an abnormal gait pattern resulting from the ankle injury.
Liability for the consequential lumbar spine condition was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 November 2020.
The claim for lump sum compensation was amended on 23 June 2022 based on a further assessment by Dr James Bodel, on 28 March 2022, of 16% WPI.
In a further s 78 notice issued on 3 August 2022, the decision to dispute liability for a consequential lumbar spine condition was maintained. It was also disputed that the degree of permanent impairment at the applicant’s left ankle exceeded the 10% threshold for the purposes of s 66(1) of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 3 October 2022. The applicant seeks lump sum compensation in accordance with Dr Bodel’s more recent assessment.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 12 December 2022. The applicant was represented by Mr Bill Carney of counsel, instructed by Mr James Counter. The respondent was represented by Mr Ross Hanrahan of counsel, instructed by Mr Danny Khoshaba and Ms Kerry Byrnes.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential lumbar spine condition as a result of the injury to her left ankle on 9 September 2015, and
(b) the degree of permanent impairment resulting from the injury on
9 September 2015.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 5 December 2022, and
(d)    documents lodged by the applicant on 12 December 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on
23 September 2022.
The applicant disclosed a previous sprain injury to her left ankle in 2013 but said she had suffered no other relevant injuries or conditions.
The applicant described the event on 9 September 2015 and the disabilities that had resulted from it.
The applicant said she was treated initially by Sports and Spinal Physiotherapy on the afternoon of the incident. The applicant was referred for an X-ray, which did not reveal any specific injury to the ankle.
On 11 September 2015, the applicant consulted her general practitioner, Dr Ahmed at Your Family Medical Practice. The applicant was referred for further physiotherapy but when her ankle condition did not improve was sent for an MRI scan. With conservative treatment the applicant was able to return to work on restricted duties in December 2015. The applicant continued to experience pain in the left ankle.
The applicant underwent a second MRI scan on 22 February 2017 and was referred to Associate Professor Dean Pepper. A/Prof Pepper recommended a cortisone injection, which was performed on 28 March 2017.
On 10 April 2017, the applicant consulted with Dr Tim Musgrove who referred the applicant for a weight-bearing X-ray of the left ankle. Dr Musgrove did not consider the applicant would benefit from surgery.
The applicant returned to see A/Prof Pepper who recommended a second cortisone injection, which was performed on 13 June 2017. On 5 July 2017, A/Prof Pepper recommended the applicant undergo an arthroscopy. Surgery was performed on
1 August 2017.
Following the surgery, the applicant began to develop symptoms of chronic pain in the left ankle. The applicant was in a moon boot for a period of 14 days initially. On review,
A/Prof Pepper recommended that the applicant wear the moon boot for another four weeks.
In October 2017, the applicant continued to consult with her physiotherapist and reported pain in her lumbar spine as a result of altered gait. The applicant complained about pain in her lumbar spine during a vocational assessment with Rehab Management in March 2018. Complaints were also made to Dr Ahmed in September 2018 although it appeared he recorded the complaint as involving the right hip.
The applicant was referred for treatment of her neuropathic pain to another physiotherapist and a pain management specialist, Dr Marc Russo. Dr Russo recommended plasma injections and a left S1 dorsal root ganglia radiofrequency neurotomy. The applicant also underwent an intensive pain program.
In June 2019, the applicant commenced work as a disability employment consultant. In March 2020, the applicant’s back pain increased due to sitting down to work whilst elevating her leg. The applicant was restricted to desk work by the COVID-19 lockdown. The applicant made complaints to an ergonomic assessor appointed by the insurer and complaints in relation to the lumbar spine were added to the applicant’s certificates of capacity by
Dr Ahmed.
In January 2021, the applicant reinjured her ankle when jumping over a small wave at the beach and landing awkwardly. The applicant was put back in a moon boot for a period of nine months prior to a second surgery performed by A/Prof Pepper on 5 October 2021. After the second surgery, the applicant’s leg remained in a cast for a period of about six weeks. The applicant was unable to weight bear for a period of eight weeks and required the use of crutches and a knee scooter to mobilise. The applicant experienced a resurgence of her regional pain syndrome symptoms.
The applicant said she mostly discussed her back pain with her physiotherapist, at the suggestion of Dr Ahmed.

Treating evidence

A clinical note prepared by Ms Emily Curtis, a remedial massage therapist at Mid-North Coast Allied Health, on 19 September 2015 recorded:
“rolled R ankle last week has been limping - tension and pain through R hip and lumbar
neck and shoulders still tight but wants massage to focus on lumbar and legs”
On 21 January 2016, Ms Curtis noted lumbar pain brought on by long periods of sitting, for example, driving to and from Kempsey. The applicant was treated with massage and advised to apply heat packs.
The applicant’s lumbar symptoms were reported to be better on 13 February 2016.
On 8 July 2016 Ms Curtis noted the applicant was very tight and tender through her lumbar spine.
On 8 July 2016, another therapist, Ms Kelsey Ferguson, noted:
“Lots of issues with (L) leg lately and because of the way she's been walking it's starting to affect her back. Pain is more right sided and aches a lot.”
In a report dated 10 April 2017, orthopaedic surgeon, Dr Tim Musgrove referred to radiological investigations of the applicant’s left ankle and noted the presence of a widespread symptom complex, including some neural symptoms described as pins and needles. Dr Musgrove noted that the applicant was reluctant to weight bear on the left ankle.
Physiotherapist, Mr Kyle Connolly, prepared a report for the insurer on 13 October 2017 in which it was noted,
“l have been seeing Kate Jackson for treatment to her left ankle after post operative syndesmosis fixation over the past 3-4 weeks. During Kate's post operative rehabilitation she has sustained a lower back Injury thought to be contributed to by Kate’s antalgic gait that she has adopted post operative secondary to the limitation in her ankle mobility and pain levels when mobilising. Kate’s rehabilitation process will be quickened if she was to receive treatment for her lower back injury as this would allow her to improve her gait and concentrate on her ankle rehabilitation. I would anticipate that it would take approximately 3 to 4 sessions to improve Kate’s lower back pain but would be able to give a more accurate time frame after completing an assessment.”
An Allied Health Recovery Request, dated 23 October 2017, prepared by Mr Connolly diagnosed the applicant’s condition as post operative syndesmosis repair and secondary L4/5 facet joint dysfunction. The applicant was noted to have reduced ankle range of motion reduced balance and proprioception, poor mobility, reduced lower limb strength and reduced lumbar range of motion.
In a vocational assessment report prepared by Rehab Management, dated 8 March 2018, a history of the applicant’s ankle injury was recorded. It was noted that the applicant was initially treated with physiotherapy, a TENS machine and wore a moon boot. From June to December 2016, the applicant noticed a flare in her ankle symptoms and returned to her physiotherapist. The applicant had undergone cortisone injections at the direction of
A/Prof Pepper. An arthroscopic surgery was performed on 1 August 2017. The author noted:
“At time of the assessment. Ms Jackson reported that she is managing the day to day but does have chronic pain syndrome in her lower back. Ms Jackson reports that this is secondary to her ankle injury. Ms Jackson reported that she is currently waiting on approval for a further four (4) sessions of physiotherapy. She advised she is still doing casual teaching and can teach as long as she is not having to walk significant distances or stand for prolonged periods in the playground.”
The applicant described her lower back pain as 6/10 and aggravated by prolonged periods of activity.
A “final physiotherapy report” was prepared by Workplace Physiotherapy on 27 August 2018. The report noted that the applicant had attended for pain management consultations to assist in managing complex regional pain syndrome (CRPS) of the left ankle. The report noted:
“She has been encouraged to commence an equal weight bearing program in sitting, standing and walking to reduce spreading of pain in other areas related to protective positioning.
…
The Innervate Intensive Pain Program is to commence next week and ongoing attention, physically, needs to be on increasing confidence to weight bear normally through the left foot, upgrading of tolerances using pacing strategies, flare management strategies more consistently and reduce reliance on rest.
Ongoing maintenance of neutral postural alignment in sitting, sit to stand, squat, lifting and carrying should result in reduced pain in the hip and back as well as upgrading of general tolerances.”
At a consultation with the applicant’s general practitioner, Dr Murtaza Ahmed on
4 September 2018, it was noted that the applicant was still having issues with her work injury and “now right hip”.
A musculoskeletal assessment summary prepared by Ms Karlene Russell of Workplace Physiotherapy, dated 8 October 2018, described symptoms in the applicant’s left leg and foot, “restricted ability to weight bear through left leg” and pain in the posterior pelvis/hips related to protective positioning.
Under the heading, “Impairment of Movement”, it was noted that gait was on a narrow base of support, resulting in increased lateral movement at the hips and posterior pelvis. The applicant had poor single leg alignment control related to poor gait pattern. In the summary of findings, it was noted,
“She notes that her activity levels are restricted due to high levels of pain, particularly in standing, walking, squatting, and lifting. In addition, she demonstrates pain base protective behaviours – wide base of support in standing with increased load on the right lower limb to reduce left foot pain. Narrow walking base, resulting in increased load further along the chain at the hip/posterior pelvis.”
An ergonomic workstation assessment report was prepared by IPAR on 14 June 2019. According to the report, the applicant reported muscular soreness in her neck, shoulders and lower back, onset within a couple of months after sustaining her initial injury.
On 27 April 2020, general practitioner, Dr Mark Loman recorded a consultation as follows:
“Vacuuming yesterday
-low back pain (acute on chronic)
-radiating to buttock LEFT (last night 5-10 min)
…
-Saw Paul Seward at Hastings Physio – has a Velcro lumbar brace at present. Suggested Voltaren OTC / ICE”
On 28 April 2020, Dr Ahmed recorded a consultation in which the applicant reported lower back pain for two days put out at home.
In a further workstation ergonomic assessment report by IPAR dated 28 June 2020, it was noted that the applicant reported experiencing lower back pain shortly after sustaining the injury for which she had obtained remedial massage, utilised heat packs, a back brace and pain medication. The applicant reported receiving physiotherapy following a worsening of her ankle and lower back symptoms. The applicant had been experiencing constant lower back pain with the severity of 6 to 7/10, aggravated by sustained sitting and sustained mobility.
On 17 August 2020, Dr Ahmed noted the applicant had “back pain still”.
Dr Ahmed prepared a report for the insurer on 14 September 2020 in which he stated,
“1) I am unable to say for sure if the lower back pain is related. Kate reports that she feels the back pain started after her ankle injury went untreated but it is not possible for me to say if this was the cause as it was some time ago. She does say the physio thinks this was the case however but I do not have this in writing.
2) Kate reports that the back pain resulted from an untreated syndesmosis injury - meaning that due to altered mechanics there was increased load on the lower back. Again I am not speicalised in the area to determine if this is likely to have been the case.
3) No imaging has been done. Kate reports she is undertaking private physiotherapy for her back pain. I have no reports.
4) Scoliosis has not been mentioned in the past in her medical history and I have no spinal imaging.”
On 15 September 2020, Dr Ahmed noted:
“issues with back
needs to sit/stand alternate every 30-45 mins
says not able to lift 10kg » hurts - needs EP review
Moving office - needs new OT review”

Dr Bodel

The applicant relies on medicolegal reports prepared by Dr James Bodel on 18 August 2019, 5 January 2021 and 6 April 2022.
In his first report, Dr Bodel took a history of an injury to the applicant’s left ankle in 2013 and the further injury on 9 September 2015. It was noted that the ankle was treated with physiotherapy, strapping and a moon boot. The applicant was given injections of cortisone and proceeded to ankle arthroscopy on 1 August 2017. The surgery was complicated by diagnosis of CRPS, pins and needles of the dorsum and lateral aspect of the foot with some numbness and severe pain. The applicant had radio frequency neurotomies done in the lower part of her back and PRP injections.
The applicant’s current complaints included:
“lower back pain, shoulder and neck pain and this came on gradually over a period of time without specific accident or injury.”
In making an assessment of the degree of permanent impairment resulting from the injury on 9 September 2015, Dr Bodel commented,
“This lady has developed a consequential condition in the lower part of the back with asymmetry of back movement there as a consequence of her ongoing abnormal gait pattern. The clinical condition has stabilised for the assessment of these injuries.”
Dr Bodel made an assessment of 7% WPI of the lumbar spine and 7% impairment of the left lower extremity (ankle). In addition, 1% WPI was given under the TEMSKI scale for scarring from the ankle arthroscopy.
In his supplementary report, dated 5 January 2021, Dr Bodel was asked to consider further material including a report from the respondent’s medicolegal expert, A/Prof Leon Kleinman. That report dealt predominantly with the question of whether there were sufficient signs and symptoms to make an assessment for CRPS.
In his final report, dated 6 April 2022, Dr Bodel took an updated history including the effects of a new injury on 7 January 2021, when the applicant jumped over a small wave whilst walking on beach. It was noted that the applicant had undergone further physiotherapy and further periods wearing a moon boot. During this process, the applicant’s CRPS got worse and she developed back pain due to continuing abnormal gait pattern. On 5 October 2021, the applicant had undergone further surgery.
Dr Bodel revised his assessment of the degree of permanent impairment to 16% WPI, adding 1% WPI for sensory loss.

A/Prof Kleinman

The respondent relies on medicolegal reports prepared by A/Prof Leon Kleinman, dated
19 March 2020, 23 July 2020 and 14 April 2022.
In his first report, A/Prof Kleinman, took a past medical history that included mild scoliosis and intermittent pain in the applicant’s back, treated by physiotherapy.
A/Prof Kleinman took a history of the injury on 9 September 2015 and the subsequent treatment of the applicant’s left ankle, including the diagnosis of CRPS.
A/Prof Kleinman recorded a number of symptoms at the left ankle and foot and recorded an examination of the left lower extremity. An assessment of permanent impairment of the left lower extremity and scarring of 14% WPI was made.
In his second report, A/Prof Kleinman was asked whether the applicant had mentioned having pain in her lower back as a consequence of her left ankle injury. A/Prof Kleinman responded:
“Ms Jackson did not mention having pain in her lower back as a consequent of her left ankle injury. She did tell me that she has mild scoliosis and as a result she intermittently gets pain in her back which is treated with physiotherapy.”

Asked to provide an opinion as to whether there was any relationship between the applicant’s lower back pain and her workplace injury on 9 September 2015, A/Prof Kleinman responded:
“In my opinion there is no relationship between Ms Jackson’s lower back pain and her workplace injury on 09/09/2015. She gave no history of an acute injury to her lower back at the time of injuring her left ankle at work nor did she mention that she had any pain in her back as a result of her left ankle condition.”
In his final report, A/Prof Kleinman took a history of the further injury in January 2021 at the beach and the further treatment of the left ankle including the second surgery.
A/Prof Kleinman performed an examination of the applicant’s back, although noted that the applicant was limited in forward flexion due to pregnancy.
A/Prof Kleinman revised his assessment of permanent impairment, finding 9% WPI for the left lower extremity and scarring.

Submissions

The Commission has been assisted by the oral submissions of Mr Carney and Mr Hanrahan. Those submissions were recorded and I do not propose to recite them here. They are, however, addressed in the findings and reasons below.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is accepted that the applicant sustained an injury for the purposes of s 4 of the 1987 Act to her left ankle on 9 September 2015. What is in dispute in these proceedings is whether the applicant has sustained a consequential condition at her lumbar spine resulting from the injury to her left ankle.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[1] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[2], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[3] Snell DP referred to the decisions in Moon v Conmah[4] and Kumar v Royal Comfort Bedding[5] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[3] [2016] NSWWCCPD 23.
[4] [2009] NSWWCCPD 134.
[5] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[6], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[6] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she sustained an injury to her cervical spine and a consequential condition affecting her right shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[7] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[7] [2008] NSWCA 246.
The injury to the applicant’s left ankle is well described in the medical evidence before the Commission.
It is apparent from that evidence that the injury was initially treated conservatively after investigations through X-ray and MRI. Although the applicant returned to work on restricted duties, she claims that she continued to experience pain. There is periodic reference to ankle pain in the clinical records of the applicant’s general practitioner thereafter.
In February 2017, a clinical record indicated that the ankle had never quite healed and the applicant had organised a further MRI herself in conjunction with her physiotherapist. This led to referrals to specialists, A/Prof Pepper and Dr Musgrove.
Eventually, the applicant proceeded to arthroscopic surgery performed by A/Prof Pepper on 1 August 2017, following which, she appears to have developed a chronic pain syndrome diagnosed by several of her treating practitioners as CRPS. Around the same time, the applicant was wearing a moon boot for a considerable period and eventually referred to a pain management specialist, Dr Russo.
In contrast to the evidence relating to the applicant’s left ankle injury, the treating medical evidence before the Commission is considerably less clear in establishing a consequential back condition.
The first reference to lumbar symptoms in the records of the applicant’s general practitioner following the injury appears on 27 April 2020 and describes low back pain (acute on chronic) after vacuuming at home. Back pain was noted again by Dr Ahmed in August 2020, although no record was made of the source or cause of such symptoms.

Consistently with these clinical records, when asked by the insurer whether the applicant had sustained a consequential lower back condition, Dr Ahmed was unable to say whether the applicant’s lower back pain was related to the injury. Dr Ahmed did note that the applicant’s own report was that the back pain started after the ankle injury due to altered mechanics and an increased load on the lower back. The applicant suggested that this was also the opinion of her physiotherapist. Dr Ahmed declined, however, to endorse this opinion on the causal relationship between the injury and the applicant’s lower back symptoms, indicating that he lacked specialist expertise in the area.
Dr Ahmed noted that no radiological imaging had been done of the applicant’s lumbar spine. There is also no indication in any of the material before the Commission that the applicant has at any time been referred for specialist review of her lumbar symptoms.
The respondent submitted, and I accept, that the opinion provided by its medicolegal expert, A/Prof Kleinman, was generally consistent with the treating medical evidence.
In his first report, A/Prof Kleinman made no examination or the assessment of the applicant’s lumbar spine. Intermittent back symptoms associated with a history of mild scoliosis were noted but do not appear to have been related to the ankle injury.
The opinion given in A/Prof Kleinman’s second report, that there was no relationship between the applicant’s lower back pain and her workplace injury, was based almost entirely on the applicant’s failure to report an acute injury to the lower back or report pain in her back resulting from the left ankle condition.
The respondent has submitted that the treating medical evidence was insufficient to support a conclusion that the applicant had an altered gait, let alone lumbar symptoms resulting from an altered gait.
Symptoms in the applicant’s lumbar spine were, however, reported to the applicant’s allied health practitioners relatively soon after the injury on 9 September 2015.
A record prepared by a remedial massage therapist, Ms Curtis, 10 days after the injury referred to the applicant limping since rolling her ankle and experiencing tension and pain through her right hip and lumbar spine. The applicant requested massage to the lumbar spine and legs.
There were also reports of lumbar symptoms, not directly attributed to the applicant’s left ankle injury but brought on by long periods of sitting in early 2016.
In July 2016, there was a clear reference in the therapist’s notes to issues with the applicant’s left leg affecting her back due to the way she had been walking.
Around three months after the surgery performed by A/Prof Pepper, the applicant’s physiotherapist, Mr Connolly, prepared a report for the insurer in which he clearly described a lower back condition contributed to by the applicant’s antalgic gait adopted following the surgery to her left ankle. Mr Connolly recommended treatment to the lower back to allow the applicant to improve her gait and improve her lower back pain.
Consistently with this report, an Allied Health Recovery Request was prepared by
Mr Connolly on 23 October 2017, in which he described L4/5 facet joint dysfunction “secondary” to the surgery to the applicant’s left ankle.
Similar symptoms were reported by the applicant to a rehabilitation management specialist in March 2018. The applicant reported chronic pain in her lower back secondary to her ankle injury and difficulties walking and standing for prolonged periods.
Difficulties in weight-bearing and protective positioning were described in reports prepared by Workplace Physiotherapy on 27 August 2018 and 8 October 2018. In the latter report, clear issues with gait, including a narrow base of support resulting in lateral movement of the hips and posterior pelvis and poor single leg alignment control were described.
This analysis of the contemporaneous records of the applicant’s allied health practitioners provides clear support for the expert opinion expressed by Dr Bodel in his first report on
18 August 2019, notwithstanding the lack of support in the evidence from the applicant’s general practitioner and treating medical specialists. Dr Bodel found that the applicant had developed a consequential condition in the lower part of her back with asymmetry of back movement as a consequence of an ongoing abnormal gait pattern.
The treating evidence from the applicant’s allied health practitioners describing lumbar symptoms associated with altered gait has not been addressed in the expert reports prepared by A/Prof Kleinman at all. This omission is significant given A/Prof Kleinman’s reliance on an absence of reports of lumbar symptoms.
The respondent submitted that the evidence suggested a separate injury to the lumbar spine due to poor ergonomics and prolonged sitting whilst in the course of employment with a subsequent employer during the COVID 19 lockdown in 2020.
The respondent also submitted that the increase in symptoms following the further injury to the applicant’s ankle after jumping over a wave at the beach in January 2021 was unrelated to the workplace injury which is the subject of these proceedings.
The respondent has further submitted that the medical evidence did not describe sufficient alteration of gait to bring about pathology in the lumbar spine and, in the absence of radiological investigation of the lumbar spine, it was not possible to identify any pathology.
Whilst those submissions have some force, they do not provide a complete response to the applicant’s claim that she experienced lumbar symptoms and restrictions due to altered gait caused by her left ankle injury on 9 September 2015.
As noted by the authorities above, the test for establishing a consequential condition differs from that required to establish an injury for the purposes of s 4 of the 1987 Act. It is not necessary for the applicant to identify any change in pathology. It is sufficient that symptoms and restrictions have resulted from the accepted work injury.
Whilst subsequent events, or matters unrelated to the workplace injury on 9 September 2015, may also have contributed to the applicant’s lumbar condition, it is well established that a condition can have multiple causes. In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:
“That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[8] [2015] NSWWCCPD 49.
After carefully considering the evidence before the Commission as a whole, I feel a sense of actual persuasion that the left ankle injury on 9 September 2015 has materially contributed to symptoms of restriction and pain in the applicant’s lumbar spine.
In particular, I accept the opinion of Dr Bodel and find it to be more consistent with the overall body of evidence before me than the opinions of A/Prof Kleinman.
I find that the applicant has sustained a consequential condition affecting her lumbar spine as a result of the injury on 9 September 2015.
Having made this finding, it is appropriate that the matter be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment at the applicant’s left ankle and lumbar spine resulting from the injury on that date.
As Dr Bodel has also made an assessment of WPI for scarring, and there is no dispute that scarring has resulted from surgery to the left ankle due to the work injury, it is appropriate that the Medical Assessor also be asked to assess the degree of permanent impairment of the applicant’s skin on the TEMSKI scale.

[2023] NSWPIC 1

9 January 2023