Jewaid v Superior Structures NSW Pty Ltd
[2024] NSWPIC 381
•17 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jewaid v Superior Structures NSW Pty Ltd [2024] NSWPIC 381 |
| APPLICANT: | Rami Jewaid |
| RESPONDENT: | Superior Structures NSW Pty Ltd |
| MEMBER: | Fiona Seaton |
| DATE OF DECISION: | 17 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 66 claim for permanent impairment of accepted lumbar spine injury and consequential left hip condition; left hip condition disputed; Held – the applicant has not sustained a consequential left hip condition as a result of the accepted lumbar spine injury; award for the respondent for the claim made for a consequential left hip condition; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment of the lumbar spine. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is an award for the respondent for the claim made by the applicant that he has suffered a consequential left hip condition. The Commission orders: 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 Act 1998 for assessment as follows; (a) date of injury: 20 March 2017; (b) body systems/parts: lumbar spine, and (c) method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; and (b) the respondent’s Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Rami Jewaid, was employed as a part time labourer by the respondent Superior Structures NSW Pty Ltd. The applicant injured his lumbar spine on 20 March 2017 while bending over to tighten Z-bars around columns with a T hammer. The respondent has accepted liability for this injury.
The applicant claims lump sum compensation for 16% whole person impairment for his lumbar spine injury and for a consequential left hip condition.
The respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 17 October 2023 disputing liability for the consequential left hip injury on the basis that it did not result from the accepted lumbar spine injury sustained on 20 March 2017.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (the Commission) on 3 May 2024 claiming lump sum compensation for permanent impairment of the lumbar spine and left hip injuries.
The dispute was listed for conciliation/arbitration for determination of whether the applicant sustained a consequential left hip injury resulting from his accepted lumbar spine injury.
ISSUES FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether the applicant sustained a left hip injury consequential to the accepted lumbar spine injury of 20 March 2017 in the course of his employment with the respondent.
Both parties agreed that should the applicant’s claim for a consequential left hip condition be successful the claim should be remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment of the lumbar spine and left hip.
In the event the applicant’s claim for a consequential left hip condition is unsuccessful the parties are to have liberty to apply if the claim for permanent impairment of the lumbar spine in unable to be resolved by way of agreement.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing before the Commission on 27 June 2024. Mr Paul Stockley appeared for the applicant instructed by Mr Elhaje. Mr Fraser Doak appeared for the respondent instructed by Ms Costello. Ms Jouni, an Arabic interpreter was present. Ms Matea and Ms Alansari were present for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) respondent’s Reply and attached documents.
Oral evidence
No application was made to call oral evidence.
Applicant’s evidence
The applicant’s evidence is contained in his statement of 12 April 2024.
He commenced working as a part time labourer for the respondent in about October 2015, usually working 23 to 25 hours per week. He experienced a sudden sharp pain in his lower back which radiated down his left leg in the course of his employment at a work site in Parramatta on 20 March 2017.
After discharge from hospital the applicant was treated initially by Dr Abdullah and then by Dr Khan, general practitioners. A CT scan and MRI confirmed an L5/S1 discal injury with radiculopathy and disc prolapses at L3/4 and L4/5 levels. The applicant was treated with physiotherapy and a steroid inject to the L5/S1 level. Dr Donnellan, neurosurgeon, arranged for a bone scan to be carried out and an MRI of the lumbosacral plexus and buttocks.
He continued to experience lower back and left leg symptoms. Dr Nair, orthopaedic surgeon, confirmed the back injury in April 2019 and told the applicant he also thought the left hip and sacroiliac joint were causing him pain.
The applicant continued to receive treatment including branch blocks and radiofrequency ablation. By 2021 he complained of headaches, shoulder symptoms, neck pain associated with paraesthesia in both arms, and lower back pain associated with paraesthesia in both legs.
The paraesthesia is more pronounced in the left lower limb including the left foot, heel and toes. His lower back pain radiates to the left hip, down the back of the left thigh and the front of the left knee and shin. He experiences pain and discomfort in the left trochanteric area of his left hip with restriction of movement.
Dr Medhat Guirgis, orthopaedic surgeon, provides a report to the applicant’s solicitor dated 9 May 2023. The applicant’s history includes lower back pain and burning paraesthesia and persistent pain in the trochanteric area of his left hip triggered and aggravated by moving his hip in certain directions.
On examination Dr Guirgis found tenderness over the trochanteric area of the hip laterally and posteriorly with pain on external rotation and abduction and by resisted abduction.
Dr Guirgis describes restriction of movement in the left hip and diagnoses consequential symptoms in the left hip consistent with spine-hip syndrome including the symptoms and signs of Greater Trochanteric Pain Syndrome caused by hip abductor weakness secondary to the left L5 radiculopathy.
The doctor notes that the altered biomechanics of the relatively immobile axial skeleton, the hypermobile left lower limb at the hip joint as a result of the disc derangements, the left L5 radiculopathy, and the hip abductor weakness would play a significant role in the described syndrome.
Dr Guirgis assesses 4% whole person impairment of the left lower extremity and 12% whole person impairment of the lumbar spine to total 16% whole person impairment.
The records of Westmead Hospital refer to treatment of the applicant’s back injury on 20 March 2017. The records include that he has difficulty straightening his left leg, and he has tenderness posteriorly to his entire left lower limb with active movement restricted on the left lower limb by pain.
Dr Nair, treating spine surgeon, records his treatment of the lumbar spine condition in his reports to Dr Khan. In January 2019 he describes internal rotation of the left hip provoking pain. In 2020 he refers to the applicant being troubled by lumbosacral pain with radiation in an L5 dermatomal pattern, more so in the left lower extremity.
The MRI lumbar spine of 28 April 2021 includes a finding of mild left sided foraminal stenosis.
Dr Donnellan on 30 May 2018 refers to low back pain and left sided sciatica after the work injury. He describes the applicant’s pain as radiating from the lower back into his left buttock, anterior thigh and lateral leg into the sole of his left foot.
Mr Nasso, exercise physiologist, records a reduction in both hip internal and external rotation on 10 July 2019. There are consistent complaints of left leg pain and numbness.
The clinical records of Dr Khan, general practitioner, provide a history of treatment for the applicant’s back pain and complaints of pain radiating to the left leg.
Mr Jason Diep, physiotherapist, found on 24 July 2018 moderate tightness around lumbar spine and lower limb musculature including hip extensors, hip flexors, hamstrings, quadriceps, piriformis and gluteals.
Dr Donnellan reports to Dr Khan on 24 October 2018 that L5 nerve root impingement is being investigated with a repeat MRI as the bone scan did not really show anything in the way of information in his lumbar spine.
On 13 December 2022 Dr Parikh, specialist pain management physician, notes “pain left leg constant with intermittent numbness” and “mildly tender left hip and left sij” and refers the applicant for an ultrasound of the left hip.[1]
[1] ARD page 287.
The report of the left hip ultrasound of 13 December 2022 comments “[n]o trochanteric bursitis.”[2]
[2] ARD page 836.
Respondent’s evidence
On 17 October 2023 the respondent confirmed to the applicant’s solicitors that the claim for the left lower extremity injury is disputed and an offer was made to pay for 12% whole person impairment for the lumbar spine injury.
The reports of treating medical practitioners Dr Khan, Dr Parikh, Dr Donnellan, Dr Nair and Dr Verma, psychiatrist, provide the history of complaints, investigations and treatment of the applicant’s conditions. The Certificates of Capacity include the diagnosis of L5 radiculopathy with multilevel disc prolapse (L3/4, L4/5 and L5/S1).
There are medico-legal reports from Dr Cameron, occupational medicine specialist, of 17 June 2020 who finds abnormal pain behaviour and pain focus, and Dr Moloney, neurosurgeon, who reports on 7 February 2022 regarding a complaint of neck pain.
Dr Lee, orthopaedic surgeon, provides a medico-legal report to the respondent on 26 August 2020. The doctor says “[m]ovement of the left hip was painful but the pain was felt mainly at the buttock region and not the groin, more likely related to his back and not his hip.”[3] Having considered the investigation reports Dr Lee concludes the signs and symptoms are consistent with the applicant’s back injury.
[3] Reply page 107.
Investigative reports include the CT lumbosacral spine report of 22 March 2017, the MRI lumbar spine report of 15 May 2018, the bone scan of the lumbar spine, pelvis and hips of 19 September 2018 which is normal, and the MRI lumbar spine and lumbar plexus of 15 November 2018 which shows no obvious abnormality in the lumbar plexus.
The report of the MRI lumbosacral plexus of 20 November 2019 refers to asymmetrical enlargement of the left piriformis muscle which may predispose the applicant to neural impingement of the exiting S2 nerve root and says the left S1 nerve root is anteriorly displaced by the enlarged piriformis muscle.
The left hip MRI reported on 6 February 2020 demonstrates “[o]sseous protuberance involving the anterior and anterolateral femoral head-neck junction and proximal femoral neck may predispose the patient to cam-type femoroacetabular impingement” and “[i]ntact acetabular labrum and hip joint articular cartilage.”[4]
[4] Reply page 67.
Dr Gregor Bruce, orthopaedic surgeon, provides his first medico-legal report to the respondent on 23 September 2022. The applicant complains of back pain and leg pain that are equally severe and troublesome and he describes pain in the low lumbosacral region with radiation down to the coccygeal region and to the left hip. Pain radiates down the back of his thigh, the posterior calf and into the sole of his left foot with numbness in the entire left lower limb and particularly on the sole of the foot. There were no investigations or reports of investigations available to the doctor.
Dr Bruce finds a prolapse of the L5/S1 disc with nerve root involvement and evidence of neuropathy as a direct result of the work-related incident, and assesses 12% whole person impairment of the lumbar spine.
On 25 August 2023 Dr Bruce reports the applicant does not describe pain specific to the hip and he describes the left lower limb pain as linked to the back pain. Asked for his diagnosis with respect to the applicant’s consequential left hip injury the doctor says;
“I did not confirm an injury to the left hip on this assessment or on the previous assessment. He complains of pain in his lower back extending into the left buttock and down the posterior and inner thigh. This is sciatic pain radiating from the pathology in his lumbar spine. He does not have symptoms characteristic of hip pathology.”[5]
[5] Reply page 163.
On examination Dr Bruce finds the pain from hip movement is located in his low lumbar region and not in the hip itself. The doctor says hip movement reproduced the lower back symptoms and did not indicate pain or pathology in the hip itself. There were no physical signs of pathology in his left hip.
Dr Bruce refers to the MRI scan of the hip of 6 February 2020 as showing developmental changes predisposing him to femoroacetabular impingement, a naturally occurring condition not the result of a work injury. The doctor finds no evidence of additional pathology such as a labral tear or articular cartilage degeneration, and he says most significantly there were no changes produced on the nuclear bone scan.
The doctor concludes there is a reduction of movement relevant to the developmental abnormalities in the left hip but this is not work-related. He assesses 12% whole person impairment of the lumbar spine as a result of the applicant’s work injury.
Applicant’s submissions
The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
There are competing opinions of Dr Guirgis and Dr Bruce regarding the matters in dispute. The applicant relies on the opinion and assessment of Dr Guirgis.
In the applicant’s submission when you examine Dr Bruce’s opinion he does not really engage with the nature of the claim the applicant presents in relation to the left lower extremity. Despite the fact Dr Guirgis provides the basis for his opinion on this part of the claim for the left lower extremity and Dr Bruce had the opportunity to examine the applicant, the respondent’s medical expert does not rebut the opinion of Dr Guirgis.
There is an accepted lumbar injury on 20 March 2017 which is well identified, and which resulted in the applicant being taken for almost immediate medical attention from the work site. There is a long history of a chronic lumbar injury with symptoms in the lower left leg and symptoms thereafter with various interventions and treatment modalities applied.
Dr Guirgis acknowledges those background historical events and he summarises the continuing symptom complex that the applicant complains of with chronic episodic pain. He indicates a burning paraesthesia in addition to the pain in the applicant’s left buttock, persistent pain in the trochanteric area of his left hip triggered and aggravated by moving his hip in certain directions, and pain, numbness, burning and paraesthesia in his left groin.
Having undertaken a medical examination and a review of the clinical material and investigations Dr Guirgis sets out a diagnosis. He describes the consequential condition as consistent with spine-hip syndrome including the symptoms and signs of Greater Trochanteric Pain Syndrome caused by the hip abductor weakness secondary to the L5 radiculopathy.
The applicant complains of pain in the trochanteric area.
The doctor notes the altered biomechanics of the relatively immobile axial skeleton and the hypermobile left lower limb at the hip joint as a result of the disc derangements. There in a nutshell is the expression of an expert opinion as to the presence of the consequential condition.
The doctor then proceeds to perform an assessment of the left hip.
Dr Bruce in his report of 25 August 2023 on the question of diagnosis says he did not confirm an injury to the left hip on this assessment or on the previous assessment. The applicant is not advancing a claim of the left hip injury as such as this is a claim for a consequential condition so the doctor’s observation in that regard is not controversial. He did acknowledge painful symptoms. His conclusion is there is no pathology in the hip related to the work incident.
Dr Bruce says nothing, in the applicant’s submission, in contradiction of the opinion of Dr Guirgis that the symptoms in the left hip are consistent with the spine-hip syndrome as a result of the altered biomechanics, the hypermobile left lower limb at the hip joint as a result of the disc derangements, the left L5 radiculopathy, with the hip abductor weakness playing a significant role in the syndrome he describes.
The applicant’s case is presented in an appropriate opinion of a qualified expert medical commentator. This supports a finding of a consequential condition that sounds in the assessment of permanent impairment.
The respondent’s case is to deny the injury occurred on 20 March 2017 and the applicant takes no issue with that, however the respondent does not engage with the case the applicant presents. On an evidentiary basis the applicant’s claim prevails and there should be a referral made in the terms sought in the ARD.
Respondent’s submissions
The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
The applicant’s submission is that Dr Bruce did not engage with the applicant’s case. First that reverses the onus. Based on the applicant’s evidence that there is a relationship in terms of the relevant authorities from Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) and following that the asserted condition, if there is one, in the left hip results from the accepted lumbar injury then the applicant cannot succeed. The evidence of Dr Guirgis does not come close to satisfying that onus.
Dr Bruce makes a diagnosis of lumbar spondylosis and disc prolapse at L5/S1 with irritation of the L5 or S1 nerve root. Under the heading of diagnosis with respect to the consequential left hip, so the doctor is clearly addressing it, he did not confirm an injury to the left hip on this assessment or in the previous assessment.
In the earlier report Dr Bruce did not take any history of complaint by the applicant and there has been no challenge to that. The applicant has not put on any evidence to say he told Dr Bruce that he had pain in his left hip and he did not record it so that must stand and be given weight.
On the second occasion in 2023 the doctor noted that he had tested hip movement and he is alive to that, obviously because he has been asked about the consequential left hip injury which the applicant has sought to claim.
The left hip movement was painful on testing he doctor located the pain as being from the lower lumbar region and not the hip itself.
That stands in direct contrast to the history Dr Guirgis took and his reported findings on examination.
The respondent’s submission is that there is simply a conflict in the evidence about the nature of the complaint, the applicant’s complaint as recorded by Dr Bruce of the pain from the lumbar spine and not the hip region, as opposed to Dr Guirgis who sought to identify the pain as being in the hip.
On the balance of probabilities the history and those findings on examination by Dr Guirgis should not be accepted.
They ought not be accepted firstly as this is contradicted by what Dr Bruce says. There is a vast amount of material from general practitioners and treating specialists with a dearth of any complaint of hip pain and no opinion that the applicant suffers from any pathology in the hip or symptoms in the hip related to the lumbar spine injury.
Dr Guirgis diagnoses hip-spine syndrome and that has not been identified or embraced by any other doctor, and critically there is no report from any treating specialist in support of Dr Guirgis.
The respondent submits that Dr Bruce does engage with the question of whether there are the asserted symptoms in the left hip and he says there is sciatic pain radiating from the pathology in his lumbar spine. He does not have symptoms characteristic of hip pathology.
Quite evidently Dr Bruce is addressing the question of whether there is a causal connection between the asserted hip pain and/or pathology and the lumbar spine injury and he is rejecting it, consistent with the absence of any treating doctor’s opinion that there is such a connection. Dr Guirgis’ report stands in isolation.
Dr Guirgis, in contrast to Dr Bruce, records the applicant’s complaint of persistent pain in the trochanteric area of the left hip triggered and aggravated by moving his hip in certain directions.
In all of the clinical material from Westmead Hospital, Dr Nair, Dr Donnellan, 4D Health and Performance and Injury Care there is an absence of support for the type of symptoms Dr Guirgis says the applicant complains of in his left hip.
In his examination Dr Guirgis records tenderness over the trochanteric area of the hip laterally and posteriorly, with pain reproduced with external rotation and abduction and by resisted abduction. Again that stands in direct contrast to Dr Bruce and there is no other support for it.
Dr Guirgis records restriction of movement in the hip but that could equally be due to pain caused in the lumbar area as Dr Bruce points out.
On diagnosis Dr Guirgis says there are consequential symptoms in the left hip and he has packaged a number of things. The first is spine-hip syndrome without providing any assistance as to what he understands that to be and its usual causes. The doctor then refers to symptoms and signs of Greater Trochanteric Pain Syndrome and again there is no attempt to define what that is or what the underlying elements of it are.
He goes one step further and refers to it being caused by hip abductor weakness secondary to the left L5 radiculopathy. He then notes that altered biomechanics of the relatively immobile axial skeleton and the hypermobile left lower limb at the hip joint as a result of the disc derangements, the left L5 radiculopathy and the hip abductor weakness would play a significant role in the described symptoms.
The doctor does not identify the altered biomechanics of the relatively immobile axial skeleton in the examination findings. He also does not identify a hypermobile left lower limb at the hip joint. He assesses the left hip as having less movement than the right and he does not identify anywhere that it has characteristics of hypermobility. Hip abductor weakness is also identified as a cause, and again that is not properly and clearly identified as a finding.
The doctor then concludes that all those things are as the result of disc derangements and the left L5 radiculopathy which is no more than a bare assertion by the doctor.
This is contrary to the fundamental requirements for acceptance of weight of expert opinion, with the starting point of Hancockv East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock) and the authorities that follow. In Hancock it is said an expert opinion for a non-evidence based jurisdiction needs to conform in a sufficiently satisfactory way with the normal rules for giving of evidence by an expert.
Dr Guirgis has not done that. He has relied on a number of findings which he has not properly identified and he refers to syndromes which he does not define and does not identify, and he then makes a bare assertion about causation without setting out why or how he has reached his opinion.
Finally and perhaps even more fundamentally there is a significant omission in the material Dr Guirgis had. There are a number of reports and investigations Dr Guirgis refers to and the MRI scan of the hip which was performed on 31 January 2020 dated 6 February 2020 is not included.
That MRI found an ossesous protuberance involving the anterior and anterolateral femoral head-neck junction and proximal femoral neck which it says may predispose the applicant to cam-type femoroacetabular impingement. This has not been seen by Dr Guirgis, his attention has not been directed to it and he has not addressed it.
Dr Bruce, who considered the MRI report, provides the opinion that the symptoms are more likely due to the lumbosacral spine itself. The opinions of Dr Guirgis about various syndromes without having considered this MRI report cannot go very far because he has not seen the scan of the hip and his opinion is simply based on the history the applicant gives, which is not consistent with the history Dr Bruce records.
This opinion is also not supported by any history recorded by treating doctors. Dr Guirgis has based his opinion on findings of his examination and he has not set out his opinion properly, and absent the MRI scan which creates even more doubt about his opinion.
For all those reasons the Commission would not be satisfied that the alleged consequential condition of the left hip results from the accepted injury to the lumbar spine.
Applicant’s submissions in reply
It is trite law that the assessment of the question of a secondary condition is subject to the decision of DP Roche in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 where he observed it was only necessary to determine that the condition resulted from the original injury, a straightforward causation issue. It is not the presence of pathology that is determinative of whether the condition exists or not and symptoms are enough to make out the claim on its terms.
FINDINGS AND REASONS
The applicant must establish on the balance of probabilities that the symptoms and restrictions in his left hip have resulted from his lumbar spine injury.[6]
[6] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45]-[46].
The applicant is not required to establish that a consequential condition is an ‘injury’ pursuant to s 4 of the 1987 Act or that the employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.[7] It is also not necessary for the applicant to identify pathology for a finding to be made of a consequential injury.[8]
[7] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [56].
[8] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169], Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [55].
The question of causation is to be determined on the facts of each case and requires a “commonsense evaluation of the causal chain” based on the evidence, including expert opinions where applicable.[9] There must be actual persuasion of the occurrence or existence of a fact before it can be found.[10]
[9] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [464]; 10 NSWCCR 796.
[10] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
There is not sufficient evidence in my view to support a finding that the applicant has suffered a consequential left hip condition as a result of his accepted lumbar spine injury of 20 March 2017.
The applicant relies on the medico legal report of Dr Guirgis.
Dr Guirgis describes spine-hip syndrome and signs of Greater Trochanteric Pain Syndrome caused by hip abductor weakness secondary to the left L5 radiculopathy.
The doctor notes that the altered biomechanics of the axial skeleton, and the hypermobile left lower limb at the hip joint as a result of the disc derangements, the left L5 radiculopathy, and the hip abductor weakness would play a significant role in the described syndrome.
Dr Guirgis examines the applicant and finds tenderness over the trochanteric area of the hip laterally and posteriorly, pain reproduced with external rotation and abduction and by resisted abduction, and restriction of movement in the left hip.
In support of a finding of hip abductor weakness, on examination Dr Guirgis finds the Trendelenburg’s test positive on the left side.
I do not in general agree with the respondent’s submission that Dr Guirgis does not set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the applicant, and information from X-rays and other tests.[11]
[11] Hancockv East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399.
It is clear however that Dr Guirgis was not provided with and did not consider the MRI report of the left hip dated 6 February 2020. I agree with the respondent’s submission that this greatly lessens the weight that may otherwise be placed on the doctor’s opinion.
The respondent is critical of there being no treating specialist or other medical evidence that supports the findings made by Dr Guirgis and his opinion that the applicant has consequential left hip symptoms.
While in some cases it may pose a difficulty where the first reference to a condition is in a medico legal report, this is not always the case.[12] In this case however no diagnosis of a left hip condition or spine-hip syndrome has been made prior to Dr Guirgis’ examination, and despite the history of the applicant’s complaints of pain in the lumbar spine and the left lower extremity.
[12] Acquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 at [129].
Dr Bruce notes the applicant made no complaint of hip pain at either examination he conducted and the respondent’s submission is that there is also no history of hip pain complaints made by the applicant to his treating practitioners.
While the focus has clearly been on investigating and treating the applicant’s lumbar spine injury, some investigations of the left hip have been also carried out.
Dr Nair requested the MRI of the left hip reported on 6 February 2020. In the doctor’s report that follows there is only reference made to radiation of pain in the left lower extremity in an L5 dermatomal pattern.
There is a complaint made by the applicant to Dr Parikh of mild tenderness in the left hip region in December 2022.[13]
[13] ARD page 287.
Dr Parikh then requests the left hip ultrasound that reported no trochanteric bursitis. There is no evidence of Dr Parikh or any other medical practitioner commenting on this report.
The applicant submits that Dr Bruce does not contradict or otherwise engage with the opinion of Dr Guirgis on diagnosis or that the applicant has symptoms that are consistent with spine-hip syndrome.
Dr Bruce in his examination of the applicant tested hip movement and found the symptoms and signs relevant to the hip are referred from the applicant’s lumbosacral spine. This appears to accord with the opinions formed by Dr Donnellan and Dr Nair.
Although Dr Bruce may not have engaged directly with Dr Guirgis’ diagnosis, when asked to provide his opinion on the assessment made by Dr Guirgis Dr Bruce concludes there is a reduction of movement relevant to the developmental abnormalities in the left hip but that this is not work-related.[14]
[14] Reply page 165.
Dr Bruce finds no physical signs of pathology in the left hip, however as the applicant submitted the presence of pathology is not determinative for a finding to be made of a consequential injury where there are otherwise symptoms.[15]
[15] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [166].
Aside from Dr Guirgis’ opinion the medical evidence suggests the relevant causative explanations for the applicant’s left hip symptoms are radiculopathy from the lumbar spine injury or what is described in the MRI report of 6 February 2023, a non-work-related condition.
A determination is required as to whether on the balance of probabilities the applicant’s left hip symptoms and restrictions resulted from the lumbar spine injury, and in this case are symptoms in addition to any symptoms of radiculopathy resulting from the accepted lumbar spine injury.[16]
[16] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169].
There is in my view a want of evidence of a sufficient connection between the lumbar spine injury of 20 March 2017 and the applicant’s left hip condition.[17]
[17] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [463]-[464].
The evidence of Dr Guirgis does not satisfy the applicant’s onus of proof as his opinion is not supported by the balance of medical evidence and he did not have the benefit of considering the left hip MRI report of 6 February 2020.
Considering the evidence as a whole and based on a commonsense evaluation of the causal chain, I find that the applicant does not have a left hip condition that results from his accepted lumbar spine injury.
SUMMARY
I find that the applicant has not suffered a left hip condition as a result of his lumbar spine injury and so there must be an award for the respondent.
The claim for lump sum compensation for permanent impairment of the applicant’s lumbar spine will be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of the lumbar spine injury of 20 March 2017.
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