King v R a Motors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	King v R A Motors [2025] NSWPIC 237
APPLICANT:	Richard King
RESPONDENT:	R A Motors
MEMBER:	Parnel McAdam
DATE OF DECISION:	29 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Consequential injury; accepted injury to left knee; left leg later developed symptoms of complex regional pain syndrome (CRPS); whether applicant suffered a consequential condition in right leg; symptoms appeared spontaneously due to mirroring; requirement for pathology in a consequential condition; Grant v Dateline Imports Pty Ltd discussed; Moon v Conmah Pty Limited, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan applied; specific issues in CRPS cases; Elsworthy v Forgacs Engineering Pty Ltd discussed; Held – applicant suffered a consequential condition in his right lower extremity; matter referred for assessment of impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition in his right lower extremity, being complex regional pain syndrome. 2. The matter is remitted 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: Date of injury: 1 October 2017. Body systems/parts: Left lower extremity (knee, complex regional pain syndrome), and right lower extremity (complex regional pain syndrome). Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the Reply and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr King was employed by the respondent as a sales consultant. In April 2017, he was walking down a series of stairs into the car yard, when he slipped, with his left foot being caught in a gap between two stairs.
He continued to work, although was in pain at the time. The pain continued. On 1 September 2017, he consulted his general practitioner, who began a treatment program including investigations and referral to an orthopaedic surgeon. Ultimately Mr King required surgery in the left knee. The pain (and other physical symptoms) continued in the left knee for an extended period.
In October 2023, Mr King began experiencing swelling and pain in his right knee, which was reported to his treating pain specialist, Dr Shetty, who had earlier diagnosed complex regional pain syndrome (CRPS) in the left knee. Dr Shetty observed symptoms consistent with CRPS in the right knee, by way of mirroring.
On 29 February 2024, Mr King, through his solicitors, made a claim for lump sum compensation in the left and right lower limbs, based on a medical report of Dr Dias. The respondent disputed liability for the consequential lumbar spine and right knee condition, as a result of the accepted injury to the left knee that occurred on 1 October 2017.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition in his right knee as a result of injury suffered to the left knee.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
During the hearing of this matter on 8 May 2025, an extended period of time was spent in an attempt to resolve the dispute. The parties were ultimately unable to reach an agreement. The hearing commenced with oral submissions from applicant’s counsel, Ms Grotte. Due to the time of day and other commitments of the parties, the matter was unable to be completed via oral submissions. Accordingly, I issued a direction for written submissions. The respondent, represented by Mr Adhikary of counsel, filed submissions on 12 May 2025. The applicant filed submissions in response on 20 May 2025.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) the Reply and attached documents.
The applicant provided a comprehensive summary of the relevant evidence during her submissions. I have considered that material in detail and will discuss the relevant documentation below, in brief.

The applicant’s statement

Mr King provides a statement dated 8 October 2024. He describes the initial onset on injury to his left knee in April 2017, followed by a period of continuing to work until he saw his general practitioner on 1 September 2017 (which eventually became the date of injury for the left knee).
He sets out a history of surgery, cortisone injections, and the use of a TENS machine. He describes seeing Dr Shetty, a pain specialist, who diagnosed CRPS in the left knee in May 2023. He states that during this time, he continued to limp and put weight on his opposite left to avoid pain. In October 2023, he began experienced pain and swelling in the right leg, and was informed that his CRPS had spread.

The dispute notices

The respondent issued a dispute notice on 5 March 2024, following the claim for lump sum compensation served by Mr King. In that notice, the consequential lumbar spine and right knee conditions are disputed (noting here that the lumbar spine condition is not pressed in these proceedings). The dispute notice identifies that given the time that has passed and the lack of contemporaneous evidence, there is not sufficient evidence to support the conclusion that the consequential condition developed as a result of the work injury. There is no clinical explanation of the particular tasks or activities that have caused the right knee condition.
A further s 78 notice was issued on 9 August 2024. This decision was prepared following assessment by A/Prof Waller, who provided an opinion as an independent medical expert on behalf of the respondent.

Reports of Dr Dias

Dr Dias provides four reports for the applicant as an independent medical expert.
The first is dated 23 August 2022 and is attached to the Reply. This report is dated in time prior to the diagnosis of CRPS in the right lower extremity, and apparently before the symptoms began. There is a comprehensive history provided of the onset of symptoms. At that time Mr King stated that he did not currently suffer from significant symptoms of pain affecting his lower back, or right knee (due to overcompensation for prolonged altered gait patterns). Dr Dias preformed an examination of the left knee and leg. He provides the following diagnosis:
“Mr King has developed Complex Regional Pain Syndrome (CRPS) Type I affecting his left knee/leg, over the course of the past five and a half years, since the subject workplace accident of April 2017. Mr King’s initial injury was that of acute left knee medial meniscal tear with associated chondral damage to the medial femoral condyle, following a workplace accident in April 2017. Mr King has since developed sensory, motor, vasomotor and sudomotor symptoms and signs consistent with Complex Regional Pain Syndrome Type I, affecting his left knee, proximal left leg and distal left thigh region over the course of the past five and a half years since the subject accident. He continues to suffer from debilitating symptoms and signs consistent with Complex Regional Pain Syndrome (CRPS) type I affecting his left knee/leg region, on a daily basis, at almost five and a half years following the subject accident”
The second report is dated 22 February 2024 (two reports are provided on this date – one of which assesses whole person impairment). Dr Dias notes his previous assessment. He notes at the time of that assessment Mr King had not been formally diagnosed with CRPS type 1, but since that time had come under the care of Dr Shetty, “who confirmed the diagnosis”. He records the following in respect of the right knee:
“Unfortunately Mr King has developed virtually identical symptoms and signs affecting his right lower limb, centred around his right knee, right thigh and proximal right leg, and has been diagnosed with CRPS type 1 affecting his contralateral right lower limb, by his treating pain medicine specialist, Dr Sachin Shetty. Mr King’s “mirroring” of CRPS in his right lower limb began to develop, in around mid-2023, and was noted by his treating pain medicine specialist in late August 2023.”
Under current symptoms, Dr Dias records that Mr King “continues to suffer with debilitating symptoms and signs consistent with CRPS type 1 affecting his left knee, proximal left leg and left thigh”. He records the following in respect of the right knee:
“Mr King also suffers with virtually identical but slightly worse similar symptoms and signs affecting his right knee, proximal right leg and right thigh. The pattern of distribution is virtually identical in his right lower limb when compared to the left lower limb. In addition, his symptoms in his right lower limb tend to radiate more inferiorly to his right foot and ankle region. He suffers with significant intermittent swelling affecting his right and left knees.”
Dr Dias confirms the diagnosis of CRPS type one in the left limb, and then provides the following in respect of the right knee:
“Mr King has also developed a consequential complex regional pain syndrome (CRPS) type 1 affecting his right knee/leg/thigh region, since mid-2023. He developed contralateral complex regional pain syndrome, in virtually an identical anatomical distribution in his right lower limb, when compared to his work-related left lower limb symptoms, as a consequence of his work-related left lower limb condition. He continues to suffer with motor, sensory, vasomotor and sudomotor symptoms and signs consistent with CRPS type 1 affecting his right knee, proximal right leg and distal right thigh region, due to spreading of complex regional pain syndrome type 1 to his contralateral lower limb. These symptoms began to manifest in mid-2023 and have persisted over the course of the past six months.”
In a separate report of the same date, permanent impairment was assessed at 34%.
Dr Dias provides a supplementary report dated 30 January 2025. Dr Dias opines that Mr King has symptoms and signs consistent with a clinical diagnosis of CRPS, and that he fulfils all of the “Budapest” criteria. Dr Dias opines that Mr King has developed a consequential CRPS condition in his right knee/leg/thigh region, “in virtually an identical anatomic distribution”. He states:
“These symptoms began to manifest in mid-2023 and have persisted ever since. As Mr King's treating pain medicine specialist, Dr Sachin Shetty noted in his report dated 23 January 2025, Mr King has developed mirroring of the CRPS symptoms in his right lower limb, to his contralateral left lower limb, which can sometimes be spontaneous, and there is evidence in the medical literature for mirroring of CRPS to the contralateral limb. I refer to Dr Shetty’s medical report dated 23 January, in this regard. In my opinion, Mr King's right lower limb CRPS symptomatology would not have developed had it not been for Mr King's work-related left lower limb condition and therefore, his right lower limb condition is consequential to his work-related left lower limb injury.”
Dr Dias agrees with Dr Shetty and disagrees with the opinion of A/Prof Waller.

Report of A/Prof Waller

A/Prof Waller provides two reports for the respondent. The first is dated 14 June 2024. His history of the incident to the left knee is slightly inconsistent with what actually occurred, noting that A/Prof Waller indicates that it occurred on 1 October 2017, when it in fact occurred in April of that year, and 1 October 2017 represents the date on which Mr King was first incapacitated.
On examination, it was noted that Mr King walked with a slight limp. A/Prof Waller found symmetrical thigh and calf circumference, with slightly more movement in the right knee than left. He records:
“There were no neurocutaneous features of complex regional pain syndrome. The limbs were well perfused and equal in temperature to touch. There was no abnormal colouring or sweating abnormalities. There were no trophic changes of the skin, hair or nails, and no muscle wasting.”
He records the following history of symptoms:
“He continues to experience pain in the whole of the left leg from the hip to the ankle centred on the medial aspect of the left knee. Since 2023 he has developed similar symptoms in the right leg from the hip to the ankle centred on the medial aspect of the right knee.”
On clinical examination of both knees, he records “hypersensitivity to touch”, and then goes on to state that there are no signs of CRPS. He provides the following answer to whether the injury has resolved:
“There is no relationship between the work injury on 1 October 2017 and Mr King’s current symptoms in either knee. In my opinion his work injury of 1 October 2017 has resolved. He had a pre-existing degenerate tear of the medial meniscus and an arthroscopy in May 2018. He has mild degenerative osteoarthritis that is unrelated to his injury.”
He opines that “there has been no injury to the right knee”, but it is noted that this is not a claim for injury but rather a consequential condition. A/Prof Waller explains that he does not agree with the assessment of CRPS as there are “no signs to support this diagnosis and he does not satisfy the criteria for a diagnosis of CRPS type 1 under the Budapest or SIRA criteria”.
A/Prof Waller provides a supplementary report dated 4 March 2025. This was prepared in response to reports of Dr Shetty and Dr Dias. A/Prof Waller confirmed his opinion that Mr King did not satisfy any of the criteria for CRPS, apart from that pain is out of proportion to the initial injury. In respect of the opinion of Dr Dias, he states that:
“If Mr King had CRPS in the left knee for more than six years and the right knee for one year, I would have expected to see some wasting in the legs. However, at my assessment on 11 June 2024 he had symmetrical thigh circumference at 45cm and symmetrical calf circumference at 36cm. I would also have expected to see signs of osteoporosis in the right lower limb, but no such changes have been reported.”
A/Prof Waller agrees that CRPS mirroring has been reported in the literature:
“CRPS Type 1 mirroring has been reported in the literature but is not relevant in this case because Mr King does not have CRPS 1 in either leg. He has mild osteoarthritis with symptoms that are out of proportion to the clinical and radiological findings. It may be relevant that he recorded extreme scores on the DASS (depression, anxiety, stress) scale.”

Reports of Dr Shetty

Dr Shetty is a treating pain specialist. He provides a series of reports in support of Mr King, some of which have been referred to above. He first saw Mr King in May of 2023, and provides a report dated 18 May 2023. In that report, he provides the following impression:
“Richard has features of persistent mechanical left knee pain with stronger limits of central sensitisation of nociception. This, combined with a high level of stress and anxiety that he deals with on a daily basis, is easy to compound the current levels of pain. The are sequelae to Complex regional pain syndrome present in his left leg although currently, it might just miss out on the diagnostic criteria.”
He describes the symptoms as “some complex regional pain syndrome like sequelae”.
On 29 August 2023, Mr King returned to see Dr Shetty. At this point the right-sided symptoms began to appear:
“The compounded anti-neuritic cream did, however, help his symptoms until he noticed a spontaneous flare-up a couple of months ago which happened on his right leg which is now “behaving” exactly how his left leg was “behaving” when he had the CRPS developing. There were no specific triggers that he could recall with respect to trauma, change of activities or any other illness.”
He goes on to refer to the literature (which A/Prof Waller acknowledges, as above):
“There is evidence in literature around mirroring of CRPS to the contralateral limb which sometimes can be spontaneous. In most instances, this tends to be a more benign version of the original problem. However, it would be important to try and contain this and minimise the overall functional impact.”
On 14 November 2023, Dr Shetty notes that Mr King experiences:
“episodes of spikes of his pain levels with some ongoing mirroring of his CRPS symptoms noted in the right leg which has had a significant period of overcompensation when the left leg CRPS symptoms were more active. Richard does notice some ongoing autonomic changes in the right leg with episodic swelling, minor colour changes and patchy allodynia.”
Dr Shetty also provides a supplementary report that is more in the nature of a medicolegal opinion. He was asked a question about the development of CRPS in the left leg, to which he responded:
“Richard presented with features of persistent mechanical left knee pain with stronger limits of central sensitisation of nociception. This, combined with a high level of stress and anxiety that he deals with on a daily basis, is easy to compound the current levels of pain. There were sequelae to Complex regional pain syndrome present in his left leg although currently, it might just miss out on the diagnostic criteria.”
He comments on A/Prof Waller’s opinion:
“As I have explained in the above questions, Mr King presented on his initial consultation with me showing features of persistent mechanical left knee pain with stronger flavour of central sensitisation of nociception. There were sequelae to Complex regional pain syndrome present in his left leg although currently, it might just miss out on the diagnostic criteria. All these correlates to Dr Waller’s statements.”
He states he has “no objection” to Dr Dias’ report.

Report of Dr Gorman

Dr Gorman, who is a pain medical specialist, provides a report dated 12 July 2024. Again he takes a slightly incorrect history of injury that occurred on 1 October 2017. He provides the following diagnosis:
“Mr King has left and then right knee pain with findings consistent with osteoarthritis with meniscal tears.
He does not have complex regional pain syndrome (CRPS). He does not have the features of complex regional pain syndrome to satisfy this diagnosis and previous Pain Specialists, including Dr Nazha and Dr Shetty, have agreed.”
He suggests that the presentation is more of somatic symptom disorder, and there are no physical findings that would explain the level of widespread pain.

Reports of Dr Nazha

Dr Nazha is a pain physician who treated Mr King in 2022. He provides two reports. On 3 August 2022, he observed the following (at this time confined to the left leg):
“Richard describes dysaesthesias, numbness and pins and needles at the medial aspect of his knee. Although, intermittently, he will see some discoloration, it is not consistent with complex regional pain syndrome. He does not satisfy the Budapest criteria for complex regional pain syndrome.”
Dr Nazha sets out the symptoms he found on the examination. He states that the pain does appear to be neuropathic and does not satisfy the Budapest criteria for CRPS.
A further report dated 12 January 2023 essentially repeats the same thing as above, noting that despite the lack of diagnostic criteria for CRPS, management strategies will be essentially similar.

Clinical records of the applicant

Extensive clinical records are attached to the Application, including from the applicant’s treating general practitioner, physiotherapist, and psychologist. During the course of submissions the applicant referred to some of those records. I do not intend to set them out in detail but have considered them, particularly the records referred to by the parties in submissions.

SUBMISSIONS

As indicated, the applicant provided oral submissions at the hearing, which were responded to by written submissions.

The applicant’s submissions

The applicant commenced by pointing out that the issue for determination is limited to whether Mr King has sustained a consequential condition as a result of his accepted condition in his left knee. The condition has been diagnosed by a treating pain specialist as CRPS and the condition in the right knee arose as a result of mirroring.
The applicant referred to Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 (Elsworthy) and Cizmar v D&P SPECIALISTS PTY LTD [2023] NSWPIC 483, submitting that the mean I have jurisdiction to make a determination about whether the symptoms that have arisen in the right knee are causally related to the left knee. Ultimately, it is a matter for the Medical Assessor to determine whether the symptoms satisfy the criteria for a diagnosis of CRPS.
The applicant spent a considerable period of time outlining the history of the development and diagnosis of CRPS, first in the right knee, and then in the left knee. By August 2022 there is a suggestion that Mr King has a CRPS condition, with a referral to a pain specialist from his treating general practitioner on the suspicion of CRPS. This is how the report of Dr Nazha arises.
The applicant, throughout submissions, referred to the various reports of Dr Shetty. His first report provides a working diagnosis of CRPS, not saying that he has it absolutely, but that he has CRPS like sequelae. The applicant submits that there doesn’t have to be an absolute diagnosis in the left knee.
The right knee then begins to appear in the clinical notes. There are references in physiotherapists notes to swelling, an allied health recovery request that refers to the right knee flaring from overload use, which includes subjective reports plus objective reports. By 9 August 2023, the applicant’s physiotherapist reports that the right knee is worse than the left.
The applicant submits that it’s not an overcompensation type injury. We don’t know what’s caused the connection or mirroring, but there is ongoing mirroring. The applicant’s case is based on significant pain, ongoing sequelae in the left leg, and has support from a treating specialist and then an independent medical expert. Whilst Dr Nazha did not support a diagnosis in August 2022, this doesn’t deal with the right leg and doesn’t deal with the persistent issues in the left leg.
In respect of the reports of A/Prof Waller, he states he didn’t find any elements of CRPS but you have to wonder at this. At the very least he has ongoing pain, and there has been an overcompensation. The applicant submits that I couldn’t place any weight on his opinion, what he observed, as he doesn’t believe there’s any ongoing problems from the work injury. The report is at odds with all of the evidence before me. His opinion of an alternative hypothesis is unsupported. The applicant also notes that A/Prof Waller is not a pain specialist, he is an orthopaedic surgeon. This is contrasted with Dr Dias who defers to the opinion of Dr Shetty on the existence of CRPS.
The applicant submits that I would be satisfied that there is a consequential condition. Whether it meets the criteria in the Guidelines is a matter for a Medical Assessor, but I can be satisfied there are features of CRPS. Consequential conditions only require a results from test based on a commonsense evaluation of the causal chain, and there is enough evidence to show the consequential condition relates to the accepted injury.

Respondent’s submissions

As indicated, due to time constraints the respondent provided written submissions in response to the oral submissions given by the applicant.
The respondent’s submissions commence with identifying the issues in dispute as crystallised in the direction I issued on 31 March 2025 being “whether the applicant has developed a consequential condition in his right knee due to mirroring in the contralateral limb as a result of the accepted left knee injury.”
The respondent submits that any allegation pertaining to causation of the right knee condition not related to mirroring ought not be considered.
The respondent submits that the factual basis on which the applicant relies is not supported by his own treating specialists, and the medico legal evidence should not be accepted. I should not accept that the applicant has sustained CRPS in the left knee and that mirroring has occurred in the right knee.
The respondent submits that the matter cannot be simply determined on the basis of the presence of symptoms, with reference to Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 (Grant). The question of causation in the right knee cannot be undertaken without making an enquiry into the pathology that is causing the symptoms in the right knee, and thus the left knee.
The respondent refers to Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39, submitting that it could not be accepted that “mirroring” occurred in this matter without evidence in an acceptable form. If there is no CRPS, there is no mirroring, and causation is not established. There is significant doubt that the applicant has sustained CRPS in his left knee. The applicant’s claim does not rise to a standard higher than mere conjecture.
The respondent disputes the reliance on medical literature undertaken by Drs Dias and Shetty on the basis that they have not made any attempt at relating the findings in literature to this particular applicant.
The respondent then refers to the opinion of Dr Nazha who ruled out CRPS and indicated that the pain in the left knee was neuropathic in nature. Dr Shetty indicates the applicant did not meet the diagnostic criteria for CRPS. Once it become evidence the applicant did not have CRPS in the left knee, then the mirroring falls away. Dr Shetty does not provide any reasons or explain why the mirroring has occurred.
The respondent refers to Dr Shetty’s reference to overcompensation in his report dated 14 November 2023. It is submitted that this cannot be considered in accordance with the direction dated 31 March 2025. Dr Shetty goes on to state in his 23 January 2025 report that the applicant did not have CRPS as he might just miss out on the diagnostic criteria.
The respondent also submits that the opinion of Dr Dias should not be accepted. In his first report, his diagnosis of CRPS was at odds with the treating medical evidence. Dr Dias, in his second report, indicates that Dr Shetty diagnosed CRPS type one which is factually incorrect as he has not made such a diagnosis and specifically indicates that the applicant does not meet the criteria for CRPS. On this basis, the opinion is flawed and not provided in a fair climate, as a diagnosis of CRPS did not in fact exist. His opinion is also said to be conjecture.
The respondent relies on the evidence of Dr Gorman and A/Prof Waller and submits their opinions should be accepted. A/Prof Waller accepted that mirroring has been reported in the literature but was not relevant in the applicant’s circumstances as he did not have CRPS.
The respondent goes on to make submissions about the terms of the referral based on any findings made about the body parts alleged.

Applicant in response

The applicant provided written submissions in response in accordance with the direction I issued. The submissions are presented under a series of headings which usefully summarise and respond to the issues raised by the respondent.
In respect of the issues for determination, the applicant submits that the respondent is seeking to limit the dispute for determination in a way that the s 78 notice has never sought to limit. The description in the Application does not limit the mechanism by which the consequential condition has developed. The applicant’s case is that the cause of CRPS in the right limb may include an element of overcompensation that has resulted in mirroring. The respondent’s submission that anything other than mirroring should not be considered should be rejected.
In respect of the legal principles regarding consequential conditions, it is submitted that the respondent’s submissions are misconceived. The left knee is an accepted injury. As a consequence, the applicant developed ongoing pain and restrictions. The whole of the report of Dr Shetty should be read, which concludes that the applicant was exhibiting symptoms of CRPS and there was a mirroring effect in the right knee/leg. Whether the applicant qualifies for an impairment rating is a matter for a Medical Assessor. The applicant is only required to establish symptoms and restrictions in the right leg consequential upon the left knee injury. Neither pathology nor diagnosis is required to be established. A commonsense evaluation of the causal chain is what is required.
The applicant then sets out some principles governing expert evidence, with reference to Gonzalves v Wideline Pty Ltd [2023] NSWPICPD 74. The applicant submits that Dr Dias’ opinion ought to be accepted because it is not only based on Dr Shetty’s reports, but also his own examination, his observations, and his skill and expertise. A fair reading of Dr Dias’ opinion is that he reached his conclusion as a result of his own physical examination and a consistently recorded history. His opinion and diagnosis should be accepted. The applicant submits that A/Prof Waller’s opinion should not be accepted. The applicant disagrees with the submissions made concerning the terms of the referral, should I be satisfied of the consequential condition as found.

FINDINGS AND REASONS

The nature of the dispute

The respondent’s submissions raised the issue of the direction issued in this case on 31 March 2025. It is appropriate that this issue first be dealt with. The direction was issued on 31 March 2025 and followed the preliminary conference that occurred on that date. Order 1 of that direction provides:
“The issue in dispute is whether the applicant has developed a consequential condition in his right knee due to mirroring in the contralateral limb as a result of the accepted left knee injury.”
The respondent submits that no allegation pertaining to causation of the right knee other than mirroring can be considered. The applicant disagrees with that assertion.
The description of injury in the Application provides the following:
“Sometime in April 2017, in the course of his employment, the worker while climbing down from a set of floating wooden stairs, got his foot caught in the gap and fell face forward onto the bottom of the stairs. Subsequently, he began experiencing severe pain in his left knee for which he sought medical treatment. In October 2017, the worker became aware of benefits available under workers compensation and lodged a claim. In October 2023, the worker began experiencing pain and similar symptoms (of his left knee) in his right knee.”
In respect of the right knee, it is noted that this is a broad description, not limited to any particular causal connection. The basis of the respondent’s contention, in attempting to limit the dispute in this case, appears to be to exclude contribution from any overcompensation or favouring.
Firstly, I would note that the direction does not limit the dispute between the parties, which has been crystalised by the dispute notices issued by the respondent and framed by the Application and Reply, and the medical evidence attached thereto. There are circumstances where a direction will limit the issues in dispute (such as limiting the issues to types of compensation) but that does not limit the medical explanation for how an injury occurred.
In any event, I do not accept the respondent’s construction on a legal and factual basis. The description of the consequential condition being caused by mirroring is set out in the medical evidence, postulated by Dr Shetty and accepted by Dr Dias. The contributory causes of that mirroring can include multiple factors, and does not exclude overcompensation or the like. As the applicant submits, this may well include an element of overcompensation that has resulted in mirroring.
Dr Shetty, in his report of 15 December 2013, provides:
“He does experience episodes of spikes of his pain levels with some ongoing mirroring of his CRPS symptoms noted in the right leg which has had a significant period of overcompensation when the left leg CRPS symptoms were more active.”
The applicant’s statement is also consistent with the opinion of Dr Shetty. He states: “During this time, while working and otherwise, I continued limping and putting more weight on my right leg to avoid experiencing pain”.
What has specifically not been claimed is the alternative hypothesis for the symptoms in the right knee postulated by A/Prof Waller. In his report of 14 June 2024, he was asked to provide an opinion as to whether “the injury to the right knee, if any, arose out of or in the course of Mr King’s employment on 1 October 2017”. I note firstly that this question is incorrect and misleading as to the factual basis of the applicant’s claim. He has never claimed he injured his right knee on 1 October 2017. It is not clear why this question has been asked. Mr King has always claimed that the symptoms in his right knee came on years later. A/Prof Waller nonetheless answers the question in the following way:
“There has been no injury to the right knee. He has signs of mild degenerative osteoarthritis that are unrelated to his left knee injury on 1 October 2017.”
In a further report, dated 4 March 2025, he was asked a more appropriate question: “Do you remain of the opinion that the right knee/leg symptoms are not consequential nor causally related to the work injury on 1 October 2017 to the left knee?”. Given he was not specifically asked about a consequential condition in his earlier report, it is curious that he could remain of an opinion not given. Nonetheless he replied:
“Yes. Mr King is 64 years old, overweight (BMI 28), physically deconditioned, and suffers from anxiety and depression. He has constitutional patellofemoral osteoarthritis in both knees. His right knee arthritis is not consequential upon his left knee injury at work on 1 October 2017. The favouring argument where an injury to one knee causes a consequential injury to the other knee is commonly believed but is not supported by medical literature. See statement and references below.”
Again, this is an alternative hypothesis that has not been proffered by the applicant. He does not claim he has aggravated patellofemoral arthritis in the nature of a consequential condition. That consequential condition would be specifically excluded, not by my direction, but by the nature of the dispute between the parties that has been brought to the Commission.
A medical hypothesis for the consequential condition in the applicant’s right knee is provided by Dr Shetty in his report of 23 January 2025. He explains:
“There is evidence in literature around mirroring of CRPS symptoms to the contralateral limb (Contralateral CRPS) which sometimes can be spontaneous. In most instances, this tends to be a more benign version of the original problem.”
This is a statement of generality (which the respondent has addressed in submissions, which I will come to later). In some cases, CRPS mirroring can be spontaneous. That does not preclude specific trauma, or over-time type aggravations. It should also be noted that in the very next paragraph of that report, Dr Shetty goes on to postulate some other contributing causes:
“Other possible issues which could contribute to his right lower limb symptoms include pain related to altered body mechanics as a coping mechanism for the left leg pain, spreading of pain symptoms related to central sensitisation, or lumbar spine issues.”
Here, the specific issue of altered body mechanics is raised. This is not raised as causing anything other than CRPS in the right limb (i.e. there is no suggestion of an osteoarthritis type condition as postulated by A/Prof Waller).
My reading of the medical opinion of Dr Shetty’s opinion is that “mirroring” is a phenomenon that can occur with CRPS. It can occur spontaneously, but in the present case, there are contributing factors that he considered for the symptoms Mr King presented with. This specifically included altered body mechanics. Dr Shetty goes on to exclude any significant lumbar spine contribution.
The applicant’s altered body mechanics, antalgic gait, or overcompensation, are part of the background causal connection that led potentially to “mirroring” of the CRPS symptoms from his left knee into his right knee. There is no restriction on my consideration of those issues by way of the direction issued on 31 March 2025. The respondent’s submissions on that point are a red herring and are rejected.

Determination of consequential conditions

Both parties have made general submissions about the legal concepts surrounding consequential conditions and what I must consider to be satisfied that the applicant suffers from such a condition. The applicant refers to Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at [43]-[47]. Much like in Moon the applicant is not claiming that he injured his right knee in the course of his employment. He is alleging that as a result of his accepted left knee injury, he developed symptoms in his right knee. This is despite the confusion, discussed above, on behalf of A/Prof Waller, who answered questions about injury which were put to him.
Deputy President Roche distinguished the requirements in Moon:
“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.”
There is also some dispute about whether it is sufficient to identify symptoms, or more needs to be identified, extending to pathology or, indeed, a diagnosis. In that regard the respondent refers to Grant at [80]:
“Thus, the notion that it is not necessary to identify the pathology causing the symptoms is couched in terms of the issues for determination and the available evidence.”
The above conclusion was made with reference to Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169], where DP Snell held:
“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. In Kumar the relevant finding was based on the existence of symptoms.”
I accept as a general principle that the determination of whether a consequential condition exists, and whether pathology, diagnosis, or simply the identification of symptoms is required is dependent upon the facts of the case. Again, I am of the view that the respondent’s submissions on this point are something of a red herring. This is not a case where only symptoms have been reported without a rational explanation. This is different to Grant, where there were some references to Mr Grant using his left arm more, but no medical opinion that distinguished an overuse syndrome from some other cause, including potentially central neuropathic pain (see Grant at [81]-[82] and [85]). Grant proceeded and was determined on an evidentiary basis (or a lack of evidence basis).
In Elsworthy, which is a decision of the former Workers Compensation Commission on the issue of CRPS, the authorities concerning the identification of pathology, including Kumar and Brennan, were considered. The case predates Grant. Dealing with the specifics of a consequential condition in the nature of CRPS, Arbitrator Egan observed the following:
“I consider the above authorities indicate that I am not required to identify with precision any pathology associated with the consequential conditions claimed by the applicant. Indeed, the identification of ‘pathology’ involved in CRPS appears, on the basis of the evidence and the general experience of this Commission, is a diagnosis of exclusion, and the ‘pathology’ is elusive.”

What State of New South Wales v Bishop [2014] NSWCA 354 makes clear is that the identification of a consequential condition is purely a question of fact, for a Member. The respondent’s argument about pathology, based on Grant, in the medical circumstances of the present case, is difficult to accept. Given the specific requirements of a diagnosis for CRPS (in both the Budapest criteria and the SIRA Guidelines) there is an inherent danger in exceeding jurisdiction in determining the existence of a consequential condition diagnostically. The requirements of CRPS clearly border into the medical, matters that are only appropriate to be assessed by a Medical Assessor as part of a medical dispute.

The circumstances of this case

Here there are competing opinions as to diagnosis, competing records of symptoms and signs, and competing hypotheses as to a cause. There is an evidentiary basis for the conclusion advocated for by the applicant. Whether that evidence gets there on the balance of probabilities is a different question.
The first piece of evidence is factual. The applicant’s statement records that from September 2017, he was experiencing significant pain (in his left knee) and “had begun limping and favoring my right leg while walking”. Mr King then gives a history of his diagnosis by Dr Shetty. He states “During this time, while working and otherwise, I continued limping and putting more weight on my right leg to avoid experiencing pain”.
As discussed above, Dr Shetty’s report of 14 November 2023 records a “significant period of overcompensation”, consistent with the worker’s statement. On 20 August 2023, Dr Shetty records a history of a “spontaneous flare-up” of left leg symptoms which was behaving exactly how his left leg was when his CRPS first developed. In his medicolegal report of 23 January 2025, Dr Shetty refers to medical literature of contralateral CRPS “which sometimes can be spontaneous”. Here, Dr Shetty is referring to the development of the CRPS, not the causal background to it. He is not eliminating from the causal chain any contribution from overcompensation or favouring, he is explaining that symptoms of CRPS can arise spontaneously (as opposed with over a period of time). This is consistent with the history he has recorded and taken from Mr King, and the history in the applicant’s statement.
One confusing aspect of Dr Shetty’s opinion, in his report of 23 January 2025, is his discussion of other opinions. He discusses A/Prof Waller’s report dated 11 June 2024:
“As I have explained in the above questions, Mr King presented on his initial consultation with me showing features of persistent mechanical left knee pain with stronger flavour of central sensitisation of nociception. There were sequelae to Complex regional pain syndrome present in his left leg although currently, it might just miss out on the diagnostic criteria. All these correlates to Dr Waller’s statements.”
In respect of Dr Dias’ report of 19 January 2024, he states “I have no objection regarding Dr Dias’s report”, and in respect of Mr King’s statement, he states “I largely agree with Mr King’s statement”. In circumstances where A/Prof Waller found no CRPS in either leg and rejected the causal connection between the two, it is difficult to understand how those statements could “correlate” to those of Dr Shetty. It cannot be that he accepted the opinion of A/Prof Waller as his opinion is inconsistent with it.
Reading the statement in full, I think the best interpretation is that Mr King had presented to Dr Shetty with CRPS, which had been diagnosed, but at times the symptoms present did not quite meet the criteria (whether it be the Budapest or SIRA criteria). The diagnostic criteria under both tests are rigorous and difficult to achieve, the SIRA Guidelines more so. What is clear, through the reports of Dr Shetty, is that he was treating Mr King as though he had CRPS, first in the left leg and then in the right.
There are some equivalencies with Dr Nazha. Although he did not diagnose CRPS, on 3 August 2022 he provides the following impression:
“I have explained to Richard it will be worthwhile for us to rule out any significant red flags in relation to his knee. His pain does appear to be neuropathic in nature and he does not satisfy the Budapest criteria for CRPS. However, management strategies will likely be essentially similar.”
This was prior to the appearance of symptoms in the right leg, which is the real issue in dispute in this case, although the respondent has raised issue with the diagnosis in the index left leg that has led to the alleged “mirroring”. Dr Nazha proposed to treat Mr King in a way similar to as if he had CRPS. At that time there were certain features present that suggested similar symptomatology, but that did not meet the diagnostic criteria.
Part of the challenge of diagnosis, in this case and in general, is twofold. First is the waxing and waning of symptoms, which one would expect in any injury. Given the stringent diagnostic criteria for CRPS, it is unsurprising that Dr Shetty would note that at certain points and on certain days Mr King did not meet that diagnostic criteria. It is also then unsurprising that the diagnostic criteria may not have been satisfied when Mr King saw A/Prof Waller. The second is the nature of the symptoms present in CRPS. This is best exemplified by the physiotherapy notes which appear in the Application and Reply. This divides the presentation of Mr King into subjective and objective signs. The records vary from date to date. On some occasions they show Mr King’s knee being swollen on a subjective basis (that is, Mr King reported the knee to be swollen at home, but not on presentation). On 3 November 2023, Mr King reports to his physiotherapist that it “changes daily”. On that occasion, it was not warm and had no colour changes, but these symptoms were present when he saw Dr Dias. Dr Shetty, in his report of 23 January 2025, similarly records what he was told by Mr King, including “ongoing autonomic changes in the right leg with episodic swelling, minor colour changes and patchy allodynia.”
In making a determination of whether a worker suffers from a consequential condition, the totality of the evidence must be considered. Here there are competing expert opinions. Those competing opinions record different symptoms on presentation. There are also (somewhat) competing treating opinions, being Dr Shetty, who found CRPS sequelae (at the least) and Dr Nazha, who managed Mr King’s symptoms as though he had CRPS, although specifically ruled out the diagnosis.
The respondent has made submissions on the basis that Mr King did not have CRPS in the left leg, which means that he could not have mirroring in the right leg. There is not dispute about an injury to the left leg. There is no dispute in any s 78 notice that Mr King has suffered CRPS, which is of its nature consequential, in his left leg. This is raised by Dr Waller but has not been the subject of any dispute notice that I can see before me.
A similar situation was considered in Elsworthy. In that case, Arbitrator Egan held:
“Accordingly, I conclude that I do not have jurisdiction to determine the existence or otherwise of CRPS1 and a finding made by me would not bind the AMS in any event.”
A finding that CRPS did not exist in the left limb (not the specific dispute raised before me) would stray into the territory of a Medical Assessor and make a determination binding on them that I was not capable of making. That does not mean that the applicant does not have to prove his case, or simply claim that he has CPRS. There must be medical support for such a conclusion. An absence of any evidence would certainly mean that an applicant would fail.
The present case is not one such hypothetical. The applicant has symptoms of CRPS, confirmed by his treating pain specialist, Dr Shetty. He has consistently complained of those symptoms to his treaters, including his physiotherapist. He has a confirmed diagnosis from his independent medical expert, Dr Dias. There is an abundance of evidence to support the conclusion asserted for by the applicant, that at the first step he has CRPS in his left limb.
On that basis it is not open to me to accept the proposition from the respondent that Mr King does not have CRPS in his left limb, and therefore cannot have CRPS in his right limb.
The respondent’s submissions addressed the report of Dr Dias. The respondent submits that the factual basis for Dr Dias’ opinion is incorrect as Dr Shetty did not make a diagnosis of CRPS. I have dealt with Dr Shetty’s opinion above – whilst it is somewhat confusing, I am satisfied that he has treated Mr King on the basis of a diagnosis of CRPS. Further and in any event, as the applicant submits in response, Dr Dias’ opinion is not solely based on Dr Shetty’s diagnosis. Dr Dias carefully and comprehensively considers the relevant criteria for CRPS and outlines that in his report. His opinion is based on his own medical expertise, experience, and examination findings. It is not a bare ipse dixit and was provided in a fair climate.
Contrary to this, I have some difficulties accepting the opinion of A/Prof Waller. He takes a history of symptoms and treatment in both legs on a very broad basis. Noting, as above, the variability of Mr King’s symptoms on a daily basis, he does not provide a particularly thorough analysis of the history given. He records only complaints of pain, but does not mention any swelling, allodynia, colour change or the like, which has been recorded elsewhere, including in the physiotherapist’s notes.
He states, in respect of both left and right knees, that there are no signs of CRPS. However, he records hypersensitivity to touch in both. At the risk of straying into diagnostic territory, I would note that hyperaesthesia is part of the sensory criteria for diagnosis of CRPS under both the Budapest and SIRA criteria. On a factual basis, A/Prof Waller’s conclusion that Mr King had no symptoms of CRPS cannot be accepted. This undermines A/Prof Waller’s opinion. He has observed at least one criteria on examination, but has dismissed it and concluded that there are no symptoms.
One issue that stands out, although I make no determination on the point, is whether there is a requirement for objective signs to be present on the day of examination for a finding of liability to be made (putting aside the requirements for a diagnosis before a Medical Assessor). Both the Budapest and SIRA criteria require signs to be present on examination, and the reporting of symptoms. Mr King has consistently reported symptoms consistent with CRPS. He has intermittently shown those signs before relevant doctors. That may better explain Dr Shetty’s conclusion that he “might just miss out on the diagnostic criteria”.
The respondent also submits that the medical experts that supported the applicant have not satisfactorily explained how Mr King has developed CRPS in his contralateral limb through mirroring, other than through reference to literature. It is submitted that no attempt has been made to relate the studies to the specific circumstances of Mr King.
I do not accept that is the case. The respondent relies on Roads and Traffic Authority v Royal [2008] HCA 19 and Amaca Pty Ltd v Allis [2010] HCA 5 (at [5]):
“As explained at the commencement of these reasons, there being no direct evidence about what actually caused Mr Cotton's cancer, it was the plaintiff's case that the epidemiological evidence established facts which "positively suggest[ed], that is to say provide[d] a reason ... for thinking it likely" that, in exposing Mr Cotton to respirable asbestos fibres, the negligence of each defendant was a cause of his cancer. To draw an inference about causation from what was established by the epidemiological studies, it would be necessary to decide whether the particular case under consideration should be treated as conforming to the pattern described by the epidemiological studies. Absent evidence which suggests that the individual may stand apart from the ordinary, there may be sufficient reason to assume conformity, but whether or not that is so, it is important to recognise that the first step that must be taken, if an inference is to be drawn from epidemiological studies, is to relate the results of studies of populations to the particular case at hand. That step is not inevitable.”
I am satisfied that the opinions of Drs Shetty and Dias go beyond mere conjecture. There is more than a mere inference here, or the possibility of a risk of injury, there are specific symptoms recorded in Mr King’s right knee, the development of which was largely spontaneous, on the background of overuse of that limb. Both doctors have identified symptoms and not proceeded solely on the basis that the concept exists hypothetically in literature. The reference to the existence of literature in this case (which I note is supported by A/Prof Waller) is to explain how the symptoms now appear in Mr King’s right knee, rather than the other way around.
Accordingly, for the reasons above, I am satisfied of the following, on the balance of probabilities:
(a)    Mr King suffered an injury to his left knee in the course of his employment with the respondent;
(b)    Mr King had CRPS in his left limb, which has not resolved;
(c)    Mr King developed CRPS in his right limb, as a consequence of overuse, through spontaneous mirroring in his right limb, and
(d)    the assessment of the degree of permanent impairment arising from the above, including whether Mr King meets the required diagnostic criteria under the SIRA Guidelines, is a matter for a Medical Assessor.
The matter will therefore be remitted to the President for referral for assessment of the degree of permanent impairment.
Submissions were addressed to the scope of the referral by both parties. The respondent submits the referral should be for the left lower extremity (knee, chronic pain). The applicant submits that that assertion should be rejected, as pain (chronic or otherwise) is not assessable under the Guidelines. I agree with the applicant’s submissions.
The terms of the referral are determined by the nature of the medical dispute between the parties (Skates v Hills Industries Ltd [2021] NSWCA 142 at [46]).
Mr King had a mechanical injury to his left knee. That later developed in CRPS in his left limb, and consequently, in his right limb. The referral should thus be in the following terms:
(a) left lower extremity (knee, complex regional pain syndrome), and
(b) right lower extremity (complex regional pain syndrome).

SUMMARY

I am satisfied that Mr King has suffered a consequential condition in his right leg, being CRPS. The matter will be remitted to the President for referral to a Medical Assessor for an assessment of the degree of permanent impairment.

[2025] NSWPIC 237

29 May 2025