Leek v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Leek v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 228
APPLICANT:	Christine Leek
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	19 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for disputed injury on 27.5.16 to right foot, ankle, knee and consequential lumbar spine; consideration of clinical records and applicant’s statements; consideration of Greater Taree City Council v Moore, Mason v Demasi, Moon v Conmah P/L, and Kooragang Cement Pty Limited v Bates; Held- applicant sustained injury to right foot and ankle on 27.5.16 and consequential lumbar spine condition, onus not discharged in respect of right knee; matter referred to Medical Assessor for assessment of permanent impairment in respect of right lower extremity (ankle) and lumbar spine.
DETERMINATIONS MADE:	1. The applicant sustained injury to her right foot and right ankle as a result of injury on 27 May 2016. 2. The applicant sustained a lumbar spine condition consequential to injury to her right foot and right ankle on 27 May 2016. 3. The applicant has not discharged her onus of proof in respect of injury to her right knee. 4. Matter remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment of the right lower extremity (ankle) and consequential lumbar spine condition as a result of injury on 27 May 2016. 5. The documents to be provided to the Medical Assessor include: i. the Application to Resolve a Dispute dated 9 December 2021 and attached documents; ii. the Reply dated 11 January 2022 and attached documents; iii. the Application to Admit Late Documents dated 4 March 2022 and attached documents, and iv. the Application to Admit Late Documents dated 11 March 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Ms Christine Leek (the applicant) claimed permanent impairment (lump sum) compensation in respect of injuries said to have been sustained in the course of her employment with Coles Supermarkets Australia Pty Ltd (the respondent). The injuries were said to be injury to the right foot, right ankle, right knee and consequential lower back condition resulting from injury on 27 May 2016. The applicant claimed lump sum compensation for injury on 27 May 2016 in respect of permanent impairment of the right lower extremity and the lumbar spine.
In a section 78[1] notice dated 4 August 2021, the respondent disputed liability for the claim for compensation in respect of right lower limb (foot and knee) and consequential lower back, hip and left ankle injuries allegedly arising from a work injury sustained on 27 May 2016. The respondent disputed liability in respect of sections 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act), relevantly with respect to the right ankle, right knee and lower back. The respondent disputed that there was sufficient evidence to support that the initial injury on 27 May 2016 took place. The respondent also disputed that the applicant gave notice of injury pursuant to section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as soon as possible after the alleged injury to the right knee, and (consequential) lower back, hip and left ankle injuries and before she voluntarily left her employment with the respondent. It is noted that the applicant does not allege in these proceedings injury to the hip and left ankle.
[1] Workplace Injury Management and Workers Compensation Act 1998.
In a letter dated 11 January 2022, headed “notice under section 66 of the Workers Compensation Act 1987”, the respondent asserted that there was no permanent impairment arising from the applicant’s injury in respect of the applicant’s section 66 claim for lump sum benefits.

PROCEDURE BEFORE THE 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.
At the conciliation/arbitration conference on 17 March 2022 the applicant was represented by Mr T Carney of counsel, instructed by Ms Stirling, solicitor, and the respondent by Mr Baker of counsel, instructed by Ms Guirguis, solicitor.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 4 March 2022 and attached documents, and
(d)    Application to Admit Late Documents dated 11 March 2022 and attached documents.

Oral Evidence

There was no application to cross-examine the applicant nor to give oral evidence.

The applicant’s statements

The applicant provided three documents, being a statement or correspondence dated 10 June 2016, and statements dated 15 February 2021 and 2 December 2021.
In her document dated 10 June 2016, the applicant said that on 27 May 2016 as she was trying to manoeuvre a laden single layer flat top trolley out of register one it ran into the inner side of her right foot. She said that it hurt a lot but she did not think that she had injured her foot significantly. She stated that she was limping a little for the rest of her shift and throughout the following weekend shifts.
In her statement dated 15 February 2021, the applicant said that in or about 2015 she had mild episodes of lower back pain after moving the wrong way and that this pain was very minor and was treated with Panadol and she did not take time off work and her symptoms had fully resolved before the injury on 27 May 2016. She stated that she did not recall experiencing any pain or restrictions in her right foot, right ankle, or right knee prior to the subject injury.
The applicant stated that on 27 May 2016 she noticed a flatbed trolley incorrectly placed next to the smallest register against the wall and this trolley was carrying boxes of plastic shopping bags which were quite heavy and weighed 12.7 kg and she estimated the trolley to weigh 500 kg in total. She stated that she tried to move the trolley and pulled it with force towards her and as she did so it became caught on the baggage counter causing the right side to swing out and to smash into her right ankle. The applicant stated that her ankle rolled and pulled her right knee outwards. She stated that she immediately began to feel the onset of severe shooting pain in her right ankle, right knee and right foot. She stated that she could barely put any weight on her right leg due to the excruciating pain. The applicant stated that at that time she did not recognise the severity of her injuries. She stated that she hobbled her way through the rest of her shift and notified her manager of the injury at the end of the night. She completed an eight hour shift on the following day despite persisting pain, relying on Panadol and Voltaren to get through the shift. The applicant stated that on 30 May 2016 she woke up with tremendous amounts of pain in her right ankle and up her leg and she was not able to get up and bear weight on her right leg and her right ankle was swollen and tender to touch. On 31 May 2016 she reported the incident to another manager and after discussion with the other manager decided to wait another day to see if her symptoms improved. The following day she again notified the service manager and arrangements were made to consult with the “company doctor”, Dr Bowman. An x-ray of the right foot was arranged and the applicant commenced physiotherapy on 6 June 2016. The applicant said that she did not have much pain relief or improved mobility as a result of this treatment. She stated that during this time she continued to suffer from right foot, ankle and knee pain, especially at night and she found it difficult to sleep and she felt intermittent tingling, and her right leg felt heavy and swollen.
The applicant also stated that during this period she also experienced a lot of difficulty with walking and she was troubled by a stabbing lower back pain caused by her right sided limp. She said that this pain was exacerbated by reaching, stretching or bending. The applicant stated that on 8 July 2016 she told Dr Bowman that she was frustrated with the persisting right ankle, foot and knee pain and the limp. Arrangements were made for an MRI of the right ankle and foot. She was referred to Dr Cadden, whom the applicant consulted on 23 August 2016.
The applicant stated that in or about September 2016 she returned to work on normal duties on reduced hours but she continued to experience a lot of pain at work and she took Panadol so that she could finish her shifts. She stated that at this time she was bullied by management and despite complaints nothing was done and she resigned from the respondent in or about April 2017 out of concern for her safety. The applicant stated that she commenced employment as an assistant in nursing with the Department of Health from about January 2017. She said that her duties in this new role required more mobility than with the respondent, causing a lot of pain in her right ankle, foot, knee and lower back, but for financial reasons felt that she had no choice but to continue. She stated that she continued to experience debilitating pain in her right ankle, foot and knee throughout 2017 and 2018 and that the pain fluctuated and occasionally there would be week-long episodes of excruciating pain. She stated that when she was able to weight bear on her right leg again and walk around she noticed progressive worsening of her right foot, knee and ankle pain and she continued to suffer from lower back pain. Her mother passed away in about February 2017 but the applicant said that she was forced to continue working because of financial reasons.
The applicant stated that in about January 2019 she stopped working with the Department of Health due to the amount of walking and standing that she had to do as a registered nurse. After stopping work, her ankle was still bad and very swollen and throughout 2019 her right ankle was getting progressively worse and did not make any difference how little she walked and rested.
She consulted her new general practitioner, Dr Ernst, on 18 February 2020. She was referred again to Dr Cadden, orthopaedic surgeon, and a podiatrist, Dr Parasher. She commenced consultations with Dr Parasher, her podiatrist, in about mid 2020.
In her statement dated 2 December 2021, the applicant relevantly described increasing severity of lower back pain with radiation into both legs. The applicant described the various restrictions that she had in relation to her lower back.

Dr Cadden

Dr Cadden, orthopaedic foot and ankle surgeon, provided a treating report to Dr Flinn dated 23 August 2016. He recorded a history that on 27 May, while working at Coles, the applicant was pulling a trolley which was heavily loaded with boxes and the trolley then hit her on the medial side of her right foot. He noted that the applicant continued to work the rest of the shift with a limp and she worked over the weekend but had trouble sleeping on the Saturday and Sunday nights and was complaining of tingling pain to the medial foot and pain to the foot. He noted that she was placed on light duties for the following eight weeks with increasing difficulty with work.
Dr Cadden also noted that the applicant also developed increasing pain more to the ankle than the foot. He recorded that the applicant could not remember whether she rolled the ankle at the time of the injury and her main issues now consisted of instability feeling to the ankle. He noted that the applicant had to use a brace but could still fall over and she gets swelling to the ankle towards the end of the day and she is having more issues with the ankle now. He noted a history of swelling and instability and pain could be particularly on the lateral side of the ankle. Recorded no previous injuries to the ankle. He noted that the applicant walks with an antalgic gait, some weakness to ankle eversion when compared to the left, causing pain to the lateral ankle. There was tenderness to the lateral ankle, no tenderness on resisted ankle eversion and no overt swelling of the tendon sheath and mild tenderness along the medial border on the arch of the foot.
Dr Cadden noted initial x-ray of the foot showing no overt fracture to the medial side of the first metatarsal. He noted an MRI is showing no oedema or significant change to the midfoot region and a very mild effusion of the ankle that the ligaments are intact. Dr Cadden noted that the MRI did have the appearance of a reported tear to the brevis tendon as it goes beneath the fibula, although it was unclear if that was the exact cause of her discomfort. He was of the opinion that the applicant “is having an ongoing pain to her right foot and now ankle from a direct force to the medial side of the right foot” and he could not “completely say that the ankle pain may be related to the way that she has been walking due to the forefoot injury. She cannot remember rolling the ankle at the time”. He recommended that the applicant be reviewed by a rehabilitation/pain physician.

Dr Ernst

In a handwritten response to an enquiry dated 15 October 2018 by the Illawarra Shoalhaven Local Health District as to the employment capacity of the applicant as a registered nurse,
Dr Ernst, general medical practitioner, responded to enquiry concerning the applicant’s diagnosis of bereavement, depression, anxiety and post-traumatic stress disorder. Dr Ernst noted that the applicant experiences no major symptoms currently and had recovered sufficiently to resume duties and was having ongoing regular psychological treatment and medication. Dr Ernst did not refer to injury arising from the accident of 27 May 2016.
In a handwritten response dated 25 February 2019 to an enquiry by the Bulli District Hospital as to the employment capacity of the applicant as a registered nurse in respect of a shoulder injury, Dr Ernst provided comments on restrictions in respect of the shoulder injury, and did not refer to the right foot, right ankle, right knee or lower back.
In a report dated 21 June 2019 to “Medical Record Exchange (Zedmed Pty Ltd)”, Dr Ernst referred to treatment for the applicant’s anxiety and depression, and made no reference to the right foot, right ankle, right knee or lower back.
In a clinical record and medical certificate dated 25 February 2020, Dr Ernst stated that he was uncertain as to whether the applicant’s injury was related to the incident on 27 May 2016 and needed expert specialist medical opinion. He referred the applicant to Dr Parasher, podiatrist, and also back to Dr Cadden. While the medical certificate of 25 February 2020 referred to a foot injury, there was also reference to ankle features, and the clinical note of the same date stated the reason for the visit was “ankle pain” with a “very lengthy reassessment – recapitulation of events in 2016”.
In a report to the applicant’s solicitors dated 23 December 2021, Dr Ernst noted that the applicant had seen a former colleague on 30 May 2016 and reported right foot and ankle pain with no mention of any mechanism of injury, possibly related to long shifts and standing as noted by his colleague. Dr Ernst stated that there was no definitive diagnosis in relation to the alleged injury. He noted that a soft tissue injury of the medial border of the right foot was plausible but could not explain the ongoing disability and more proximal projected symptoms in the knee area.

Dr Parasher

Dr Parasher, podiatrist, provided reports dated 26 March 2020 and 9 April 2020.
In his treating report to Dr Ernst dated 26 March 2020, Dr Parasher noted that the applicant presented with a chronic right foot injury sustained in May 2016 when she was working at Coles and sustained a “load accident injury” when a trolley crushed the medial aspect of her right foot and she suffered from acute pain after the incident and offloaded her foot for 24 hours post injury but continued to work for the next 48 hours. He also recorded a history that after the next two days the applicant started to feel increased nerve pain throughout her right foot resulting in severe swelling. He noted that later in 2017 the applicant finished working with the respondent due to bullying and harassment as she struggled during this period after injury. He noted that “her right ankle continued to flare as time progressed with an acute style reaction” and managed her acute pain with medication as best she could. He noted that the applicant developed an antalgic gait pattern over this period which was causing increased right knee and lower back pain which then caused compensatory pain throughout her left lower limb and left knee.
Dr Parasher in that report, and also in his report to Dr Ernst dated 9 April 2020, gave details of his assessment and review of imaging, as well as his opinion in this regard. I accept the applicant’s submission that Dr Parasher is not a medical practitioner and regard should not be had to his assessment and opinion. In my view, there is no detail as to any medical experience or qualifications of Dr Parasher and I prefer the assessments and opinions of the qualified medical practitioners in this matter. I do not accept the respondent’s submissions in relation to the assessment and opinion of Dr Parasher. However, Dr Parasher’s reports are relevant and of probative value in respect of history. In my view, that history recorded worsening right ankle pain over time, the development of an antalgic gait pattern over time, followed by increased right knee and lower back pain.

Clinical records

In evidence were clinical notes and records of FMP Wollongong (also referred to as Family Medical Centre Wollongong), Injury and Occupational Health Services (also referred to as IOH or IOH Services), Figtree Physiotherapy, Chronic Pain Service – Port Kembla Hospital and Coledale Hospital physiotherapy.
The Coledale Hospital outpatient physiotherapy records contained an initial assessment dated 13 December 2021 which noted an impression of deconditioning and weight gain and also pain in the right and left ankles, and right knee and sciatic pain. Also, the subjective history was noted as having worst pain at the right ankle and as a result of compensation and weight gain right knee pain, left ankle pain and lower back pain.
The Port Kembla Hospital Chronic Pain Service contained a treating report of Dr Wallman, rehabilitation physician and pain specialist, to Dr Ernst dated 17 May 2021, noting initial review on 26 April 2021. It was noted that the referral was for the applicant with CRPS after a work injury in 2016 with a heavy object landing on the right foot. A progress note dated 21 June 2021 from Dr Wallman to Dr Ernst noted that the applicant was still on medical leave for her ankles and the applicant had ankle cramping and swelling, although the left or right ankle was not identified.
The Figtree Physiotherapy clinical records contained notes of two consultations, the first commencing on 22 February 2019, in respect of injury and treatment to the right shoulder and right side of neck following a fall at home in November 2018.
I will deal with the clinical records of FMP Wollongong and Injury and Occupational Health Services, where relevant, below. I note that clinical records of FMP Wollongong were attached to the ARD and also to the Application to Admit Late Documents dated 4 March 2022. The former documents did not appear to identify on occasion the treating medical practitioner who recorded the clinical note, whereas the latter documents identified the treating medical practitioner. In submissions, references were made to both sets of documents and I will refer to the identified treating medical practitioner where possible.

Other documents

Submissions were made with respect to the applicant’s letter of resignation from the respondent’s employment dated 10 April 2017. The applicant made no reference to her injuries, nor to bullying and harassment. However, this letter was not directly relevant to issues to be determined and in my view it would be speculative to ascribe any implication from that letter in the face of more than one possible interpretation. In my view there is no probative value in this regard.
Reference was also made to a file note of the respondent headed “liability review” and dated 7 June 2016. That file note expressed doubts as to the manner of injury and accepted provisional liability on the basis of giving the benefit of doubt to the worker as there was no other available evidence to suggest the incident did not occur, that is CCTV footage was not available at the time of making the decision. The CCTV footage was not before me. There was also no evidence referred to in that file note as to the two different versions to which it referred. In my view there was no probative value in this regard.
A report of Ms Ajam, registered psychologist, dated 23 October 2017 detailed mental health issues and made no reference to injury on 27 May 2016 or injuries to the right foot, ankle, knee or consequential lower back condition.

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided medicolegal reports to the applicant’s solicitors dated 19 August 2020 and 1 June 2021.
In his report dated 19 August 2020, Dr Bodel recorded a history of injury on 27 May 2016 when the applicant was doing some tidying up at the end of the day on a Friday and she was putting out grey plastic shopping bags. He noted a history that a box of these weighs 12.7 kg and she was lifting this off the edge of a trolley when suddenly her right foot and ankle let go and she tripped and fell and rolled her ankle. He recorded that the applicant was tangled up in the trolley and she managed to get herself free but was limping because of pain and stiffness in the right knee and right ankle. Dr Bodel recorded that the applicant said that when she got home the foot, ankle and knee were swollen and she tried to work for the next three days but struggled because of pain. He noted eventual return to pre-injury duties on reduced hours of 12 hours per week and seven months later she left because she could not tolerate the pain and reported that there was an allegation of bullying and harassment. Dr Bodel noted subsequent training in aged care and that she passed a pre-employment medical but she found she was struggling because of the ankle and ceased work in 2018.
Dr Bodel also noted that the applicant had lower back pain, right buttock pain and pain in the right thigh. He noted that the lower back pain came on gradually because she was limping on the right side and lower back pain became part of the overall complaint in late 2019.
From the history given by the applicant, Dr Bodel stated that she suffered a twisting injury to the right foot and ankle and the right knee and a consequential injury to the lower part of the back as a result of the accident at work on 27 May 2016. He diagnosed a lateral ligament injury to the region of the right ankle, retropatellar articular cartilage damage in the region of the right knee, and a musculoligamentous injury to the lower part of the back. He was of the opinion that the applicant’s injuries were caused by the accident that occurred at work and the abnormal gait pattern caused the consequential injuries to the hip and the left foot. I note that the applicant’s hip and left foot have not been alleged or relied upon by the applicant in these proceedings.
In his report dated 1 June 2021, Dr Bodel recorded a further history that on 27 May 2016 the applicant was putting out the grey plastic shopping bags, each bag weighing 12.7 kg, and she was lifting off the edge of a trolley when suddenly the trolley hit her right foot and ankle and “let go”. Dr Bodel recorded that the applicant tripped and fell and rolled her ankle and she was tangled up on the trolley and when she managed to get herself free she was limping because of the pain and stiffness in the right ankle and the right foot and the knee. Dr Bodel noted a history of considerable weight gain since injury.
From the history given by the applicant, Dr Bodel stated that the applicant had a trip and fall event at work on 27 May 2016. He diagnosed a lateral ligament injury to the region of the right foot and ankle and a direct blow to the front of the right knee. Dr Bodel was of the opinion that these were frank injuries to the right ankle and consequential injuries to the right knee and left ankle. Dr Bodel did not change his opinion as to the degree of permanent impairment that he assessed in his previous report, which included an assessment of permanent impairment in respect of the applicant’s lumbar spine.

Dr Powell

Dr Powell, orthopaedic surgeon, provided medicolegal reports to the respondent dated 8 February 2021 and 29 December 2021.
In his report dated 8 February 2021, Dr Powell recorded a history of injury to the applicant’s right foot on 27 May 2016 when she was attempting to move a two level flat trolley loaded with boxes containing plastic bags. He noted that the applicant was walking backwards pulling the trolley when it struck the edge of the checkout causing it to swing around impacted the medial aspect of the right foot at the level of the midfoot. He noted that the applicant did not roll the ankle. He noted that the mechanism of injury was a direct blow to the medial border of the foot. Dr Powell noted that the applicant completed her normal shift and the following day presented to the medical centre where she was put off work, referred for x-rays, and commenced physiotherapy which continued for the next 5 ½ months.
Dr Powell noted that the applicant was off work for a week before being cleared to return to work on light duties and reduced hours and subsequently regained full pre-injury duties and hours.
Dr Powell noted treatment by Dr Cadden and a similar history. Dr Powell also noted the applicant’s subsequent employment history and mental health issues. He noted that the applicant said that she was currently certified totally unfit for work for widespread musculoskeletal symptoms including the right foot and ankle, right knee and lower back. He noted current symptoms involving the right foot and ankle, steadily worsening over the past few years and similar symptoms on the contralateral side and also pain involving the right knee and lower back. Dr Powell noted that the applicant reported her mobility was reduced and she had difficulty with sloping or uneven ground and subjective instability with respect to her foot. On examination, Dr Powell noted the applicant had an unusual gait with a marked antalgic component and reduced stance on the right side.
Dr Powell stated that he made no definitive diagnosis in relation to the applicant’s right foot and ankle condition as in his view the mechanism of injury described was sufficient to have caused a soft tissue injury on the medial aspect of the right foot but was unlikely to have been the cause of the tendinopathy identified in the MRI scans. He noted that the mechanism of injury described by the applicant and confirmed in her diagram, a copy of which was not before me, was not consistent with the history recorded by Dr Bodel.
Dr Powell stated that he could find no evidence that the applicant sustained a lateral ligament injury or any injury to the right knee as a result of this accident. He could not explain the applicant’s current presentation on the basis of any organic pathology sustained in the manner described in the workplace incident on 27 May 2016. He was of the view that there was a significant psychosomatic component to the applicant’s condition with a history of concurrent mental health issues.
In his report dated 29 December 2021, Dr Powell noted a history that the applicant was pulling a loaded trolley around the checkout when the tray struck the dorsomedial aspect of the midfoot, which represented a direct blow. He noted that there was no twisting component and the applicant did not fall. Dr Powell noted the applicant’s reports of persisting right foot and ankle symptoms, as well as the development of symptoms involving the contralateral foot and ankle, right knee and lower back. He noted the insidious onset of bilateral knee symptoms in February 2020, more marked on the right side. Dr Powell also noted intermittent lower back pain prior to the workplace injury the applicant believed that this has slowly worsened. Dr Powell noted symptoms occur every few days, aggravated by walking. He noted continuing complaint of intermittent pain in relation to the right foot and ankle in the lateral and posterolateral aspect, aggravated by walking and standing.
Dr Powell was of the opinion that the right knee and lower back symptoms developed much later than the incident on 27 May 2016 and are not related to the applicant’s employment either directly or consequentially. He was also of the opinion that there was no injury to the right ankle or right knee in the incident of 27 May 2016. Dr Powell was of the opinion that any injury to the right foot was soft tissue in nature and had settled long ago. He was of the opinion that the cause of the applicant’s lower back condition was unknown and there was no evidence that they are the result of any injury sustained in the course of employment with the respondent, either directly or consequentially.

FINDINGS AND REASONS

The issues to be determined, for the purpose of the applicant’s section 66 claim, are whether the applicant sustained injury to her right ankle and right knee as a result of the alleged incident on 27 May 2016 and whether the applicant sustained a lower back condition consequential to alleged injury to the right ankle and right knee as a result of the alleged incident on 27 May 2016.
To the extent that the section 78 notice disputed that an incident took place on 27 May 2016, the clinical records noted below in my view support the applicant’s statements that an incident did take place on that date. For the reasons given below, I am satisfied on the balance of probabilities that on 27 May 2016 the applicant sustained injury to her right foot and ankle when she was struck on the right foot by a trolley, and the applicant rolled or twisted her ankle. A physiotherapy management plan dated 6 June 2016, noted below, recorded a weight of 150 kg in respect of the trolley, rather than the 500 kg stated, in my view mistakenly, by the applicant. However, in my view the discrepancy is not significant and, in any event, even at a weight of 150 kg the weight of the trolley was still significant.
The respondent submitted that the applicant’s statements, particularly those of 15 February 2021 and 2 December 2021, were unreliable and inconsistent with relevant medical records. The respondent made detailed submissions identifying various medical records in support of its submissions regarding the applicant’s unreliability and inconsistency in respect of her statements and the history provided to doctors, including Dr Bodel.
In particular, matters referred to by the respondent were said to be the applicant’s inconsistent statements as to weight gain following the injury, her letter of resignation from the employ of the respondent, inconsistent statement as to care arrangements for her father and her deceased mother, inconsistent statements to the subject alleged injuries having regard to histories taken in respect of later unrelated injuries and later employment, in addition to inconsistencies in relation to recorded later symptoms and capacity for work. The respondent also pointed to the applicant’s statement as to a consequential left ankle condition, a condition which was not relied upon by the applicant in these proceedings. I do not accept these submissions. I accept the applicant’s submission that these matters are not directly relevant to the issues to be determined, which are limited to injury[2] and consequential condition. Insofar as these matters may go to the reliability of the applicant’s statements as to injury and consequential condition, I will exercise caution in the weight to be given to the applicant’s evidence as to injury and consequential condition, in considering also evidence closer to the time of the incident and later consequential condition.
[2] Greater Taree City Council v Moore [2010] NSWWCCPD 49.
Where the subsequently recorded clinical history can only be relevant to the issue of credit or the reliability of the applicant’s evidence, the caution urged in Mason v Demasi[3] in the treatment of inconsistency between the applicant’s statements and the clinical records has particular applicability in this case. In my view, the inconsistencies submitted by the respondent do not detract from the applicant’s credit with respect to her evidence as to what was said to have happened on 27 May 2016 in respect of injury to the right foot and right ankle. The respondent suggested that there was later “re-invention” in her statements as to events in the past. This is a matter that should be weighed and considered on the available evidence as to what happened on 27 May 2016 and the later onset of the alleged lower back condition.
[3] [2009] NSWCA 227.
In my view, the question of the applicant’s reliability in relation to her account of events or symptoms or treatment in the years following what was said to have occurred on 27 May 2016 is not necessarily determinative of whether or not her account of injury on 27 May 2016 is reliable or should be accepted. The respondent’s detailed references to later injuries or conditions, treatment and capacity for work, in my view can also be regarded as indicating a context for a lack of recorded reference to the right ankle from about October 2016 until about August 2018, and no specific reference to the right knee until about March 2020. The context was that the applicant suffered bereavement in relation to the death of her mother in 2017, and was living with her elderly father, and suffered frequent anxiety and depression with treatment, and later unrelated injuries to other parts of her body. This was a subsequent personal and medical history of some complexity.
It appeared that the applicant had some difficulty in providing clear expression of her situation within the not unlimited time available in the clinical medical setting. As was noted by Dr Ernst in a clinical note dated 7 December 2020:
“ …long consult…very convoluted history of various injuries…I had to work on other doctor's evidence and scatchy reports/evidence…chronicity of knee/back and ankle problems makes the prognosis overall very guarded…her A&D is certainly influencing her capacity to cope with those injuries/aches & pains…”
“A & D”, in my view, is a reference to anxiety and depression, a history which is documented over time in the clinical records.
The applicant’s statement or correspondence dated 10 June 2016 was brief. It was not addressed to any person. It indicated that an incident happened on 27 May 2016 at register 1 when she was struck on the inside of the right foot by a trolley and that it hurt a lot. She did not think it was a significant injury and limped a little for the rest of the shift and throughout her weekend shifts. However, there are clinical records for attendances on medical practitioners which are significant in providing more detail. In my view, it is important to consider that evidence, together with the applicant’s statements, including that of 10 June 2016.
In relation to the right ankle, the clinical note of Dr Craig Thompson of 30 May 2016 noted, among other issues, right foot and ankle pains, and in this regard the applicant was tender all over and there was a mild effusion. No injury was recorded in this regard and the note pointed towards possible overuse as a result of standing on long shifts. Dr Thompson issued a plain medical certificate, that is not a WorkCover or SIRA medical certificate, dated 30 May 2016 certifying that the applicant had a medical condition and was unfit for work from 30 May 2016 to 5 June 2016, although the condition was not specified. On the next day, that is on 31 May 2016, the clinical note of Dr Flinn recorded an undated incident at Coles in which the applicant was struck on the medial side of the right foot, with acute pain, by a large loaded trolley. Dr Flinn noted a history of worsening pain and difficulty with weight bearing and issued a SIRA Certificate of Capacity on the same day for injury to the right foot on 27 May 2016 with some capacity for employment from 31 May 2016 to 3 June 2016, being minimal standing tolerance and avoiding weight-bearing for any significant period and using crutches when ambulating any significant distance. A physiotherapy note of IOH Physiotherapy dated 6 June 2016 noted a history of a flat top trolley running into the applicant’s right foot 10 days previously and she had some pain and worked on the next two days, following which she could not weight bear. Another physiotherapy note dated 8 June 2016 recorded that the applicant was walking with an increased limp. A physiotherapy management plan of Leah Nati dated 1 July 2016 noted the applicant had a severe limp on first consultation on 6 June 2016 and a current measure of a slight limp, although it was noted that the applicant continued to report high pain levels and her foot was sensitive to touch, requiring further investigation.
On 8 July 2016, Dr Flinn noted continuing pain and poor gait and no ankle pain. However, on 19 July 2016 Dr Thompson recorded that the applicant’s right ankle was now “under WC through injury” and “tendon split and due to see Cadden”.
In his report dated 23 August 2016, Dr Cadden noted a history of the incident on 27 May 2016 which the applicant was hit on the medial side of her right foot by a heavily laden trolley and she continued to work the rest of the shift with a limp. He noted pain in the foot and development of increasing pain more to the ankle and the foot, but noted that the applicant could not recall whether she rolled her ankle at the time. He noted complaints of swelling and pain on the lateral side of the ankle and instability in the ankle and the development of increasing pain more to the ankle than the foot. Dr Cadden was of the opinion that the applicant had ongoing pain to the right foot and now ankle from a direct force to the medial side of the right foot, although he could not “completely say” that the ankle pain may be related to the way that she had been walking due to the foot injury.
A clinical note dated 16 August 2018 recorded acute ankle pain and a past work injury with tenderness and pain. In the absence of any prior history of other work-related injury to the applicant’s ankle, I accept that this reference was to injury to the applicant’s right ankle and that reference to a past work injury was to the incident on 27 May 2016.
The applicant’s statement dated 10 June 2016 was broadly consistent with the history recorded by Dr Flinn and in the physiotherapy notes described above. In my view, the injury description provided by the applicant in her statement of 10 June 2016, that is of being struck on the inside of the right foot by the flat top trolley, was not inconsistent with injury to her right ankle at the same time. The first clinical record on 30 May 2016 referred to ankle pain, although not with reference to a specific injury, and the clinical record and Certificate of Capacity of 31 May 2016 described the incident, without reference to ankle pain, and these and later records noted the difficulties with weight bearing, poor gait and limping. Ankle pain or injury was noted on 15 July 2016, 19 July 2016, 12 August 2016, a continuation of pain (unspecified) on 9 September 2016, but an absence of ankle pain on 5 July 2016 and pain free for the previous 1.5 weeks on 23 September 2016. A physiotherapy note dated 28 July 2016 reported that the applicant still had a lot of pain and was concerned about her ankle’s lack of improvement.

The respondent submitted that the applicant’s statements contained florid descriptions of ongoing and intrusive pain which were incongruous having regard to her nursing employment and working in two jobs for a short period in early 2017 prior to ceasing employment with the respondent. I do not accept these submissions. Whilst it is possible that the applicant may have overstated the extent of her pain with the passage of years, I am satisfied that the applicant did sustain significant, if variable, pain in respect of her right ankle and foot following the incident of 27 May 2016 and in her lower back at a later time. The clinical records confirm right ankle and right foot pain following the incident of 27 May 2016 and also lower back pain, noted in 2018 and increasing in 2019.
The respondent submitted that the report of 21 February 2020 of an ultrasound of the applicant’s right ankle provided no history as to any injury arising from May 2016, and it was also significant in that it referred to pain on the lateral side, as distinct from injury to the medial aspect of the applicant’s foot. I do not accept these submissions. In my view, for the above reasons, particular caution should be adopted in respect of the history contained in the ultrasound report, and in any event it does not assist in the issue at hand, which is the determination of whether there was an injury to the right ankle on 27 May 2016. Further, in my view, the meaning and interpretation of this report with respect to anatomical matters, even if stated in terms of a history, are a matter for expert comment and opinion. I was not taken to specific expert comment or opinion in this regard.
The applicant’s statement of 15 February 2021 described being struck on the right ankle by the trolley on 27 May 2016 and her ankle rolled and pulled her right knee outwards.
Dr Cadden recorded in his report of 23 August 2016 that the applicant could not remember rolling her ankle at the time. In my view, when viewed as a whole the clinical records noted above on the balance of probabilities support the applicant’s statement of 15 February 2021 that she rolled her right ankle in the incident on 27 May 2016, notwithstanding her absence of recollection on the occasion of her consultation with Dr Cadden on 23 August 2016 and an absence of a specific incident recorded in the initial clinical record of 30 May 2016 in which the right ankle was specifically recorded. As noted above, I exercise caution when considering these clinical records. They were not complied for a forensic medicolegal purpose. The clinical records, including treating reports, were a short summary in which it was not necessary to identify the question and answer process, nor the applicant’s understanding of that process. I also exercise some caution when considering the applicant’s evidence in light of the complex history noted above. In my view, on balance I accept the applicant’s evidence that she sustained a twisting or rolling injury to the right ankle on 27 May 2016, as described by Dr Bodel.
The uncertainty of Dr Ernst in respect of his opinion as to causation is in my view of little weight in the determination of this matter. He deferred to expert opinion, in my view understandably. He commenced to provide treatment to the applicant at a time well after the injury of 27 May 2016, and hence is of limited weight in the determination of whether or not the applicant sustained injury on 27 May 2016 and consequential lower back condition thereafter. His responses to work capacity enquiries by later employers were specifically directed to psychological and shoulder issues. I adopt the same caution in considering these records with respect to the applicant’s consistency and reliability as noted above and I do not place weight on an absence of reference to the applicant’s right foot, ankle, knee and consequential lower back condition. In my view, the same reasoning and weight applies to the report of Ms Ajam dated 23 October 2017.
The respondent submitted that on the history provided to Dr Bodel there was not a fair climate for his opinion. I do not accept this submission. Dr Bodel had regard to the letters or reports of Dr Cadden, although he did not refer to specific dates. These documents were contained in the Application and other documents. Dr Bodel also had regard to clinical records of the FMP Medical Centre and IOH. Insofar as Dr Bodel recorded a twist and fall injury on 27 May 2016, in my view there is a distinction between the clinical records relating to the right foot and ankle, and consequential lower back condition, and the records as they relate to the right knee, which will be dealt with below. Dr Bodel noted the applicant’s right foot and ankle were struck by the trolley and “let go”, following which she fell. Dr Bodel described these as twisting injuries to the right foot, ankle and knee and that the applicant sustained a direct blow to the knee. In my view, the history recorded by Dr Bodel, that the applicant tripped and fell and rolled her ankle, should be considered having regard to his description that the trolley hit her right foot and ankle and “let go”. This is consistent with rolling the ankle on being struck, rather than as following or part of a fall. Whilst I do not find that there was a fall, I have found on the balance of probabilities that the applicant rolled or twisted her ankle on 27 May 2016. This in my view is a fair climate for Dr Bodel’s opinion in relation to the right ankle and the consequential back condition. Additionally, the clinical records, the reports of Dr Parasher, and indeed the applicant herself in her statements, when read as a whole, point to the difficulties the applicant sustained with her right ankle injury in respect of pain and limping. The applicant said that she had lower back pain caused by her right sided limp. She described her difficulties with walking as feeling like her right ankle was very unstable and could give way at any time, and she lost confidence with walking and navigating stairs. Dr Cadden also noted antalgic gait in the context of increasing right ankle pain.
I prefer the opinion of Dr Bodel in respect of injury to the applicant’s right ankle. He took a history of injury in which the applicant rolled or twisted her ankle, which in my view was a description of the same circumstance of injury. Dr Powell recorded that the applicant did not roll her ankle. It was not clear from his reports whether this was a history he recorded from the applicant or from unidentified documents and the letter of introduction to which he did refer. In any event, I have accepted that the applicant did roll her ankle on 27 May 2016.
I accept the opinion of Dr Bodel that the applicant suffered a frank lateral ligament injury to the region of the right foot and ankle, caused by the injury of 27 May 2016. Dr Bodel noted that there was no indication of aggravation of any pre-existing disease process and was of the opinion that employment was the main contributing factor to the ongoing complaints.
I find that the applicant sustained injury pursuant to section 4(a) of the 1987 Act to her right foot and right ankle on 27 May 2016. I am satisfied that the applicant’s employment was a substantial contributing factor to the injury to her right ankle, as required by section 9A of the 1987 Act.
In relation to the right knee, the difficulty is that, unlike the right ankle, there are no clinical records that identify right knee symptoms or difficulties until the report of Dr Parasher of 26 March 2020, a period of more than three years after the subject incident. Although the clinical records after the incident of 27 May 2016 described difficulties with poor gait, limping and weight-bearing, and the use crutches with ambulation initially, this was in the context of the recorded difficulties with her right foot and right ankle as I have noted above. Dr Parasher in his report of March 2020 noted the applicant’s right knee symptoms in the context of her antalgic gait pattern. Dr Bodel in his reports recorded a direct blow to the front of the right knee as a result of the incident of 27 May 2016.
In my view, the applicant’s statement of 15 February 2021 with respect to her right knee, in which she described that her right knee was pulled outwards by the incident of 27 May 2016, is not supported by clinical records. Similarly, the history recorded by Dr Bodel in relation to the applicant’s right knee is also not supported by clinical records, and notes a different mechanism of injury, that is a direct blow to the knee when the applicant tripped and fell. Given the substantial length of time from the incident of 27 May 2016 until the earliest record of symptoms in March 2020, with the later history of injury to the right knee being given by the applicant at variance between the history recorded by Dr Bodel and her statement dated 15 February 2021, and the caution I adopt in respect of the applicant’s statements, I am not satisfied that the applicant has discharged the onus of proof in relation to injury to the right knee on 27 May 2016.
In relation to the alleged consequential lumbar spine condition, it is necessary to determine whether the symptoms and restrictions in the applicant’s lumbar spine have resulted from her right foot and ankle injury[4], applying a common sense evaluation of the causal chain[5]. The clinical note of FMP Wollongong dated 29 February 2016 noted low back pain and a history of “hurt back early last year”, tingling sensations on and off and on examination slight tenderness over the L5 area. The next clinical note was on 30 May 2016, where back pain radiating to the right leg was recorded, among other matters, including right foot and ankle pains. On 26 October 2016, a clinical note recorded muscular lower back pain with “posture and lifting excessively” and in August 2017 low back pain was noted as recurrent, with no description of any related activity. Clinical notes recorded in January 2018 muscular benign backache, which was much improved in February 2018. In June 2019 back pain was noted in relation to “moved awkwardly and lumbago ensued”. As I have noted above, the applicant was recorded as walking with a limp and with difficulty with weight bearing following the injury on 27 May 2016, although there these difficulties were not further recorded until the report of Dr Parasher in March 2020. In that report, Dr Parasher noted continuing right ankle pain, and development of an antalgic gait pattern causing lower back pain.
[4] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at 45.
[5] Moon at [47]; Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
This history, in my view, is broadly supportive of the applicant’s statement of 15 February 2021 that following the incident of 27 May 2016 she experienced a lot of difficulty with walking and she was troubled by lower back pain caused by her right sided limp. This is consistent with a worsening of lower back symptoms over time following the incident of 27 May 2016, as recorded by Dr Parasher. There was no evidence before me to suggest that the applicant had a significant or continuing lower back condition prior to 27 May 2016, notwithstanding the single clinical note referred to above. The applicant’s statements and the above notes are also consistent with the history recorded by Dr Bodel in his report of 19 August 2020 that the lower back pain came on gradually because the applicant was limping on the right side and became part of the overall complaint in late 2019.
I do not prefer the opinion of Dr Powell in relation to the applicant’s lower back condition. In his report of 8 February 2021, Dr Powell recorded complaints of pain involving the lower back, but he did not have regard to these complaints with respect to the complaints that he also recorded separately in his report with respect to difficulty with walking and with limping. Dr Powell recorded the same history in his report of 29 December 2021, and he was of the opinion that the cause of the applicant’s lower back condition was unknown and there was no evidence to suggest that it was the result of injury sustained in the course of her employment, directly or consequentially. Dr Powell did not consider, in relation to the lower back, the applicant’s evidence in the history he recorded that she had difficulty with sloping or uneven ground and she walked with a limp and on his examination the applicant had an antalgic gait. Additionally, the opinion of Dr Powell was also in my view ambiguous, as it appeared to address injury to the lower back rather than whether the lower back condition, that is pain, symptoms and restrictions, resulted from the injury to the applicant’s right foot and right ankle of 27 May 2016, notwithstanding that he used the word “consequential” ambiguously with respect to “injury”.
I prefer the opinion of Dr Bodel in relation to the applicant’s lower back condition. He recorded a history consistent with the applicant’s statement that the lower back pain came on gradually because she was limping on the right side and that she had sustained a consequential injury to the lower part of her back as a result of the accident on 27 May 2016. Dr Bodel diagnosed musculoligamentous injury to the lower part of the back. In my view, this supports a common sense view of the chain of causation that the applicant sustained injury to her right foot and right ankle on 27 May 2016, resulting in a limp and the development over time of lower back pain and symptoms and restrictions.
I find that the applicant sustained a lower back condition consequential to the injury to her right foot and right ankle on 27 May 2016.
In relation to the dispute as to notice of injury, as I understood it the respondent did not press a dispute in relation to the consequential lower back condition, nor was there an issue in respect of notice for the right ankle injury. Although in submissions the respondent noted that the applicant did not give notice in respect of her right ankle, this submission was in the context of the reliability of the applicant’s statement that she did give such notice at the relevant time. The section 78 notice dated 4 August 2021 did not dispute notice of injury in respect of the right ankle.

[2022] NSWPIC 228

19 May 2022