Li v Fusun International Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Li v Fusun International Pty Ltd [2023] NSWPIC 523
APPLICANT:	Tchum Qui Li
RESPONDENT:	Fusun International Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	4 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment; injury to the right ankle and right hindfoot disputed under section 4(a); consequential condition of the right knee disputed; contemporaneous evidence; histories in clinical records; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Department of Aging, Disability and Home Care v Findlay, Davis v Council of the City of Wagga Wagga, Mason v Demasi; and Munce v Thomson Cool Rooms Pty Ltd considered and applied; Held – the applicant suffered fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot (the dorsum of the foot) arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of section 4(a) and section 9A; the applicant suffered a consequential condition to his right ankle as a result of the injuries to his right foot in the course of his employment with the respondent on 10 June 2016; the applicant did not suffer injuries to the right hindfoot, right ankle and right knee arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of section 4(a) and section 9A; the applicant did not suffer a consequential condition to his right knee as a result of the injuries to his right foot referred in the course of his employment with the respondent on 10 June 2016; right lower extremity (fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot - the dorsum of the foot and the right ankle) remitted to the President for referral to a Medical Assessor for an assessment of whole person impairment; the respondent is to pay the applicant’s reasonably necessary medical and related expenses in respect of the injuries to his first, second, third and fourth distal phalanges of the right foot and the injury to his right forefoot and right ankle as a result of injury on 10 June 2016 under section 60 on the production of accounts, receipts and/or Medicare notice of charge.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot (the dorsum of the foot) arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant suffered a consequential condition to his right ankle as a result of the injuries to his right foot referred to in [1] above in the course of his employment with the respondent on 10 June 2016. 3. The applicant did not suffer injuries to the right hindfoot, right ankle and right knee arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 4. The applicant did not suffer a consequential condition to his right knee as a result of the injuries to his right foot referred to in [1] above in the course of his employment with the respondent on 10 June 2016. The Commission orders: 5. Award for the respondent in respect of the claimed injuries to the right hindfoot, right ankle and right knee arising out of or in the course of the applicant’s employment with the respondent on 10 June 2016 under ss 4(a) and 9A of the Workers Compensation Act 1987. 6. Award for the respondent in respect of the claimed consequential condition to the applicant’s right knee as a result of the injuries to his first, second, third and fourth distal phalanges of the right foot and the injury to his right forefoot (the dorsum of the foot) in the course of his employment with the respondent on 10 June 2016. 7. The respondent is to pay the applicant’s reasonably necessary medical and related expenses in respect of the injuries to his first, second, third and fourth distal phalanges of the right foot and the injury to his right forefoot (the dorsum of the foot) and right ankle as a result of injury on 10 June 2016 under s 60 of the Workers Compensation Act 1987 on the production of accounts, receipts and/or Medicare notice of charge. 8. The matter is remitted to the President for referral to a Medical Assessor under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 10 June 2016 – personal injury; (b) body systems: right lower extremity (fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot – the dorsum of the foot and the right ankle), and (c) method of assessment: whole person impairment. 9. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 8 May 2023 and attached documents; (b) Reply to Application to Resolve a Dispute dated 30 May 2023 and attached documents; (c) Application to Admit Late Documents lodged by the applicant dated 8 June 2023 and attached documents, and (d) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Tchum Qui Li, is a 61-year-old man who was employed by the respondent, Fusun International Pty Limited (Fusun), as a process worker and forklift driver. Fusun also traded under the name New Steel Solutions.
On 10 June 2016, Mr Li alleged that a co-worker accidentally released a 15m long metal pole from a forklift, which fell onto his right foot causing him to suffer injury to his right foot and right knee. He alleged that the right knee was injured when the co-worker attempted to free his right foot that had been stuck under the pole. Mr Li further alleged that, as a result of the injury to the right foot, he has walked with an altered gait over the years and suffered falls due to the weakened condition of his right foot causing a consequential injury to his right knee.
Mr Li lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 13 June 2017, AAI Limited t/as GIO (GIO), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury to the right knee within the meaning of ss 4 and 9A of the 1987 Act and in the alternative, that any injury to the right knee had resolved; denying an entitlement to weekly benefits in respect of the alleged right knee injury under s 33 of the 1987 Act; and denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of s 60 of the 1987 Act.[1]
[1] Reply at pages 4-6.
On 20 November 2018, Mr Li requested a review of the decision contained in GIO’s dispute notice dated 13 June 2017 under s 287A of the 1998 Act.
On 4 January 2019, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability in respect of the alleged right knee injury but omitting its alternative position that any injury to the right knee had resolved.[2]
[2] Reply at pages 7-10.
On an unspecified date, Mr Li requested another review of the decision contained in GIO’s dispute notice dated 13 June 2017 under s 287A of the 1998 Act.
On 3 July 2019, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability in respect of the alleged right knee injury.[3]
[3] Reply at pages 11-14.
On 25 March 2021, Mr Li, through his lawyers, claimed permanent impairment compensation under s 66 of the 1987 Act in respect of the right lower extremity and scarring.[4]
[4] Application to Resolve a Dispute at pages 9-10.
On 20 July 2021, GIO issued a dispute notice under s 78 of the 1998 Act denying an entitlement to lump sum compensation under s 66 of the 1987 Act and denying injury to the right ankle, right hind foot and right knee and noting that injury to the right forefoot and lumbar spine was accepted.[5]
[5] Reply at pages 15-19.
Mr Li, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 8 May 2023 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act and permanent impairment compensation under s 66 of the 1987 Act as a result of the injury sustained in the course of employment with Fusun on 10 June 2016.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Li suffered an injury to his right hindfoot, right ankle and right knee on 10 June 2016 within the meaning of ss 4(a) and 9A of the 1987 Act;
(b) whether Mr Li suffered a consequential condition to his right knee as a result of the accepted right forefoot injury and the alleged right hindfoot and right ankle injuries on 10 June 2016;
(c) Mr Li’s entitlement to medical and related treatment expenses under s 60 of the 1987 Act as claimed, and
(d) Mr Li’s entitlement to lump sum compensation under s 66 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises. Mr Ross Stanton of counsel appeared for Mr Li, instructed by Mr John Matthews, solicitor and Mr Fraser Doak of counsel appeared for Fusun, instructed by Ms Alexandra McCaffrey, solicitor. Ms Qinq Yao, Mandarin interpreter was also present to assist Mr Li.
During the conciliation phase the parties agreed that there be a general order for expenses under s 60 of the 1987 Act in respect of the injuries found to be causally related.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 8 May 2023 and attached documents;
(b)    Reply to ARD (Reply) dated 30 May 2023 and attached documents, and
(c)    Application to Admit Late Documents (AALD) lodged by Mr Li dated 8 June 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Tchum Qui Li’s evidence

In evidence there is a statement by Mr Li dated 9 May 2023. I will now refer to the relevant parts of that statement.
Mr Li stated that, prior to 10 June 2016, he did not have any known pre-existing conditions or injuries to his right knee, right foot, right ankle or lower back.
Mr Li stated that in about May 2016, he commenced full-time employment with Fusun as a process worker and forklift driver.
Mr Li stated that, on 10 June 2016 at about 2.30pm, he was called to assist his boss who was trying to transport a bundle of heavy metal poles, measuring about 15m in length as well as a bundle of metal plates on a forklift. The boss was operating the forklift and instructed him to hold the heavy metal poles and plates because they were unsteady in the tynes of the forklift. The bundle was at about chest height. The boss accidentally pressed the wrong button on the forklift and the heavy metal products dropped from chest height directly onto Mr Li’s right foot. He was wearing steel capped safety boots at the time. He felt immediate pain in his right foot and toes. He fell backwards and screamed in pain. He tried to pull his foot away from the heavy metal bundle and experienced pain, discomfort and stiffness in his right knee.
Mr Li stated that he was carried and moved to a chair by two work colleagues. Once he was able to do so, he left work and managed to drive himself home using, predominantly, his left foot. He only lived about six to seven minutes away from work. When he got home, he experienced very painful symptoms. He felt acute numbness, bruising and something that felt like an electric shock in his right foot.
Mr Li stated that, on arriving home, his wife drove him to Fairfield Hospital. When he arrived at the hospital, he was feeling very emotional and suffering from acute pain in his right foot. He also noticed pain in his right knee. He underwent an X-ray of his right foot which revealed fractures in his right foot and in four of his toes. He did not have the assistance of an interpreter at the hospital. He was discharged from hospital on 10 June 2016 at about 6.00pm with his right foot in a walking boot to make sure that he did not bear weight on it.
Mr Li stated that, on 11 June 2016, he consulted Dr Loi Lam, general practitioner, at Bonnyrigg Family Medical Centre. Dr Lam prescribed him pain relieving medication. When he consults Dr Lam, he does not require an interpreter because Dr Lam speaks Mandarin.
Mr Li stated that he used a walking boot on his right foot and crutches for about a year. Dr Lam advised him to start doing some exercises to get strength in his right leg as it had become weaker with the use of a walking boot and crutches. He then used one crutch for about a year after that. Dr Lam advised him to use only one crutch or the walking boot and start walking at home or do some home-based exercises.
Mr Li stated that he was able to take off the walking boot whilst at home and used his hands for support on walls when walking around the house. When he walked, he would bear weight on his left side so as not to aggravate his right foot injury.
Mr Li stated that, after he stopped using crutches, he relied on a walking stick for about a year, which he only used outside his home. Inside the home he continued to rely on the walls for support as he moved around the house.
Mr Li stated that he used to do some home-based exercises to strengthen his right foot. Whenever he did so, he used to fall on his right knee. On one occasion he was doing squats and after two squats, fell down on his side and felt acute pain in his right knee. These types of falls happened numerous times whilst doing home-based exercises and when he was walking with a walking boot and crutches. He often fell down on his right side.
Mr Li stated that, in about April 2017, whilst trying to walk in his home using his hands on the walls for support, his right knee suddenly gave way and he injured his right ankle and right knee. He also injured his lower back when he landed on the right side of his lower back.
Mr Li stated that, on another occasion whilst walking with the assistance of his walking boot and crutches on the lawn at home near the concrete driveway, his right knee gave way again. He fell on the driveway and injured his right foot and lower back. He observed scratches and bruising on his right knee.
Mr Li stated that, in about July 2017, he was referred to Dr Ray Chin, orthopaedic surgeon. When he consulted Dr Chin, his wife would interpret for him and when there was a form to be completed, Dr Chin would arrange for a Mandarin speaking interpreter.
Mr Li stated that, due to his injuries, he was limping and that the limping worsened his right knee symptoms at times.
Mr Li referred to Dr Lam’s report dated 26 May 2017. He stated that Dr Lam was wrong when he reported that Mr Li had to jump and bend or twist his right knee at the time of the accident on 10 June 2016.
Mr Li stated that, in about February 2018, Dr Chin first recommended he undergo a right total knee replacement. He accepted Dr Chin’s recommendation in about June 2018 and was placed on a hospital waiting list.
Mr Li stated that, between 2017 and 2020, he underwent physiotherapy, hydrotherapy, a gym-based exercise program, cortisone injections to his lower back and right knee, which were paid by GIO. He also performed home exercises, applied topical ointments, heat packs and cold packs. Such treatment provided little improvement.
Mr Li stated that, on 9 March 2020, he underwent a right total knee replacement at Fairfield Hospital. He was discharged from hospital on 11 March 2020.
Mr Li stated that he had also consulted Dr James Yu, pain medicine specialist, Dr Roderick Kuo, orthopaedic surgeon and Dr Neil Griffith, neurologist, for his injuries. Mrs Li interpreted during these consultations.
Mr Li provided a detailed list of his ongoing symptoms and restrictions since the accident on 10 June 2016.[6] The list included pain in the right foot with occasional pins and needles and numbness; pain in the toes of the right foot with occasional pins and needles and numbness; pain in the right ankle with occasional pins and needles and numbness; and the right knee constantly giving way.
[6] ARD at page 5 at [40].
In respect of his current condition, Mr Li stated that he continues to suffer pain in his right foot, right ankle and right knee. The right knee has improved a lot since his total right knee replacement surgery. The right knee no longer gives way and he has not experienced any falls since the surgery. Pain affects his sleep. He has difficulty walking, standing, sitting and driving for extended periods of time. He struggles ascending and descending stairs. He avoids walking on uneven surfaces. He continues to rely on medication including Panadeine Forte, Endep and Lyrica for the management of his pain. He continues to consult his general practitioner on an as-needed basis. He continues to perform home exercises on a daily basis. He continues to be overly emotional and moody.

Notification of injury form

In evidence, there is a notification of injury/illness form dated 14 June 2016 that was signed by Mr Vincent Zou on behalf of Fusun in respect of the subject accident.[7]
[7] Reply at pages 1-3.
The form recorded the date of injury as 10 June 2016.
The nature of Mr Li’s injury was described as follows:
“Fracture right distal phalanx – 1 - 4 Right dorsal foot contusion – involving MTP and metatarsals proximal phalanxes.”[8]
[8] Reply at page 1.
The injury description on the form did not include the alleged injuries to the right hindfoot, right ankle and right knee.
The injury description was described as follows:
“One six meter (sic: metre) length of square hollow section slipped off the end of forklift tynes 150 mm off floor onto his right foot.”[9]
[9] Reply at page 1.

The treating medical evidence

In evidence, there are Mr Li’s Bonnyrigg Family Medical Centre clinical records (Bonnyrigg FMC clinical records).[10]
[10] ARD at pages 92-242.
On 11 June 2016, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li was at work assisting a forklift driver who was reversing when the forklift accidentally dropped a load of metal pipes weighing a few hundred kilograms onto his right foot. The reason for contact was described as “Right Fracture 1 - 4 distal phalanx”.[11] Dr Lam observed that Mr Li was wearing support footwear and that the right dorsal foot was tender and bruised. There was likely to be metatarsophalangeal (MTP) involvement. Dr Lam prescribed Mr Li Panadeine Forte tablets 500mg and Voltaren Rapid tablets 500mg.
[11] ARD at page 92.
On 17 June 2016, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li complained of numbness in the dorsum of the right foot when sitting for a long time. On examination, Dr Lam observed an inability to move his right ankle and toes in his right foot passively or actively. Dr Lam prescribed Endone tablets 5mg to be added to Mr Li’s medications.[12]
[12] ARD at pages 92-93.

On 24 June 2016, Dr Lam reported to GIO that Mr Li consulted him on 11 June 2016. Mr Li stated that he was strapping to assist a forklift when a metal pipe, weighing a few hundred kilograms, dropped on his right foot and caused him to fall backwards. He attended a hospital emergency department where he underwent an X-ray of the right foot. Dr Lam diagnosed fractures to the right distal phalanges 1 to 4; a right dorsal foot contusion involving MTP and metatarsals and proximal phalanxes; and a right posterolateral chest injury. He noted that Mr Li was slow to improve and that this could indicate prolonged healing. Mr Li’s pain score on a visual analogue scale (VAS) was 8/10 with medications. Dr Lam recommended physiotherapy and the continuing use of crutches. He noted that Mr Li was taking morphine-based analgesics due to the intensity of his pain.[13]
[13] ARD at pages 50-51.
On 6 July 2016, Mr Li underwent a bone scan on the referral of Dr Lam. On 8 July 2016, Dr Lam recorded in the Bonnyrigg FMC clinical records that the bone scan revealed traumatic fractures at the right second, third and fourth toes involving the distal phalanges; no stress fractures in the right big toe; moderately severe arthritis at the patellofemoral compartment of the left knee; and no abnormality at the right thoracic cage/rib.[14]
[14] ARD at page 96.
On 14 January 2017, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li complained of his right knee being weak and near collapse; reduced sensation; hypersensitivity; and frequent near falls. Dr Lam referred Mr Li to Dr Neil Griffith, consultant neurologist.[15]
[15] ARD page 112.
On 1 March 2017, Mr Li consulted Dr Griffith, who reported back to Dr Lam.[16] Dr Griffith took a history that Mr Li suffered a crush injury in June 2016 at work when a 50m steel pole he was supporting suddenly dropped on to his right foot. He screamed out in pain and had the steel pole removed by other workers and was then taken to Fairfield Hospital. X-rays revealed four fractured toes and he was provided with analgesics and a support boot. He did not require surgery and was discharged after about four hours with follow-up by his general practitioner the following day.
[16] ARD at page 86.
In his report dated 1 March 2017, Dr Griffith noted that Mr Li stated that the first four toes of his right foot did not move up or down and that they felt numb. Further, his right lower limb suddenly collapses. Mr Li reported poor balance and having fallen in the bathroom a few times. X-rays of his right foot in August and September 2016 revealed healed fractures to the first four toes with good alignment. On examination, Dr Griffith observed that Mr Li walked with a slight limp and without the aid of a crutch. Peripheral pulses and reflexes were normal with no objective muscle wasting. There was variable movement around the right ankle both with inversion, eversion and flexion and extension and variable flexion and extension movements of the toes of the right foot. The pattern of sensory disturbance and reported weakness was unusual because it did not follow a clear peripheral nerve distribution. There was no colour change or temperature difference. Dr Griffith arranged for Mr Li to undergo nerve conduction studies.
On 6 March 2017, Mr Li consulted Dr Long Chau, general practitioner, of the Bonnyrigg Family Medical Centre advising that he had fallen on the previous day. Dr Chau observed a large graze to the lateral aspect of the right ankle area and the right lateral forearm.[17]
[17] ARD page 114.
On 8 March 2017, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li had fallen the other day due to right leg weakness.[18]
[18] ARD at page 115.
On 10 March 2017, Dr Griffith reported to Dr Lam that he had reviewed Mr Li’s recent nerve conduction studies that revealed lower limb changes of peripheral neuropathy, which was unexpected. Dr Griffith arranged for further investigations to look into the possible causes of the peripheral neuropathy.[19]
[19] Reply at page 262.
On 20 March 2017, Ms Jenny Duong, registered nurse, of the Bonnyrigg Family Medical Centre recorded in the clinical records that Mr Li was finding it difficult to walk comfortably and steadily lately; right knee pain was getting worse, especially in the morning and whilst walking; there was tightness and stiffness in the right knee; there was difficulty straightening the right leg; and the application of Voltaren gel on the right knee helped to some extent.[20]
[20] ARD at pages 117-118.
On 24 April 2017, Mr Li underwent an MRI scan of his right knee by Dr Ramesh Cuganesan, radiologist, on the referral of Dr Lam.[21] The history provided to the radiologist queried a cruciate ligament injury. Dr Cuganesan’s findings included significant patellofemoral compartment chondromalacia as well as focal full-thickness chondral loss involving the medial femoral condyle; joint effusion and large popliteal cyst; and multiple intra-articular loose bodies.
[21] ARD pages 65-66.
In a report dated 26 May 2017, Dr Lam reported Mr Li’s description of the accident as follows:
“heavy tubes dropped and trapped his right foot pushed him onto the floor on bent right knee – he had to jump up and try and get away from the forklift twisted his right knee”.[22]
In his evidentiary statement, Mr Li stated that Dr Lam had erred in providing the above description.
[22] ARD at page 56.
In his report dated 26 May 2017, Dr Lam stated that Mr Li was given strong analgesia following the injury and he was not using his right leg because of severe right foot pain. Mr Li’s right knee symptoms became more prominent as the analgesics were reduced and he was encouraged to weight bear. Dr Lam opined that it was likely that his background of a degenerative knee was aggravated by the accident. He also opined that the injury to the right knee was in keeping with Mr Li’s work-related injury.
On 25 July 2017, Dr Ray Chin, orthopaedic surgeon, reported to Dr Lam that Mr Li had consulted him.[23] Dr Chin reported that Mr Li presented with anterior right knee pain and complaining that his right knee was giving way. This had occurred over the past two months since going from using two crutches to using one crutch. Dr Chin noted that Mr Li had sustained a workplace related right foot fracture that had been managed conservatively. On examination, Mr Li had recently had a fall onto his knee leading to some grazes on its anterior aspect. Overall knee alignment was in neutral; range of motion was from 0° to 120°; there was a palpable Baker’s cyst in the popliteal fossa; and there was some crepitus with patellar tracking. Dr Chin reviewed the recent MRI scan of the right knee. Dr Chin opined that Mr Li had chronic disuse of the right leg due to the right foot fracture that had caused his quadriceps to weaken. The giving way of his right knee was not unusual secondary to the anterior knee pain and the weakened quadriceps. Dr Chin opined that the mainstay of treatment would be physiotherapy and other management such as a knee support and cortisone injections. However, the Baker’s cyst was likely secondary to a rent in the posterior capsule with or without a meniscus tear. The increased fluid production in the knee was secondary to his arthritis. Mr Li was not ready for a knee replacement procedure because his pain profile was well-controlled.
[23] ARD at page 55.
On 21 August 2017, Mr Li attended Foot Focus for an initial podiatric assessment. Messrs Kieran Pethybridge and Paul Boudville co-signed a report to GIO dated 21 August 2017.[24] They reported that palpation reproduced pain on the first, second, third and fourth metatarsal heads both dorsally and plantarly. Pain was present with plantar flexion and dorsi flexion of the metatarsal phalangeal and interphalangeal joints. Intermetatarsal palpation caused significant discomfort, as well as palpation of both the medial and lateral ankle ligaments. This ankle pain was more likely a direct result of Mr Li’s altered weight-bearing and inhibitions on load-bearing of the forefoot region. Both the tibialis posterior and perineal muscle complexes were reduced in strength when tested. Podiatric examination revealed that Mr Li stood with an externally rotated knee position; had a reduced medial longitudinal arch height with a tendency to over-pronate; non-weight-bearing lesser digits of the right foot; and sprayed first and second digits of the right foot. He walked with a slow antalgic limp, vertical heel contact with clawing of the lesser digits on the left foot and the right first to fourth digits did not make any ground contact. They opined that Mr Li’s ongoing symptoms were consistent with the injury he suffered at work but they were perplexed by his lack of functional improvement and ongoing pain given the near 100 consultations with his physiotherapist.
[24] ARD at pages 63-64.
On 11 September 2017, Dr Griffith reported to Dr Lam that Mr Li had reported gradual improvement and a stable numbness distal to his right ankle, with the ability to touch his right foot, apart from the toes. Nerve conduction studies on 9 September 2017 demonstrated a stable mild peripheral neuropathy, which Dr Griffith suspected was a reflection of his non-insulin-dependent diabetes mellitus (NIDDM). Power in the lower limbs was normal. He had reduced filament testing distal to the right ankle, with normal knee and symmetric ankle jerk reflexes. Dr Griffith felt that Mr Li should be able to function at a higher level and expected further improvement and recovery to occur. Dr Griffith opined that Mr Li would need to closely monitor his diabetes, which he felt was responsible for his peripheral neuropathy.[25]
[25] ARD at page 87.
The undated report by Mr Michael Nguyen, physiotherapist, to Dr Lam was likely prepared in early 2018.[26] Mr Nguyen reported that consultations with Mr Li commenced on 22 December 2017. He described the presenting problem as chronic knee pain secondary to work-related trauma. Mr Li reported instability with mobilising and frequent falls due to his knee giving way spontaneously. Mr Li also reported posterior knee pain with a palpable lump. Mr Nguyen’s impression was one of a possible meniscus tear and/or Baker’s cyst. He provided Mr Li with advice and home based exercises and stretches. He provided Mr Li with soft tissue release, gentle knee joint mobilisations, stretches, strengthening, heat and electro-stimulation therapy. Mr Nguyen recommended an ultrasound of the posterior knee; continuation of one-on-one physiotherapy; engagement in a home exercise program; and regular attendances for general practitioner review.
[26] ARD page 72.
On 22 February 2018, Dr Chin reported to Dr Lam that Mr Li had returned to see him complaining of increasing and ongoing pain in the right knee and that the knee had given way on him numerous times leading to a stumble or a fall. Dr Chin confirmed that Mr Li had severe patellofemoral joint arthritis, moderate medial compartment arthritis, a large effusion and a large Baker’s cyst. He opined that Mr Li would benefit from a right total knee replacement.[27]
[27] ARD page 56.
On 23 March 2018, Dr Griffith reported to Dr Lam that he had reviewed Mr Li, who had reported a worsening in his condition, in that, he had experienced a number of falls and had now injured his right knee. In this regard, he was due to consult a specialist. Dr Griffith noted that Mr Li had variable power in the right knee which tended to give way with testing around his right foot and right ankle. He also noted that Mr Li walked with an intermittent limp. Dr Griffith could find no objective weakness or reflex loss. Mr Li had a mild diabetic peripheral neuropathy. He reported subjectively a reduction in light touch sensation distal to the right ankle and some of his sensory symptoms were suspected to be related to his mild diabetic peripheral neuropathy. Dr Griffith was satisfied that there was nothing sinister neurologically.[28]
[28] ARD at page 88.
On 19 June 2018, Dr Chin reported to Dr Lam that Mr Li had consulted him and wanted to proceed with a right total knee replacement. The pros and cons of surgery, as well as the risks, were explained and Mr Li was placed on Dr Chin’s waiting list.[29]
[29] ARD at page 57.
On 27 August 2018, Dr James Yu, interventional pain specialist and anaesthetist, reported to Dr Lam that Mr Li had consulted him in respect of a work injury in June 2016 and the development of right knee and right foot pain.[30] Dr Yu noted that a heavy object had dropped onto Mr Li’s right foot and that he had sustained closed fractures of the second, third and fourth distal phalanges. He was treated conservatively by an orthopaedic surgeon and continued to have physiotherapy. He wore a boot for about 1.5 years. Mr Li had noted discolouration and swelling associated with numbness on the right foot. He also developed moderate sharp pain in his right knee in 2017 when he started using a crutch. Dr Yu noted that a psychometric screening test suggested that Mr Li had extremely severe depression, anxiety and stress. He suffered from severe catastrophising, severe fear avoidance and significant low self-efficacy.
[30] ARD at pages 245-246.
In his report dated 27 August 2018, Dr Yu observed on examination hyperalgesia of the right foot with minimal swelling and discolouration of the skin. Dr Yu noted the nerve conduction study in March 2017 that reported sensorimotor peripheral neuropathy and the MRI scan in April 2017 that reported patellofemoral compartment chondromalacia, joint effusion, a large popliteal cyst and multiple intra-articular loose bodies. Dr Yu’s impression was one of right foot neuropathic pain with sympathetic dysfunction; right knee pain due to osteoarthritis; and physical deconditioning. Dr Yu recommended that Mr Li undergo a series of right lumbar sympathetic nerve block and right knee injections. He also recommended referral to an intensive and integrated multidisciplinary pain management program consisting of medical, pain psychology and physiotherapy treatment.
On 3 December 2018, Dr Yu reported to Dr Lam that Mr Li had again consulted him.[31] Dr Yu reported that Mr Li presented with a persistent right foot neuropathic pain and right knee pain. He had undergone a right lumbar sympathetic nerve block and right knee injection four weeks ago and reported a 20% to 30% reduction in pain. Mr Li also noticed that the discolouration and swelling in his right foot had reduced slightly. Dr Yu recommended a second right lumbar sympathetic nerve block and right knee injection, after which he proposed booking Mr Li into the intensive and integrated multidisciplinary pain management program. Dr Yu recommended the continuation of Mr Li’s anti-neuropathic medication at the same dosage.
[31] ARD at page 243.
On 21 February 2019, Dr Yu reported to Dr Lam that Mr Li had again consulted him.[32] Dr Yu reported that Mr Li presented with persistent right foot neuropathic pain and right knee pain associated with muscular weakness in his right lower limb. Mr Li had noticed that the discolouration and swelling in his right foot had reduced significantly. He reported that he was currently attending an intensive and integrated multidisciplinary pain management program. Dr Yu encouraged Mr Li to continue with the program. If the neuropathic pain became worse, he would consider pulsed radiofrequency treatment of the right lumbar sympathetic nerves.
[32] ARD at page 247.
On 14 May 2019, Dr Yu reported to Dr Lam that Mr Li had again consulted him.[33] Dr Yu noted that Mr Li had completed the intensive and integrated multidisciplinary pain management program and had since returned to his physiotherapist. He noted that the physiotherapist was utilising passive management strategies including massage. Dr Yu did not believe passive, hands-on physical therapy would provide long-term benefits for a chronic pain patient like Mr Li. Dr Yu encouraged Mr Li to continue with the physical and psychological pain strategies he had learnt by continuing with the physiotherapist and psychologist at the pain management program. As Mr Li’s right foot neuropathic pain with sympathetic dysfunction was worsening, Dr Yu recommended a repeat right lumbar sympathetic nerve block with pulsed radiofrequency neurotomy.
[33] ARD at page 248.
On 29 August 2019, Dr Chin provided a report to Mr Li’s lawyers.[34] Dr Chin confirmed that he initially saw Mr Li in July 2017 in respect of anterior right knee pain and the right knee giving way. Mr Li described an injury to his right foot 12 months prior to the initial consultation. Due to chronic pain in his right foot, he had not returned to his normal job and developed quadriceps wasting. He then fell onto his right knee resulting in anterior knee pain. Dr Chin noted that Mr Li had underlying arthritis in his patellofemoral compartment and medial compartment. Dr Chin stated that it was not uncommon for a pre-existing condition to be made worse by a subsequent injury. If it were only the fall onto his right knee, he may have required a total knee replacement at a much later time. Unfortunately, with this injury and his knee giving way, it stirred up his underlying arthritis necessitating a progression towards right total knee replacement surgery. Dr Chin opined that the underlying arthritis was certainly significant enough to warrant a total knee replacement. Dr Chin further opined that the failure of conservative management and Mr Li’s ongoing pain not settling down, made total knee replacement surgery necessary.
[34] ARD at page 58.
On 9 March 2020, Mr Li underwent a right total knee replacement by Dr Chin at Fairfield Hospital.[35]
[35] ARD at pages 249-253.
On 21 April 2020, Mr Li consulted Dr Chin, who reported to Dr Lam. Dr Chin reported that Mr Li was progressing quite well with physiotherapy and without pain six weeks following right total knee replacement surgery. Dr Chin opined that the timeframe for recovery was between three and four months following the procedure.[36]
[36] ARD at page 59.
On 28 February 2022, Dr Lam provided a report to Mr Li’s lawyers.[37] Dr Lam reported that Mr Li first consulted him on 11 June 2016 following the work injury on 10 June 2016 whereby a heavy load of metal poles collapsed to crush his right foot. He tried to release his foot from the pile of metal and felt his knee strained in the process. Prior to the accident, Mr Li had not suffered a knee injury. Following the accident, Mr Li’s painful foot required immobilisation with a controlled ankle motion boot (CAM boot) and his pain was managed with analgesics, physiotherapy and specialist reviews. Mr Li experienced numerous falls since the accident as a result of his weak right knee that caused him to lose confidence in walking. After a few failed steroid injections, Mr Li was offered a right total knee replacement to address his full-thickness chondral loss to the medial condyle and chondromalacia of patellofemoral cartilage.
[37] ARD at pages 60-61.
In his report dated 22 February 2022, Dr Lam opined that it was very likely Mr Li’s right knee pain was the direct result of the initial work injury when he sprained and injured his knee whilst forcefully pulling his foot out of the entrapment. Months of using crutches, a CAM boot and falls due to the foot injury could have aggravated his right knee further. Dr Lam stated that Mr Li was very functional and pain free prior to the accident and concluded:
“Whilst the injury was not directly impacting his knee, however, the impact could leverage the lower leg causing soft tissue in the knee resulting in eventual knee replacement.”[38]
[38] ARD at page 60.
On 23 March 2022, Dr Chin provided a report to Mr Li’s lawyers.[39] Dr Chin confirmed that Mr Li had undergone right total knee replacement surgery on 9 March 2020. It was now two years following the surgery and he had done quite well in terms of pain relief. Dr Chin reported that Mr Li was now walking without pain. He was able to take stairs normally and could walk 20 minutes with no discomfort. He opined that Mr Li’s walking tolerance should be longer. He had an excellent range of motion and a well-healed scar.
[39] ARD at page 62.

There are a number of references in the Bonnyrigg FMC clinical records to Mr Li’s consultations with Dr Roderick Kuo, orthopaedic surgeon. There is also a reference to Dr Kuo in Mr Li’s evidentiary statement. However, there are no clinical records or reports in respect of Mr Li from Dr Kuo in evidence.

The forensic medical evidence

Dr Robin Chase: 11 October 2016

On 7 October 2016, Mr Li consulted Dr Robin Chase, occupational physician, at the request of GIO. In evidence, there is a report by Dr Chase dated 11 October 2016.[40] I will now refer to the relevant parts of that report.
[40] Reply pages 34-43.
Dr Chase took a history from Mr Li that, on 10 June 2016, a 15m long metal pole and three 8m long metal plates were being lifted in a sling by a forklift when they were dropped on Mr Li’s right foot. He could not get his boot out. He was wearing steel capped boots. Eventually, the metal was lifted up. He was taken to Fairfield Hospital where he underwent
X-rays and was sent home. The following day, he consulted Dr Lam and was referred to Dr Kuo. He mobilised and was sent for physiotherapy, which was ongoing. He stated that he was getting better but still had pain in the right foot. He commenced experiencing right shoulder pain as a consequence of sleeping on a couch.
On examination, Dr Chase observed that Mr Li walked with a right limp using a walking stick. There was no evidence of wasting, swelling, crepitus or redness in the right foot. There was a full range of motion of the ankle and all toes. There was tenderness of the entire right foot in a stocking distribution. Power was about normal, in the sense that, he had giving way bilaterally. There was a full range of motion in both knees. There was crepitus in both knees but no effusions, no tenderness and no instability.
Dr Chase reviewed certificates by Dr Lam, a report by Dr Lam dated 24 June 2016, a report by rehabilitation services dated 19 August 2016, a whole body scan report dated 6 July 2016 and a report by Professor Kuo dated 2 August 2016. Dr Chase noted that in the whole body scan report there was no mention of any uptake specifically in the shoulders or the right knee.
Dr Chase opined that Mr Li had sustained fractures to the first, second, third and fourth distal phalanges of the right foot as a result of large pieces of metal falling onto his right foot. It was entirely consistent that one could sustain such fractures in such an incident. Work was a substantial contributing factor to Mr Li’s injuries.
Dr Chase noted that the fracture of the first distal phalanx had healed but there had been some delayed union in the other phalanges.
Dr Chase commented that Mr Li reported a constellation of other symptoms including pain in the knees and in the right shoulder. He could find no evidence of any injuries or conditions in the knees, except for the bone scan evidence of osteoarthritis in the left knee. Physical examination did not reveal significant abnormalities or evidence of injury to that knee. It was likely age-related change that was picked up incidentally on the bone scan.

Dr Robin Chase: 23 October 2016

On 23 October 2016, Dr Chase prepared a supplementary report at the request of GIO.[41] I will now refer to the relevant parts of that supplementary report.
[41] Reply at pages 44-45.
Dr Chase was requested to comment on surveillance video provided to him by GIO that commenced on 7 October 2016.
Dr Chase stated that his observations of Mr Li in the video surveillance was broadly consistent with his examination of Mr Li on 7 October 2016. He noted that, at the beginning of the video, Mr Li walked with little evidence of a limp but by the end of the video he walked with a limp. It was conceivable that the limp became progressively worse the more he walked.

Dr Robin Chase: 24 April 2017

On 24 April 2017, Mr Li again consulted Dr Chase at the request of GIO. In evidence, there is a report by Dr Chase dated 24 April 2017.[42] I will now refer to the relevant parts of that report.
[42] Reply at pages 46-56.
On examination, Dr Chase observed that Mr Li walked with a right limp using a walking stick held in his right hand. He walked with a stiff legged gait. Measurements of the lower limbs showed that both thighs measured 44.5cm, the right calf measured 36.8cm and the left calf measured 36cm. There was no evidence of wasting, swelling, redness or vasomotor or sudomotor changes. The patterns of wear and tear on both feet were the same and heavy. A full range of motion was demonstrated in both knees, though there was bilateral crepitus but no effusion or instability. There was a full range of motion in both ankles to flexion, extension, inversion and eversion. There was a full range of motion in the toes. There was no complaint of pain on right foot palpation whilst distracted but when asked if the foot was tender, he responded that it was tender over the dorsal aspect. Sensation was normal but power was markedly weak. There were the inconsistencies referred to above in Mr Li’s presentation.
Dr Chase confirmed his opinion that Mr Li had sustained fractures to the first, second, third and fourth distal phalanges of the right foot as a result of large pieces of metal falling onto his right foot and that it was entirely consistent that one could sustain such fractures in such an incident. He also opined that Mr Li appeared to continue to suffer from the effects of his work injury.
Dr Chase noted that Mr Li reported high levels of pain despite his fractures having healed long ago. Mr Li demonstrated far higher levels of reported pain and disability in the presence of no measurable impairment.
In respect of prognosis, Dr Chase opined that it should be excellent. Mr Li had sustained fractures of the distal phalanges, albeit that three of them were complicated by some delayed union. There may also have been a complication because of the contusion/soft tissue injury to the forefoot. He should have made a full recovery and returned to full duties long ago. There are likely a number of factors causing his delay, not the least of which was his slow mobilisation and reluctance to move the right foot. It was also possible that he demonstrated greater ability and less disability at other times.

Dr Robin Chase: 29 May 2017

On 29 May 2017, Dr Chase prepared a supplementary report at the request of GIO.[43] I will now refer to the relevant parts of that supplementary report.
[43] Reply at pages 57-58.
In response to being provided with Dr Lam’s referral letter to Dr Chin dated 5 May 2017, Dr Chase observed that Mr Li had significant osteoarthritis in the right knee which was present at the time of the bone scan on 6 July 2016, being less than four weeks after the injury to the right foot on 10 June 2016. Dr Chase opined that the arthritis in the right knee was in no way related to the right foot injury. The right knee condition was entirely degenerative. It was not plausible that the right foot injury would have aggravated or accelerated the osteoarthritis in the knee. It was likely that, in view of the severity of the arthritis shown on the bone scan, that his knee would have become symptomatic at some stage.

Dr Y Kai Lee: 30 April 2019

On 23 April 2019, Mr Li consulted Dr Y Kai Lee, orthopaedic surgeon, at the request of his lawyers. In evidence, there is a report by Dr Lee dated 30 April 2019.[44] I will now refer to the relevant parts of that report.
[44] ARD at pages 44-49.
Dr Lee took a history from Mr Li that he was injured at work on 10 June 2016. Mr Li’s boss was lifting some long poles and metal pipes about 15m in length using a forklift. Mr Li was asked to balance those pipes. The pipes dropped and crushed his right foot. He tried to pull his foot out forcefully and twisted his knee. He recalled trying to pull very hard for the foot to come out.
Dr Lee reported Mr Li’s current complaints as pain in the right foot and pain in the right knee. The right knee pain was becoming worse. The right knee has given way on him and he has fallen a couple of times. He cannot sleep because of the pain. Dr Chin could not get approval for a right total knee replacement from GIO and Mr Li was placed on a waiting list for the proposed surgery.
Dr Lee referred to X-rays of Mr Li’s right foot and right knee, the MRI scan of the right knee, the whole body bone scan and the nerve conduction studies.
On examination, Dr Lee observed Mr Li walked in limping on his right foot and holding a stick in his right hand. There was diffuse tenderness in the right foot. The right ankle was stiff. There was diffuse tenderness in the right knee. There was no ligamentous laxity in the right knee.
Dr Lee opined that Mr Li suffered fractures of the second, third and fourth toes of the right foot. The fractures had healed but he was still in pain and there was stiffness in the right foot and ankle. As a result of Mr Li’s limp and the twisting of his knee at the time of injury, he aggravated the underlying asymptomatic degenerative condition in his right knee. Further, Dr Lee opined that but for the injury on 10 June 2016, Mr Li would still have required a right total knee replacement but not until he was aged between 60 years and 65 years. The injury at work brought forward the need for the right total knee replacement surgery by about 5 to 10 years.

Dr Uthum Dias: 9 March 2021

On 9 March 2021, Mr Li consulted Dr Uthum Dias, consultant occupational physician, at the request of his lawyers. In evidence, there is a report by Dr Dias dated 9 March 2021.[45] I will now refer to the relevant parts of that report.
[45] ARD pages 11-27.
Dr Dias took a history from Mr Li that the subject accident occurred on 10 June 2016. Mr Li recalled that he had been called by his boss to assist with the transport of heavy steel products. He recalled that his boss was operating a forklift and was trying to move a bundle of heavy and 15m long metal poles and metal plates which had been bundled up but were unstable on the tynes of the forklift. He was instructed by his boss to hold the heavy metal poles and plates steady in the tynes of the forklift. As he walked over to the bundle, which was at approximately chest height, his boss who was operating a forklift, accidentally pressed the wrong button which released the metal poles from the tynes of the forklift. As a result, the heavy metal products dropped from chest height directly onto Mr Li's foot. Mr Li sustained a severe crush injury to his right foot. He had been wearing steel capped safety boots at the time of the incident. Mr Li yanked his right foot away from the heavy metal bundle and felt pain in his right foot, right ankle and right knee at this time, with the most severe pain over his right forefoot and in the toes of his right foot.
Dr Dias also took a history that Mr Li’s right knee was further aggravated in 2017 due to altered gait patterns associated with his right foot/ankle injury. Mr Li recalled that his right knee became increasingly unstable from 2017 onwards resulting in multiple falls.
Dr Dias took a post-accident treatment history that was consistent with the evidence.
In respect of current symptoms, Dr Dias reported that Mr Li complained of ongoing symptoms of pain, stiffness and discomfort affecting his right knee, right ankle and all of the toes of his right foot on a daily basis. There was significant stiffness, intermittent pins and needles and numbness in those regions. Mr Li stated that his right knee stability had improved following his right total knee replacement surgery and it no longer gave way.
On examination of Mr Li’s right knee, Dr Dias observed a well-healed midline vertical scar running down the anterior aspect of the right knee consistent with the right total knee replacement surgery of 9 March 2020. The scar measured 18cm in length and had a noticeable hyper pigmentary contrast with the surrounding skin and a mild contour defect. There were no visible suture marks or tethering of the scar to underlying structures. The scar was clearly visible to the naked eye from 2m away. Mr Li was tender to palpation in the infrapatellar region of the right knee and over the medial joint line of his right knee. He was unable to fully extend his right knee, falling 5° short of full extension due to pain and discomfort. Flexion of the right knee was limited to 100°. There was no evidence of ligamentous laxity on testing for the integrity of the cruciate and collateral ligaments. Alignment of the right knee appeared to be within normal limits.
On examination of Mr Li’s right ankle and right foot, Dr Dias observed them to be normal. There was tenderness on palpation over the medial anterior and lateral aspects of the right ankle. There was no evidence of swelling or effusion. There was tenderness to palpation over the dorsum of the right foot and over the entirety of the right forefoot and right foot toes. There were significant symptoms of metatarsalgia on compression of the metatarsal heads. There was no evidence of swelling or oedema noted on inspection of the right foot or the right ankle. There were no vasomotor or sudomotor changes on inspection of the right foot in the right ankle region. Movements of the right ankle and the right hindfoot were limited in all planes due to significant pain and discomfort. Plantar flexion of the right ankle was performed to 10°; dorsi flexion of the right ankle was to 5°; inversion of the right hindfoot to 5°; and eversion of the right hindfoot to 5°. Movement of the right foot toes were minimal and he appeared unable to actively move any of the toes of the right foot in flexion or extension at any of the metatarsophalangeal (MTP), distal interphalangeal (DIP) and proximal interphalangeal (PIP) joints.
Dr Dias opined that Mr Li had symptoms and signs consistent with chronic right forefoot pain, stiffness and discomfort with associated non-specific sensory symptomatology, secondary to an acute crush injury with associated multiple fractures of the distal phalanges of the first, second, third and fourth toes; chronic right ankle/hindfoot pain, stiffness and discomfort, secondary to an acute soft tissue impaction injury; and a persistent aggravation of previously asymptomatic right knee osteoarthritis, secondary to a combination of an acute soft tissue injury on 10 June 2016 and prolonged altered gait mechanics as a result of his right foot/ankle injury. The diagnosis was consistent with the mechanism of injury described.
Dr Dias assessed Mr Li’s whole person impairment (WPI) in respect of the right lower extremity (right forefoot/toes, right knee, right ankle and right hindfoot) at 26% and the skin (surgical scarring) at 1% WPI. In combining those assessments, Dr Dias assessed a final WPI of 27%.

Dr Robin Chase: 31 May 2021

On 31 May 2021, Mr Li again consulted Dr Chase at the request of GIO’s lawyers. In evidence, there is a report by Dr Chase dated 31 May 2021.[46] I will now refer to the relevant parts of that report.
[46] Reply at pages 59-76.
Mr Li confirmed the histories that Dr Chase had taken at the consultations on 7 October 2016 and 24 April 2017. Mr Lee stated that his right knee pain commenced in 2017 after a fall in the garden at home. He was doing exercises provided by his general practitioner and was walking around the garden and fell onto the driveway injuring his right knee. After the fall, he consulted Dr Lam and was referred to Dr Yu. He consulted Dr Chin and underwent a total right knee replacement in 2020. He continues to consult his general practitioner, consults a physiotherapist once per week and does a home-based exercise program. The right knee is constantly painful and the pain is worse when standing, walking or ascending and descending stairs. The right ankle and the right foot are constantly painful.
On examination of the right lower limb, Dr Chase observed no extension lag. The knee was not hot and there was no crepitus or redness. There was no effusion. There was mild tenderness of the right knee but there was an excellent anteroposterior and mediolateral stability. There was a 15cm scar overlying the right knee which was still slightly red but there were no suture marks or adhesions evident. Straight leg raising was 60° on the right and 70° on the left. Slump tests were negative. Lower limb reflexes were normal as were sensation and power. There was mild tenderness of the medial and lateral components of the right ankle but there was no instability. There was a full range of motion in all toes. There was a full range of motion in the right foot and no evidence of vasomotor or sudomotor changes in the right lower limb. There had never been any evidence of lower limb muscle wasting.
Dr Chase opined that there was no question that Mr Li sustained fractures to the second, third and fourth distal phalanges and noted that some documents referred to a fracture of the first distal phalanx as well.
Dr Chase opined that there was no evidence of injury to Mr Li’s right hindfoot or right ankle.
Dr Chase opined that there was no evidence of injury to Mr Li’s right knee as a result of the fractures to his right foot. Mr Li had pre-existing moderately severe tricompartmental osteoarthritis that became worse after he fell over in his garden at home. This was unrelated to the fractures of his right foot.
Dr Chase opined that Mr Li’s injuries had reached maximum medical improvement and had been stable for some time. He assessed the right lower extremity (right foot only) at 0% WPI as there was a full range of motion in all digits and no lower limb muscle atrophy.

Dr Robin Chase: 1 July 2021

On 1 July 2021, Dr Chase provided a supplementary report at the request of GIO’s lawyers.[47] I will now refer to the relevant parts of that supplementary report.
[47] Reply at pages 77-79.
Dr Chase was requested to comment on the report by Dr Chin dated 25 July 2017 wherein he opined that the chronic disuse of the right leg due to the right foot fractures had caused Mr Li’s quadriceps to be weakened and that giving way symptoms were not unusual secondary to anterior knee pain and weakened quadriceps. Dr Chase pointed out that it was equally plausible that the weakness was due to the underlying osteoarthritis in the knee, which was unrelated to the foot fracture. Further, Dr Chase found no evidence of wasting in the thighs or calves on the two occasions that he examined Mr Li.
Dr Chase was requested to comment on the report by the podiatrists dated 21 August 2017. Dr Chase observed that the podiatrists found abnormalities but were perplexed by Mr Li’s lack of functional improvement and ongoing pain. Dr Chase commented that it was plausible that Mr Li may have had weakness in the tibialis posterior and perineal muscle complexes at that time but he observed that was three years ago. The lower limb weakness could be due to disuse and/or due to the right knee osteoarthritis.
Dr Chase opined that, whilst he would accept that the right forefoot injury might have resulted in muscle weakness in the right leg, he had never been able to find any evidence of muscle atrophy. Even so, the presence of muscle weakness will not result in an aggravation, exacerbation, acceleration or deterioration of osteoarthritis.
In light of the treating podiatrists’ observation of discomfort in Mr Li’s ankle ligaments and ankle pain, Dr Chase would accept that, if he had biomechanical problems in the right foot, he could have had right ankle symptoms as a result of the accepted right forefoot injury; but on neither of his two physical examinations could he find evidence of an ankle injury.

Dr Uthum Dias: 17 December 2021

On 17 December 2021, Dr Dias prepared a supplementary report at the request of Mr Li’s lawyers.[48] I will now refer to the relevant parts of that supplementary report.
[48] ARD pages 29-33.
Dr Dias was provided with additional documents to review in the preparation of his supplementary report.[49]
[49] ARD at pages 30-31.
Dr Dias repeated the mechanism of the injury on 10 June 2016.
Dr Dias stated that by far the more severe pain was in Mr Li’s right foot region. Based on the available evidence, it appeared that Mr Li did sustain a mild soft tissue injury to his right knee as a result of the accident but his most significant symptomatology was in his right foot region. He then began to experience worsening right knee pain, due to prolonged altered gait patterns, prolonged use of crutches and prolonged use of a CAM boot in the months following the accident. Mr Li’s right knee symptomatology began to manifest more and more in early 2017. Prior to the accident, Mr Li did not have any documented injuries affecting his right knee. He did have radiological evidence of pre-existing degenerative change in his right knee region, which would have been present prior to the accident. However, his pre-existing condition of right knee osteoarthritis was asymptomatic prior to the accident. Mr Li’s right knee condition worsened and became increasingly unstable, resulting in multiple falls. Eventually, it deteriorated to the point where he underwent a right total knee replacement on 9 March 2020.

Dr Dias opined that Mr Li’s right knee condition arose from a combination of factors. Those factors included the trauma of the incident on 10 June 2016; prolonged altered gait patterns as a result of the significant right foot and right ankle injury; the consequential falls on the right knee from 2017 onwards; weightbearing difficulties; the prolonged use of the CAM boot; and the prolonged use of crutches.
Dr Dias opined that 10% of Mr Li’s right knee condition related to his pre-existing constitutional degenerative changes; 20% related to the soft tissue injury to the right knee on 10 June 2016; and 70% related to the prolonged altered gait patterns, weight-bearing difficulties, the prolonged use of the CAM boot the prolonged use of crutches and the consequential falls onto the right knee since 2017.
Dr Dias opined that the major contributing factor to Mr Li’s right knee condition related to the prolonged altered gait patterns and weight-bearing difficulties experienced as a result of his right foot injury on 10 June 2016.

Dr Robin Chase: 23 February 2022

On 23 February 2022, Dr Chase provided a supplementary report at the request of GIO’s lawyers.[50] I will now refer to the relevant parts of that supplementary report.
[50] Reply at pages 80-82.
Dr Chase was provided with a statement by Mr Li dated 14 December 2021 (not in evidence), Dr Dias’ report dated 17 December 2021 and Dr Lee’s report dated 30 April 2019 and was asked to consider the same.
Dr Chase observed that when he saw Mr Li on 7 October 2016, four months after the injury to his right foot, he denied any previous symptoms or injuries in his lower limbs. He stated that he had pain in his foot but acknowledged it was getting better. He stated he was starting to experience right shoulder pain. He did not report knee pain. On examination, there was no evidence of muscle wasting and he had full range of motion in both knees. There was crepitus but no effusions, no tenderness and no instability. Mr Li made no reference to right knee pain following the injury on 10 June 2016. There was no evidence of an acute right knee injury on that day. The date of onset of the right knee pain was unclear but it was certainly after the consultation on 7 October 2016.
Dr Chase noted that both Dr Lee and Dr Dias were of the opinion that Mr Li sustained an injury to his knee at the time of the injury to his right foot. Dr Chase disagreed with that opinion but noted that their opinions were likely based on the history given to them by Mr Li some years after the injury. Dr Chase observed that his assessment four months after the right foot injury was much closer in time to 10 June 2016 and therefore, likely to be a far more accurate reflection of the symptoms at that time.
Dr Chase maintained that Mr Li did not sustain an acute right knee injury. He suffers from osteoarthritis of the knee and this is a degenerative condition.

Dr Uthum Dias: 23 May 2022

On 23 May 2022, Dr Dias prepared a supplementary report at the request of Mr Li’s lawyers.[51] I will now refer to the relevant parts of that supplementary report.
[51] ARD at pages 34-38.
Dr Dias was provided with a statement by Mr Li dated 28 April 2022 (not in evidence), a report by Dr Lam dated 23 June 2016 (not in evidence) and a report by Dr Chin dated 23 March 2022.
Dr Dias was asked to assume that the contents of Mr Li’s statement were correct. He was then asked to provide his opinion as to whether the events set out by Mr Li caused the latter to have a consequential condition of his right knee and if so, to explain how this brought about the need for total right knee replacement surgery.
Dr Dias responded that it appeared that Mr Li’s significant right foot injury on 10 June 2016 resulted in prolonged altered gait patterns, prolonged use of crutches and prolonged use of a CAM boot for several months following the accident. This resulted in the development of quadriceps muscle wasting in his right thigh region as a consequence of his right foot condition and chronic right knee patellofemoral instability. Such instability resulted in multiple falls and recurrent exacerbations or aggravations of a previously asymptomatic degenerative condition in his right knee. It ultimately culminated in the need for the right total knee replacement procedure that took place on 9 March 2020.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Fusun’s submissions

There is no issue that there was a contusion to the dorsum of Mr Li’s right foot and fractures to the phalanges in digits 1 through to 4 on 10 June 2016. Frank injuries to the right hind foot, right ankle and right knee on 10 June 2016 are disputed. A consequential condition to Mr Li’s right knee as a result of the accepted right forefoot injury and the alleged right hind foot and right ankle injuries on 10 June 2016 is disputed.
The injury description in Mr Li’s evidentiary statement was different to the description in the notification of injury form. Mr Li’s evidence was that 15m metal poles dropped directly onto his right foot. Whereas the notification of injury form referred to one 6m length of square hollow section falling on to his right foot.
In his evidentiary statement under the description of the incident, the injuries and treatment, there is no evidence of a direct injury to Mr Li’s right ankle. In effect, Mr Li gives no evidence of an injury to his right ankle.
In stark contrast was the history provided by Mr Li to Dr Dias that Mr Li had yanked his right foot away from the heavy-metal bundle and felt pain in his right foot, right ankle and right knee at that time. Dr Dias then proceeded on the assumption of a direct injury to the right ankle. On Dr Dias’ examination of Mr Li’s right ankle, it appeared normal. There was no evidence of swelling or effusion but he was tender to palpation over the medial anterior and lateral aspects of the right ankle. There were, effectively, no objective signs at all in respect of the right ankle. It was purely subjective.
In his report dated 9 March 2021, Dr Dias stated that the details of the interview were obtained from Mr Li unless otherwise stated. It is not entirely clear whether Mr Li had the benefit of an interpreter at the time of his consultation with Dr Dias. Mr Li’s evidence was that he required the assistance of an interpreter and elsewhere in the medical material it was stated that he required the assistance of an interpreter. He had the assistance of an interpreter at the arbitration hearing. So, there is a further question mark over the accuracy of the history taken by Dr Dias.
In Dr Chase’s report dated 11 October 2016, he stated that on examination, amongst other things, he observed no evidence of wasting, swelling, crepitus or redness in the right foot. Mr Li had a full range of motion of the ankle and all the toes. There was tenderness of the entire right foot in a stocking distribution and power was about normal in the sense that he had giving way bilaterally. Dr Chase’s examination took place a matter of months after the injury and found no problem with Mr Li’s right ankle.
In Dr Chase’s report dated 24 April 2017, he stated that there were inconsistencies in Mr Li’s presentation in respect of the claimed injuries. Those inconsistencies were reflected in the absence of any evidence in Mr Li’s evidentiary statement of injury to the right ankle and are vitally important when one comes to consider the weight to be given to the opinion of Dr Dias in respect of an injury to the right ankle. Those inconsistencies are underscored by Mr Li’s undoubted psychological overlay identified in the Bonnyrigg FMC clinical records with references to whole-body pain and pain from top to bottom of body.
In these circumstances, there must be a great deal of caution applied to Dr Dias’ opinion about the injury to the right hind foot and the right ankle.
Dr Chase definitively stated that he could find no evidence of any injury to the right hind foot and the right ankle. There are no hospital records in evidence to support the claim of any injury to the right hind foot and the right ankle. Dr Chase’s finding of no evidence of any injury to the right hind foot and the right ankle is amply supported by the Bonnyrigg FMC clinical records. The entry on 11 June 2016 in the clinical records made no reference of an injury to Mr Li’s right ankle. There are references in the clinical records to the right ankle but they were in the context of Mr Li not being able to move the ankle at that stage, which was probably understandable because he had bruising through the foot.
A direct injury to the right hind foot and the right ankle is not made out in any hospital records or the Bonnyrigg FMC clinical records. It is not made out in Dr Lam’s report to GIO dated 24 June 2016 where there was no reference to any injury to the right ankle. Dr Dias proceeded on the basis that there had been a direct injury to the right hind foot and the right ankle. Such conclusion was not made out by the evidence.
In respect of Dr Dias’ evidence regarding the right ankle, Fusun relied on Hancock v East Coast Timbers Products Pty Ltd[52] (Hancock); Paric v John Holland (Constructions) Pty Ltd[53] (Paric); and Krstevska v Fast & Fluid Management Australia Pty Ltd[54] (Krstevska).
[52] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
[53] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[54] Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69.
Applying the principles in Hancock, Paric and Krstevska, Mr Li must necessarily fail on proving primary liability for injury to the right ankle and right hind foot.
In respect of Mr Li’s right knee, there is absolutely no doubt that he suffered from an advanced degenerative condition of his right knee which was clearly unrelated to his alleged frank injury or consequential condition. Such proposition is amply supported by Dr Chin, who specialises in knees and treated Mr Li.
Dr Chin opined that Mr Li’s underlying right knee arthritis was certainly significant enough to warrant a total knee replacement and that, with the failure of conservative management and his pain not settling down, right total knee replacement surgery was necessary. Such opinion justifies a finding that the ultimate need for a total knee replacement was as a result of the pre-existing degenerative changes in the right knee. There is no evidence that would allow the Commission to conclude that the severe degenerative arthritis of the right knee was caused by the incident on 10 June 2016.
Mr Li relied on the report of Dr Lee dated 30 April 2019, who proceeded on the history that Mr Li had injured his right knee crawling out from under the material that had fallen on his right foot. Dr Lee was content to simply say that as a result of his limping and the twisting of his knee at the time of the injury, it had aggravated the underlying degeneration of his right knee.
In his evidentiary statement, Mr Li said that he injured his right knee pulling it out from under the heavy metal bundle that fell on him on 10 June 2016. There is immediately some doubt as to the accuracy of that history because of the description in the notification of injury form that recorded one square metal pole and not a bundle slipping off the end of the forklift tynes.
The difficulty for Mr Li does not stop there because when one looks at Dr Lam’s report to GIO dated 24 June 2016, there was no reference to an injury to the right knee. The entry on 11 June 2016 in the Bonnyrigg FMC clinical records made no reference to an injury to the right knee. It was not until the entry in the clinical records on 14 January 2017 that there was a reference to symptoms in Mr Li’s right knee, namely, “right knee down – weak and near collapse”.[55] However, there was no reference to an injury to the right knee on 10 June 2016.
[55] ARD page 112.
Apart from Mr Li’s own evidence, there is simply no support for the contention that he suffered an injury to his right knee on 10 June 2016. Mr Li’s evidence was not consistent with the notification of injury form, the Bonnyrigg FMC clinical records or Dr Chin’s evidence. Further, there was no evidence from the hospital (Fairfield Hospital).
Mr Li’s case based on Dr Dias is entirely relying on the history that he injured his right knee on 10 June 2016 by yanking his right foot away from the heavy metal bundle. Such history cannot be accepted as it is not supported by the evidence, apart from Mr Li’s own evidence in his evidentiary statement, which was made in 2023 and was not contemporaneous. Dr Dias went on to offer the opinion that Mr Li sustained a frank injury to his right knee on 10 June 2016 and a consequential condition of his right knee.
It should be noted that, initially, Mr Li was complaining of left knee symptoms and underwent a bone scan that identified moderately severe arthritis at the patellofemoral compartment of the left knee.
Fusun relied on the opinion of Dr Chase, who first examined Mr Li on 7 October 2016. On examination, Dr Chase observed a full range of motion in both knees. Dr Chase referred to the bone scan that revealed moderately severe arthritis of the patellofemoral compartment of the left knee and that there was no uptake specifically in the right knee. Dr Chase did not support a direct injury to Mr Li’s right knee on 10 June 2016.
A number of the doctors referred to Mr Li’s right knee being asymptomatic prior to the incident on 10 June 2016. There is no evidence, other than Mr Li’s assertion that his right knee was asymptomatic. The Bonnyrigg FMC clinical records commenced on 11 June 2016, being the day following the accident. There are no clinical records prior to that date and it is unclear whether Dr Lam was treating Mr Li prior to the accident. There is no medical history in evidence prior to 10 June 2016.
In respect of the claimed consequential right knee injury, there was the preliminary question as to what such injury resulted from. There was no evidence of injury to the right ankle or the right hind foot. Dr Chase ultimately said in his final report that there was an assumption that the giving way of the right knee and the falls were due to weakness in the quadriceps muscles. However, there was advanced degeneration in the right knee compartment which would be equally consistent with a mechanism of giving way and the effects on the right leg as a whole. In other words, it was not simply that there was a problem with the right foot; therefore, the quadriceps were wasted; therefore, there was giving way of the knee; and therefore there was an aggravation. The latter was, effectively, Mr Li’s case. However, that was not borne out by what Dr Chase found in his initial examination of Mr Li.
The claimed consequential right knee injury must be looked at in the terms of the principles in Kooragang Cement Pty Ltd v Bates (Kooragang)[56] and the commonsense test of causation when considering a condition that has resulted from an injury.
[56] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
Dr Chase’s opinion is undoubtedly very logical. When one looks at the material, it is not until 2017 that there was a reference to the right knee in the Bonnyrigg FMC clinical records. It was certainly not a reference to a frank injury. There were a number of certificates issued by Dr Lam after the accident in 2016. However, it was not until January 2018 that Dr Lam made any reference to there being a problem with the right knee. As Dr Chase pointed out, this was equally consistent with the natural progression of the severe degenerative condition in Mr Li’s right knee.
Applying the principles in Kooragang, the Commission could not be satisfied that there is a consequential condition or loss that results from the injury to Mr Li’s right forefoot. It may possibly have resulted from some functional overlay but there was no medical evidence to support that. The other explanation, as opined by Dr Chase, was that it was simply the natural progression of the underlying degenerative process, which was significant.
Dr Chin was not really supportive of Mr Li’s case for a consequential condition of the right knee that resulted from the right foot injury. Dr Lee fell short as well because he had an each-way stab at it. There was an absence of pre-accident medical records to ascertain what was going on with Mr Li’s right knee before the accident. As a result, there was a good deal of speculation about what was causing the problem with his right knee.
There are question marks about Mr Li’s presentation and consequently, how one deals with his evidence and his medical evidence generally.
The commission could not be satisfied on a common sense evaluation of the causal chain that Mr Li suffered a consequential condition to his right knee. There was no direct injury to the right knee. There was no direct injury to the right ankle or the right hind foot.

Mr Li’s submissions

Fusun made a great deal about the radiological evidence which revealed that Mr Li had particularly advanced osteoarthritis in the right knee. However, Fusun’s submissions did not grapple with Mr Li’s extremely good level of general health before the subject incident. He had a commendable work history in Australia. The work he had performed involved constant physical effort including, walking, standing, bending, lifting and carrying. One cannot do that if one has troublesome symptoms. Mr Li was in good health prior to the subject incident. He was working. He was playing soccer regularly. If Mr Li was well enough to work full-time and play soccer, why would he seek medical attention for his right knee? That is an explanation for why there was an absence of pre-accident medical records to ascertain what was going on with Mr Li’s right knee before the accident.
Mr Li was functionally in very good health. He had degenerative changes in his right knee of which he may not have been aware. They were not affecting his ability to participate in full-time work of a manual nature or playing soccer.
In respect of the notification of injury form, it was not a signed statement. It was a form that was filled in by someone unknown. It is not known whether the person who completed the form was a witness to the incident. The form was an uncertain source of information. In contrast, there is Mr Li’s signed statement taken with the assistance of an interpreter. Mr Li’s signed statement should be preferred over the notification of injury form of uncertain origin.
In Dr Chase’s report dated 11 September 2016, he took a history of a 15m long metal pole and three 8m long metal plates being lifted in a sling by a forklift and dropped on Mr Li’s right foot. That is certainly more than just the one pole referred to in the notification of injury form. Mr Li’s signed statement was a more probable description of the event rather than the notification of injury form. In his history of injury, Dr Chase described more objects dropping on Mr Li’s foot than the notification of injury form.
Despite Mr Li wearing safety footwear, the blow was enough to fracture four toes in his foot and also injure the dorsum of his foot. The dorsum of the foot is the top of the foot. It is an extensive area of the foot. It is not just the toes, it is the rest of the upper part of the foot. Mr Li was confronted with these objects falling on his foot. It must have been acutely painful and immediately fractured four of his toes. So, it was perfectly understandable that someone in that dilemma would immediately try to save themselves from further injury by extricating the foot from the metal objects on top of it. It was perfectly plausible how in such an incident, one could produce a degree of strain or injury to a knee. Force was used to endeavour to rescue himself from the predicament he was in. There is nothing implausible about Mr Li’s description that he also experienced some right knee discomfort at the time.

Mr Li’s description of the incident on 10 June 2016 was inconsistent with the notification of injury form. Mr Li’s evidence was that he was called to assist his boss who was trying to transport a bundle of heavy metal poles, measuring about 15m in length as well as a bundle of metal plates on a forklift. The notification of injury form referred to one 6m length of square hollow section falling on Mr Li’s foot. However, Mr Li’s evidence was that the heavy metal products dropped directly onto his right foot.
Mr Li’s evidence was that, when his foot was struck by the heavy metal products that had dropped on it, he felt immediate pain in his right foot and toes. He then tried to pull his foot away from the heavy metal bundle and experienced pain, discomfort and stiffness in his right knee. Mr Li made no reference to an injury, pain or discomfort in his right ankle or right hindfoot at the time or shortly after the incident in his evidentiary statement. The notification of injury form made no reference to an injury to Mr Li’s right ankle, right hindfoot or right knee. However, I do not place much weight on the notification of injury form as it is not apparent who completed the form and in what circumstances.
Mr Li’s evidence was that, on arriving home from work on 10 June 2016, his wife drove him to Fairfield Hospital. On arrival at the hospital, his evidence was that there was acute pain in his right foot and that he also noticed pain in his right knee. Mr Li’s Fairfield Hospital clinical records are not in evidence.
On 11 June 2016, Mr Li consulted Dr Lam at Bonnyrigg Family Medical Centre. Mr Li’s Bonnyrigg FMC clinical records are in evidence and the first entry is that of 11 June 2016. In that entry, there was no reference to Mr Li having suffered a right ankle, right hindfoot or right knee injury in the incident at work on the previous day. The incident description did not include Mr Li’s attempt to extract his right foot from under the metal pipes, twisting his right knee and causing pain, discomfort and stiffness in his right knee. Dr Lam recorded the four toe fractures, severe bruising of the foot and tenderness in the dorsal foot.
The entry in the Bonnyrigg FMC clinical records on 17 June 2016 recorded by a physiotherapist referred to Mr Li’s inability to move his ankle and toes as well as complaints of whole body pain. However, there was no reference to the right ankle having been injured on 10 June 2016.
There was no record of an injury to Mr Li’s right ankle or right hindfoot on 10 June 2016 in the Bonnyrigg FMC clinical records.
The first reference to symptoms in Mr Li’s right knee appeared in the Bonnyrigg FMC clinical records in the entry dated 14 January 2017, some six months after the subject incident at work. The clinical records recorded that Mr Li complained of his right knee being weak and near collapse; reduced sensation; hypersensitivity; and frequent near falls.
Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga;[74] and applied in King v Collins[75] and Mastronardi v State of New South Wales.[76] Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[77]
[74] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[75] King v Collins [2007] NSWCA 122.
[76] Mastronardi v State of New South Wales [2009] NSWCA 270.
[77] Mason v Demasi [2009] NSWCA 227.
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard in respect of Mr Li’s Bonnyrigg FMC clinical records and considered the evidence relating to the disputed injuries.
On 24 June 2016, Dr Lam reported to GIO that Mr Li consulted him on 11 June 2016 and provided a history that he was strapping to assist a forklift when a metal pipe, weighing a few hundred kilograms, dropped on his right foot and caused him to fall backwards. The incident description did not include Mr Li’s attempt to extract his right foot from under the metal pipes, twisting his right knee and causing pain, discomfort and stiffness in his right knee. There was no reference to Mr Li having suffered a right ankle, right hindfoot or right knee injury in the incident at work. The history of Mr Li having had to jump up and try and get away from the forklift and twisting his right knee only appeared in Dr Lam’s report dated 26 May 2017, some 11 months later.
On 6 July 2016, Mr Li underwent a whole of body bone scan that revealed traumatic fractures at the right second, third and fourth toes involving the distal phalanges; no stress fractures in the right big toe; moderately severe arthritis at the patellofemoral compartment of the left knee; and no abnormality at the right thoracic cage/rib. There was no evidence of an increased uptake in the right ankle, right hindfoot or right knee.
There are no medical imaging reports in evidence disclosing an injury to Mr Li’s right ankle or right hindfoot. However, the Medicare notice of charge dated 30 January 2021 recorded that Mr Li had undergone medical imaging of either his foot, ankle, leg, knee or femur on 2 August 2016, 13 September 2016, 1 February 2018, 10 April 2019, 21 January 2020, 14 April 2020 and 21 September 2020. None of those medical imaging reports are in evidence, yet Mr Li has declared that they are related to the subject work incident.
There are a number of references in the Bonnyrigg FMC clinical records to consultations with Dr Kuo, Mr Li’s treating orthopaedic surgeon. There is also a reference to Dr Kuo in Mr Li’s evidentiary statement. However, there are no clinical records or reports in respect of Mr Li from Dr Kuo in evidence.
On 7 October 2016, some four months after the subject incident, Dr Chase took a history from Mr Li that, on 10 June 2016, a 15m long metal pole and three 8m long metal plates were being lifted in a sling by a forklift when they were dropped on Mr Li’s right foot. He could not get his boot out. He was wearing steel capped boots. Eventually, the metal was lifted up. Dr Chase did not record that Mr Li attempted to pull his foot away from the heavy metal bundle. Dr Chase did not note that Mr Li had complained of a frank injury to the right ankle, right hindfoot or right knee on 10 June 2016.
On 1 March 2017, Dr Griffith took a history from Mr Li that he had suffered a crush injury in June 2016 at work when a 50m (clearly an error) steel pole he was supporting suddenly dropped onto his right foot. The steel pole was removed by other workers and he was then taken to Fairfield Hospital. Dr Griffith did not record that Mr Li attempted to pull his foot away from the steel pole. Dr Griffith did not note that Mr Li had complained of a frank injury to the right ankle, right hindfoot or right knee on 10 June 2016.
The first reference to an injury to the right ankle in Mr Li’s evidentiary statement was when he referred to his right knee giving way suddenly in April 2017 causing him to injure his right ankle, right knee and lower back.
On 25 July 2017, Dr Chin reported that Mr Li presented with anterior right knee pain and complained that his right knee was giving way, which had occurred over the past two months since going from using two crutches to using one crutch. Dr Chin noted that Mr Li had sustained a workplace related right foot fracture that had been managed conservatively. Dr Chin made no reference to Mr Li reporting a frank injury to the right ankle, right hindfoot or right knee in the incident at work.
On 21 August 2017, Messrs Pethybridge and Boudville, podiatrists, amongst other things, reported that palpation reproduced pain on the first, second, third and fourth metatarsal heads both dorsally and plantarly. Pain was present with plantar flexion and dorsi flexion of the metatarsal phalangeal and interphalangeal joints. Intermetatarsal palpation caused significant discomfort, as well as palpation of both the medial and lateral ankle ligaments. This ankle pain was more likely a direct result of Mr Li’s altered weight-bearing and inhibitions on load-bearing of the forefoot region.
On 11 September 2017, Dr Griffith opined that Mr Li’s nerve conduction studies on 9 September 2017 demonstrated a stable mild peripheral neuropathy, which he suspected was a reflection of his NIDDM. Dr Griffith opined that Mr Li would need to closely monitor his diabetes, which he felt was responsible for his peripheral neuropathy.
On 23 March 2018, Dr Griffith reported that he had reviewed Mr Li, who had complained of a worsening in his condition and reported subjectively a reduction in light touch sensation distal to the right ankle. Dr Griffith opined that some of Mr Li’s sensory symptoms were suspected to be related to his mild diabetic peripheral neuropathy. Dr Griffith was satisfied that there was nothing sinister neurologically.
On 27 August 2018, Mr Li consulted Dr Yu in respect of a work injury in June 2016 and the development of right knee and right foot pain. Dr Yu noted that a heavy object had dropped onto Mr Li’s right foot and that he had sustained closed fractures of the second, third and fourth distal phalanges. Dr Yu did not note that Mr Li had complained of a frank injury to the right ankle, right hindfoot or right knee on 10 June 2016.
On 23 April 2019, Mr Li consulted Dr Lee who took a history from Mr Li that he was injured at work on 10 June 2016 when some long poles and metal pipes measuring about 15m dropped and crushed his right foot. He tried to pull his foot out forcefully and twisted his knee. Dr Lee diagnosed fractures of the second, third and fourth toes of the right foot. The fractures had healed but Mr Li was still in pain and there was stiffness in the right foot and right ankle. As a result of Mr Li’s limp and the twisting of his knee at the time of injury, he aggravated the underlying asymptomatic degenerative condition in his right knee. Dr Lee did not report that Mr Li had sustained any frank injury to his right ankle or right hindfoot.
On 9 March 2021, Dr Dias took a history from Mr Li that on 10 June 2016 heavy metal poles and plates fell from the tynes of a forklift directly onto his foot and when he yanked his right foot away from the heavy metal bundle, he felt pain in his right foot, right ankle and right knee, with the most severe pain over his right forefoot and in the toes of his right foot. Accepting that Mr Li had yanked his right foot away from underneath the heavy metal bundle, Dr Dias diagnosed chronic right ankle/hindfoot pain secondary to an acute soft tissue impaction injury and an aggravation of a previously asymptomatic right knee osteoarthritis secondary to an acute soft tissue injury and prolonged altered gait mechanics as a result of his right foot/ankle injury. On examination, amongst other things, Dr Dias observed them to be normal. There was no evidence of swelling or oedema noted on inspection of the right foot or the right ankle. There were no vasomotor or sudomotor changes on inspection of the right foot in the right ankle region. Movements of the right ankle and the right hindfoot were limited in all planes due to significant pain and discomfort.
On 31 May 2021, Mr Li again consulted Dr Chase. On examination, Dr Chase observed, amongst other things, that there was mild tenderness of the medial and lateral components of the right ankle but that there was no instability. There was a full range of motion in all toes. There was a full range of motion in the right foot and no evidence of vasomotor or sudomotor changes in the right lower limb. There had never been any evidence of lower limb muscle wasting. Dr Chase opined that there was no evidence of injury to Mr Li’s right hindfoot or right ankle and that there was no evidence of injury to Mr Li’s right knee as a result of the fractures to his right foot.
On 1 July 2021, Dr Chase noted that, in the light of the treating podiatrists’ observation of discomfort in Mr Li’s ankle ligaments and ankle pain, he would accept that, if Mr Li had biomechanical problems in the right foot, he could have had right ankle symptoms as a result of the accepted right forefoot injury. However on neither of his two physical examinations could he find evidence of an ankle injury.
On 23 February 2022, Dr Chase noted that both Dr Lee and Dr Dias were of the opinion that Mr Li sustained an injury to his knee at the time of the injury to his right foot. Dr Chase disagreed with that opinion but noted that their opinions were likely based on the history given to them by Mr Li some years after the injury. Dr Chase observed that his assessment four months after the right foot injury was much closer in time to 10 June 2016 and therefore, likely to be a far more accurate reflection of the symptoms at that time. I accept Dr Chase’s observations in this regard.
Understandably, Dr Lee and Dr Dias accepted the history provided to them by Mr Li that he tried to pull or yank his foot out forcefully from under the load that had fallen onto his foot and twisted his right knee and injured his right ankle. I do not accept that version of events by Mr Li. Such version appeared for the first time many months following the incident on 10 June 2016 in the report of Dr Lam dated 26 May 2017. That is not to impugn Mr Li’s credit but rather, aligns within the observations of McLelland CJ in Watson v Foxman.
It is well established in the authorities such as Paric, Hancock and South Western Sydney Area Health Service v Edmonds[78] (Edmonds) that there must be a “fair climate” upon which a doctor can base an opinion. I find that there was no such fair climate for each Dr Lee and Dr Dias. Neither of them had a proper basis on which to express their views in respect of the alleged frank injuries to the right ankle, right hindfoot and right knee on 10 June 2016 because of that part of Mr Li’s history that I have rejected.
[78] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
Mr Li’s counsel invited me to speculate as to whether there was some masking of the alleged frank injuries to the right ankle, right hindfoot and right knee due to medication or masking due to the fractures to the toes. There was no medical evidence in this regard. Nor was there any evidence from Mr Li in this regard. The submission amounted to speculation and accordingly, I reject it.
It is for the reasons stated above that I prefer the evidence of Dr Chase over the evidence of Dr Lee and Dr Dias that there were no frank injuries to Mr Li’s right ankle, right hindfoot and right knee on 10 June 2016.
Accordingly, for the reasons stated above, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Li has established that he sustained injuries to his right hindfoot, right ankle and right knee arising out of or in the course of his employment with Fusun on 10 June 2016 within the meaning of s 4(a) of the 1987 Act.
However, I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Li has established that he suffered fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot (the dorsum of the foot) arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of ss 4(a) and 9A of the 1987 Act.

Was there a consequential condition of the right knee as a result of the injuries on 10 June 2016?

Again, the onus of establishing a consequential condition as a result of an injury falls on Mr Li and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Ireland and Nguyen.
I am required to conduct a common sense evaluation of the causal chain to determine whether the right knee symptoms complained of by Mr Li have resulted from the injuries to the first, second, third and fourth distal phalanges of the right foot and his right forefoot on 10 June 2016: Kooragang. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form: Munce v Thomson Cool Rooms Pty Ltd[79] (Munce).
[79] Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 at [101].
Mr Li’s evidence was that he used to do some home-based exercises to strengthen his right foot. Whenever he did so, he used to fall on his right knee. On one occasion he was doing squats and after two squats, fell down on his side and felt acute pain in his right knee.
On 14 January 2017, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li complained of his right knee being weak and near collapse; reduced sensation; hypersensitivity; and frequent near falls. Dr Lam referred Mr Li to Dr Griffith.
On 1 March 2017, Dr Griffith noted that Mr Li reported poor balance and having fallen in the bathroom a few times.
On 6 March 2017, Mr Li consulted Dr Chau of the Bonnyrigg Family Medical Centre advising that he had fallen on the previous day. Dr Chau observed a large graze to the lateral aspect of the right ankle area and the right lateral forearm.
On 8 March 2017, Mr Li consulted Dr Lam, who recorded in the Bonnyrigg FMC clinical records that Mr Li had fallen the other day due to right leg weakness. This was likely to have been the fall Mr Li described to Dr Chau on 6 March 2017.
Mr Li’s evidence was that, in about April 2017, whilst trying to walk in his home using his hands on the walls for support, his right knee suddenly gave way and he injured his right ankle and right knee. On another occasion whilst walking with the assistance of his walking boot and crutches on the lawn at home near the concrete driveway, his right knee gave way again. He fell on the driveway and injured his right foot and lower back. He observed scratches and bruising on his right knee.
On 24 April 2017, Mr Li underwent an MRI scan of his right knee that demonstrated significant patellofemoral compartment chondromalacia as well as focal full-thickness chondral loss involving the medial femoral condyle; joint effusion and large popliteal cyst; and multiple intra-articular loose bodies.
On 25 July 2017, Dr Chin reviewed the recent MRI scan of the right knee and opined that Mr Li had chronic disuse of the right leg due to the right foot fracture that had caused his quadriceps to weaken. The giving way of his right knee was not unusual secondary to the anterior knee pain and the weakened quadriceps. However, the Baker’s cyst was likely secondary to a rent in the posterior capsule with or without a meniscus tear. The increased fluid production in the knee was secondary to his arthritis.
On 21 August 2017, Mr Li’s treating podiatrists reported that podiatric examination revealed that Mr Li stood with an externally rotated knee position; had a reduced medial longitudinal arch height with a tendency to over-pronate; non-weight-bearing lesser digits of the right foot; and sprayed first and second digits of the right foot. He walked with a slow antalgic limp, vertical heel contact with clawing of the lesser digits on the left foot and the right first to fourth digits did not make any ground contact. They opined that Mr Li’s ongoing symptoms were consistent with the injury he suffered at work but they were perplexed by his lack of functional improvement and ongoing pain.

In about early 2018, Mr Nguyen, physiotherapist, described Mr Li’s presenting problem as chronic knee pain secondary to work-related trauma. Mr Li reported instability with mobilising and frequent falls due to his knee giving way spontaneously. Mr Li also reported posterior knee pain with a palpable lump. Mr Nguyen’s impression was one of a possible meniscus tear and/or Baker’s cyst.
On 22 February 2018, Dr Chin reported that Mr Li had returned to see him complaining of increasing and ongoing pain in the right knee and that the knee had given way on him numerous times leading to a stumble or a fall. Dr Chin confirmed that Mr Li had severe patellofemoral joint arthritis, moderate medial compartment arthritis, a large effusion and a large Baker’s cyst. He opined that Mr Li would benefit from a right total knee replacement.
On 23 March 2018, Dr Griffith reported that Mr Li reported a worsening in his condition, in that, he had experienced a number of falls and had now injured his right knee.
On 27 August 2018, Dr Yu reported that, following the injury at work in June 2016, Mr Li wore a boot for about 1.5 years and developed a moderate sharp pain in his right knee in 2017 when he started using a crutch. Dr Yu noted that a psychometric screening test suggested that Mr Li had extremely severe depression, anxiety and stress and that he suffered from severe catastrophising, severe fear avoidance and significant low self-efficacy.
The evidence of Mr Li and the histories in medical reports in respect of the length of time Mr Li had spent in a CAM boot varied.
On 29 August 2019, Dr Chin reported that Mr Li had developed quadriceps wasting due to the chronic pain in his right foot. Dr Chin noted that Mr Li had underlying arthritis in his patellofemoral compartment and medial compartment and stated that it was not uncommon for a pre-existing condition to be made worse by a subsequent injury. If it were only the fall onto his right knee, he may have required a total knee replacement at a much later time. Unfortunately, with this injury and his knee giving way, it stirred up his underlying arthritis necessitating a progression towards right total knee replacement surgery. However, importantly, Dr Chin opined that the underlying arthritis was certainly significant enough to warrant a total knee replacement.
On 9 March 2020, Mr Li underwent a right total knee replacement by Dr Chin.
When Dr Chase examined Mr Li on 7 October 2016, he observed, amongst other things, a full range of motion in both knees. There was crepitus in both knees but no effusions, no tenderness and no instability.
When Dr Chase examined Mr Li on 24 April 2017, he observed that, amongst other things, he walked with a stiff legged gait. Measurements of the lower limbs showed that both thighs measured 44.5cm, the right calf measured 36.8cm and the left calf measured 36cm. There was no evidence of wasting, swelling, redness or vasomotor or sudomotor changes. The patterns of wear and tear on both feet were the same and heavy. A full range of motion was demonstrated in both knees, though there was bilateral crepitus but no effusion or instability.
On 29 May 2017, Dr Chase opined that the arthritis in Mr Li’s right knee was in no way related to the right foot injury. The right knee condition was entirely degenerative. It was not plausible that the right foot injury would have aggravated or accelerated the osteoarthritis in the knee. Further, in view of the severity of arthritis demonstrated on the bone scan, Mr Li’s knee would have become symptomatic at some stage.
When Dr Lee examined Mr Li’s right knee on 23 April 2019, he observed diffuse tenderness in the right knee without ligamentous laxity. Both thighs measured 46cm at 10cm above the patella. Active range of motion in the knees on flexion was 110° on the right and 125° on the left. Active range of motion in the knees on extension was -15° (flexion contracture) on the right and -5° (flexion contracture) on the left. Dr Lee opined that as a result of Mr Li’s limp and the twisting of his knee at the time of injury, he aggravated the underlying asymptomatic degenerative condition in his right knee. Further, Dr Lee opined that but for the injury on 10 June 2016, Mr Li would still have required a right total knee replacement but not until he was aged between 60 years and 65 years. The injury at work brought forward the need for the right total knee replacement surgery by about 5 to 10 years.
On 9 March 2021, Dr Dias opined that Mr Li had sustained an injury to his right knee on 10 June 2016 when he yanked his right foot away from the heavy metal bundle. He also opined that Mr Li’s right knee was further aggravated in 2017 due to altered gait patterns associated with his right foot/ankle injury. He noted that Mr Li recalled that his right knee became increasingly unstable from 2017 onwards resulting in multiple falls. On examination of Mr Li’s right knee, Dr Dias observed Mr Li was tender to palpation in the infrapatellar region of the right knee and over the medial joint line of his right knee. He was unable to fully extend his right knee, falling 5° short of full extension due to pain and discomfort. Flexion of the right knee was limited to 100°. There was no evidence of ligamentous laxity on testing for the integrity of the cruciate and collateral ligaments. Alignment of the right knee appeared to be within normal limits. This examination took place some 12 months after the right total knee replacement. Amongst other things, Dr Dias opined that Mr Li had a persistent aggravation of a previously asymptomatic right knee osteoarthritis, secondary to a combination of an acute soft tissue injury on 10 June 2016 and prolonged altered gait mechanics as a result of his right foot/ankle injury.
On 1 July 2021, Dr Chase, when commenting on the report of the treating podiatrists dated 21 August 2017, stated that it was plausible that Mr Li may have had weakness in the tibialis posterior and perineal muscle complexes at that time but he observed that was three years ago. The lower limb weakness could be due to disuse and/or due to the right knee osteoarthritis. In respect of Dr Chin’s observation of chronic disuse of the right leg resulting in quadriceps weakening leading to giving way symptoms in the right knee, Dr Chase pointed out that it was equally plausible that the weakness was due to the underlying osteoarthritis in the knee, which was unrelated to the foot fracture. Further, Dr Chase found no evidence of wasting in the thighs or calves on the two occasions that he examined Mr Li.
On 17 December 2021, Dr Dias opined that Mr Li’s right knee condition arose from a combination of factors. Those factors included the trauma of the incident on 10 June 2016; prolonged altered gait patterns as a result of the significant right foot and right ankle injury; the consequential falls on the right knee from 2017 onwards.; weightbearing difficulties; the prolonged use of the CAM boot; and the prolonged use of crutches.
On 23 May 2022, Dr Dias opined that Mr Li’s significant right foot injury on 10 June 2016 resulted in prolonged altered gait patterns, prolonged use of crutches and prolonged use of a CAM boot for several months following the accident. This resulted in the development of quadriceps muscle wasting in his right thigh region as a consequence of his right foot condition and chronic right knee patellofemoral instability. Such instability resulted in multiple falls and recurrent exacerbations or aggravations of a previously asymptomatic degenerative condition in his right knee. It ultimately culminated in the need for the right total knee replacement procedure that took place on 9 March 2020.
I have concerns about the reliability of some of Mr Li’s evidence for the reasons previously stated.
The Bonnyrigg FMC clinical records disclosed Mr Li complaining of a constellation of symptoms since his first consultation with Dr Lam on 11 June 2016. The symptoms included those listed in his evidentiary statement as well as whole-body pain (top to bottom); whole of back pain; right trapezius pain; right posterolateral chest pain; flashbacks and nightmares relating to the work-related incident on 10 June 2016; an inability to relax; a fear of being injured; avoidance of danger; low mood; hypertension; morning dizziness; blurry vision; feelings of weakness and lack of energy; and peripheral neuropathy for which Dr Griffith felt NIDDM was responsible.
There was a noticeable lack of detail surrounding the circumstances of Mr Li’s alleged numerous falls due to his right knee giving way. The Bonnyrigg FMC clinical records entry dated 6 March 2017 recorded a fall that had resulted in grazes to the lateral aspect of the right ankle and the right forearm. The entry dated 8 March 2017 stated that the fall had occurred due to right leg weakness. The entry in the clincal records dated 22 May 2017 recorded a fall in Mr Li’s backyard that had resulted in a laceration to his right knee. On examination by Dr Tran, there was a full range of motion. The entry in the clincal records dated 24 July 2017 recorded weakness in Mr Li’s right leg that caused him to collapse and fall at home resulting in a laceration to the right knee.
Dr Chase examined Mr Li on three occasions. Two of those examinations took place prior to Mr Li’s right total knee replacement. In none of those examinations did Dr Chase find evidence of muscle wasting. In the two examinations prior to the right total knee replacement he found a full range of motion in both knees, no effusions, no tenderness and no instability. The second examination of Mr Li on 24 April 2017 took place some three months after Mr Li first reported right knee instability and near falls to Dr Lam.
Whilst Dr Chin reported on 29 August 2019, that Mr Li had developed quadriceps wasting due to the chronic pain in his right foot. He made it clear that the underlying arthritis was certainly significant enough to warrant a total knee replacement at that stage.
Again, I prefer the opinions and conclusions expressed by Dr Chase over those expressed by Dr Lee and Dr Dias for the reasons explained below.
Dr Lee opined that as a result of Mr Li’s limp and the twisting of his knee at the time of injury, he aggravated the underlying asymptomatic degenerative condition in his right knee. Dr Lee, in part, based his opinion on a history that I have rejected, that is, that Mr Li sustained a frank injury to his right knee on 10 June 2016.
On 9 March 2021, Dr Dias examined Mr Li about one year after the right total knee replacement surgery and opined that Mr Li sustained a persistent aggravation of a previously asymptomatic right knee osteoarthritis secondary to a combination of an acute soft tissue injury sustained on 10 June 2016 and prolonged altered gait mechanics as a result of the foot and ankle injury on that date. The first of those factors was based on a history that I have rejected, that is, that Mr Li sustained a frank injury to his right ankle and right knee on 10 June 2016.
On 17 December 2021, Dr Dias opined that Mr Li’s right knee condition arose from a combination of factors. Those factors included the trauma of the incident on 10 June 2016; prolonged altered gait patterns as a result of the significant right foot and right ankle injury; the consequential falls on the right knee from 2017 onwards; weightbearing difficulties; the prolonged use of the CAM boot; and the prolonged use of crutches. The first of those factors was based on a history that I have rejected, that is, that Mr Li sustained a frank injury to his right ankle and right knee on 10 June 2016.
Dr Dias did not refer to the consequential falls on the right knee, weight-bearing difficulties, prolonged use of the CAM boot and the prolonged use of crutches as being relevant factors in his report dated 9 March 2021. I found Dr Dias’ evidence unconvincing, in that, he fell short of sufficiently exposing his actual path of reasoning that led to his conclusion. I am not satisfied that Mr Li’s right knee condition arose from the combination of factors referred to by Dr Dias in his reports dated 9 March 2021 and 17 December 2021.
I find that Mr Li had significant osteoarthritis in the right knee prior to the work-related incident on 10 June 2016. I am not satisfied, for the reasons stated above, that Mr Li sustained a consequential condition in the form of an aggravation of his osteoarthritic right knee as a result of the injuries sustained to his forefoot on 10 June 2016. I find that Mr Li’s osteoarthritic right knee became symptomatic as part of the natural progression of the osteoarthritic condition that included sensations of weakness, giving way, pain, discomfort and restriction.
The need for Mr Li’s right total knee replacement surgery on 9 March 2020 was the progression of the osteoarthritic condition in his right knee.
On the evidence, I find there was a want of sufficient causal connection to the condition of Mr Li’s right knee to the injuries to the first, second, third and fourth distal phalanges of the right foot and his right forefoot on 10 June 2016.
Accordingly, applying a common sense test and for the reasons referred to above, I am not satisfied that Mr Li has discharged the onus of proving on the balance of probabilities that there is a sufficient causal connection to the condition of his right knee to the injuries to the first, second, third and fourth distal phalanges of the right foot and his right forefoot on 10 June 2016 and I find accordingly.

Entitlement to lump sum compensation under s 66 of the 1987 Act

On 2 August 2023, I directed Mr Li to lodge and serve by 9 August 2023 written submissions in respect of Dr Dias’ various assessments of whole person impairment of his right lower extremity. I directed Fusun to lodge and serve by 16 August 2023 written submissions in reply.
Mr Li provided his written submissions in an AALD dated 3 August 2023.
Fusun provided its written submissions in an AALD dated 16 August 2023.
Mr Li relied on the evidence of Dr Dias to support his claim for permanent impairment.
Both Dr Dias and Dr Chase assessed Mr Li’s lumbar spine at 0% WPI.
Due to the findings I have made, Mr Li’s right knee is not to be assessed for WPI.
Excluding the right knee, Dr Dias assessed Mr Li’s lower extremity impairment as follows:
(a)    right forefoot: 10%;
(b)    right ankle: 22%, and
(c)    right hindfoot: 7%.
In their written submissions, the parties agreed that, individually, the lower extremity impairment in respect of the right forefoot converted to a 4% WPI; the lower extremity impairment in respect of the right ankle converted to a 9% WPI; and the lower extremity impairment in respect of the right hindfoot converted to a 3% WPI.
Dr Chase opined that there was no evidence of any frank injury to Mr Li’s right ankle. However, the treating podiatrists referred to discomfort in Mr Li’s ankle ligaments and ankle pain. In his report dated 1 July 2021, Dr Chase accepted that, if Mr Li had biomechanical problems in his right foot, then he would consider that his right ankle symptoms were as a result of the accepted right forefoot injury. I accept that Mr Li had biomechanical problems in his right foot and I accept that he had symptoms in his right ankle as a result. Any impairment to the right ankle should also be assessed.
Dr Dias assessed Mr Li’s right ankle condition using the range of motion impairment estimates. Dr Dias also assessed Mr Li’s right hindfoot loss of range of movement using the range of motion impairment estimates. Excluding the right ankle, there was no reference to a right hindfoot loss of range of movement or other symptoms by the podiatrists or other treating medical practitioners. I do not accept that, excluding the right ankle, there were symptoms in Mr Li’s right hindfoot.
Having made the above findings, Dr Dias’ assessment of Mr Li’s lower extremity impairments of the right forefoot and the right ankle exceed the WPI threshold for permanent impairment compensation. According to Fusun’s written submissions the lower extremity impairments combined convert to a 12% WPI. Accordingly, I will remit the matter to the President for referral to a Medical Assessor of the Commission to assess Mr Li’s WPI.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 523

4 October 2023