Malone v Hunter Recruitment Solutions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Malone v Hunter Recruitment Solutions Pty Ltd [2024] NSWPIC 713
APPLICANT:	Ricky Malone
RESPONDENT:	Hunter Recruitment Solutions Pty Limited
MEMBER:	Fiona Seaton
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; undisputed right ankle injury, disputed complex regional pain syndrome and consequential lumbar spine condition; Held – whether the applicant has complex regional pain syndrome to be determined by a Medical Assessor; applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. Whether the applicant has a rateable diagnosis of complex regional pain syndrome (CRPS) is a matter for assessment by a Medical Assessor. 2. The applicant has sustained a consequential lumbar spine condition as a result of the accepted right ankle injury of 25 November 2018. The Commission orders: 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows; Date of injury: 25 November 2018. Body systems/parts: right lower extremity (ankle), including CRPS referable to the right ankle injury, if the diagnostic criteria for the CRPS are present, lumbar spine (consequential injury). Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Ricky Malone was employed by the respondent Hunter Recruitment Solutions Pty Limited as a construction supervisor at the Westconnex site at Arncliffe. On
25 November 2018 the applicant was working on the night shift in a tunnel approximately
40m underground. He stood on the side of a hob to check access for removing a steel platform and as he grabbed a column to pull himself up he slipped and fell sideways and injured his right ankle. He also alleges he has developed complex regional pain syndrome (CRPS) and pain in his lower back.
The respondent issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 27 September 2024. While liability for the applicant’s right ankle injury is accepted, CRPS and a consequential lumbar spine condition are disputed.
An Application to Resolve a Dispute (ARD) was lodged with the Personal Injury Commission (Commission) on 2 October 2024. The applicant brings a claim for lump sum compensation for 43% whole person impairment for the right lower extremity, lumbar spine and chronic pain.
The dispute was listed for conciliation conference and arbitration hearing for determination of whether the applicant has sustained CRPS and a consequential lumbar spine injury. The respondent agrees the right lower extremity (ankle) injury is to be referred for medical assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained CRPS as a result of the accepted right ankle injury of 25 November 2018, and
(b) whether the applicant has sustained a consequential lumbar spine condition as a result of the accepted right ankle injury of 25 November 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 28 November 2024. Mr Phillip Perry appeared for the applicant instructed by Mr David Hartstein of Taylor & Scott Lawyers. Mr Brendan Jones appeared for the respondent instructed by Ms Eloise Cotchett of Hall & Wilcox Lawyers. Mr Tanilon was present for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

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

Applicant’s evidence

The applicant relies on his statement signed on 30 September 2024.
The respondent, a labour hire company, employed the applicant as a construction supervisor. At the time of his injury he was working at the Westconnex site at Arncliffe. When he worked on the day shift the applicant was the leading hand and on night shift he was the supervisor.
On 25 November 2018 during the night shift he was supervising a team taking out 16m long steel platforms after a concrete pour over a large void about 30m in diameter. They were working in a tunnel approximately 40m underground. To remove the second platform they needed proper access to get over concrete hobs and despite a conversation a day or two beforehand there was no appropriate access arranged such as a scaffold of stairs.
There was a lot of pressure to complete the job. The applicant told the other team members he would check out the access. He put his foot on the side of a hob and grabbed a column to pull himself up. He slipped and fell sideways landing on a piece of detached handrail and in the process suffered a significant injury to his right ankle.
The applicant was in a lot of pain. He was taken by ambulance to St George Hospital where he was told after X-rays that it was only a sprain. His ankle was bandaged and he was discharged using crutches. He attempted to return to work the next day but was unable to weight bear on his right foot. He was put off work and has been unable to work since.
He consulted Dr Vickers, general practitioner, on 29 November 2018 who referred him for an X-ray and CT scan of the right ankle and foot as well as for physiotherapy. The doctor recommended immobilisation for six weeks in a cast and prescribed anti-inflammatories.
On 10 December 2018 Dr Vickers referred the applicant for an MRI and to Dr Rao, orthopaedic specialist.
On 26 February 2019 Dr Rao diagnosed a right ankle avulsion fracture and prescribed Panadol, Mobic and massage therapy for the swelling.
Dr Rao carried out investigations including nerve conduction studies for ongoing pain and swelling in the applicant’s right foot and ankle which extended up his right lower leg. He arranged for a series of platelet rich plasma and cortisone injections and he carried out nerve releases and other procedures to stabilise the ankle. Dr Rao carried out six procedures at Lingard Private Hospital between 2019 and 2022.
The applicant consulted Dr Simon Tame, pain specialist, on Dr Rao’s recommendation for nerve pain in his right ankle and foot. Dr Tame told the applicant he was suffering with CRPS arising out of injury to the sural nerve. He arranged for the applicant to see an exercise physiologist and a psychologist specialising in people suffering with severe pain.
Dr Tame carried out three injections into the applicant’s back to try to improve the nerve pain but these made no real difference. Dr Tame’s opinion was that the pain the applicant was experiencing in his knees and left ankle was contributed to by his posture and gait due to the right ankle injury and the weight he put on because he cannot move or exercise properly as a result of his right leg pain. Dr Tame also carried out nerve blocks in the right ankle.
The insurer agreed to Dr Tame’s recommendation in 2023 for the trial of a spinal cord stimulator to help relieve pain in his right ankle and foot and the other pain he was experiencing. The trial was successful and the applicant is waiting for approval for the permanent implantation of a spinal cord stimulator.
The applicant continued to consult Dr Vickers until about 2022. He mainly consults Dr Joel Wenitong, general practitioner, at Ungooroo Aboriginal Corporation GP & Health Services.
He continues to suffer with significant pain in his right foot and ankle extending up into the right calf, as well as significant ongoing pain in his low back and left ankle and in his knees. He has pain in his left elbow and both shoulders from using his arm to help him get out of his seat and from overuse due to his injury.
Standing or walking for more than short periods, climbing up and down stairs and walking on uneven ground severely aggravates his right ankle pain. He cannot wear proper shoes because of the pain in his right foot.
The applicant has been unable to return to work apart from making a few attempts.
A permanent impairment claim was lodged by the applicant on 9 April 2024 claiming 43% whole person impairment for the right lower extremity (ankle), CRPS and lumbar spine relying on the reports of Dr Richmond and Dr Isaacs.

Dr Trudi Richmond, pain medicine specialist

Dr Trudi Richmond, pain medicine specialist, provides an independent medico-legal report dated 11 November 2023.
Dr Richmond’s opinion is that the applicant meets the criteria for right lower limb CRPS type 2 and that no other diagnosis better explains his presentation. Without the injury on
25 November 2018 the applicant could not have developed his current symptoms and the development of CRPS is a direct result from that injury.
The applicant’s right lower limb CRPS has reached maximum medical improvement and
Dr Richmond made an assessment of 39% whole person impairment.
In her supplementary report of 8 May 2024 Dr Richmond combined Dr Isaacs’ assessment of 6% whole person impairment of the lumbar spine with her assessment to find 43% whole person impairment.

Dr Abe Isaacs, orthopaedic surgeon

Dr Isaacs, orthopaedic surgeon, provides an independent medico-legal report dated
14 February 2024.
Dr Isaacs diagnoses an inversion injury to the right ankle with scarring and a consequential injury to the lower back/aggravation of L5/S1 disc and lumbar spondylosis.
The doctor records the applicant telling him that because of the persistent pain in his right foot and ankle he has been walking with a limp, his gait has changed and he has developed pain in the left ankle, both knees and both hips as well as the lower back.
In Dr Isaacs’ opinion the events on 25 November 2018 are the substantial contributing factor to the injury and all the applicant’s symptoms in the right ankle and other body parts including the lower back have developed after the injury and treatment following the right ankle.
The doctor’s assessment of whole person impairment is 30% for the right ankle – CRPS and 6% for the lumbar spine which when combined total 34% whole person impairment.

Dr Pankaj Rao, treating orthopaedic surgeon

Dr Rao’s reports from 5 March 2019 to 23 March 2023 are attached to the ARD.
Dr Rao reports on the treatment provided for the applicant’s right ankle injury including radiological investigations, deep vein thrombosis examination, duplex scan, nerve conduction studies, injections and surgeries.
On 27 July 2020 Dr Rao notes the applicant has had two ankle operations and on both occasions he initially did very well but then went backwards. He developed bruising around his ankle and also some sural nerve symptoms and he struggles with a lot of calf pain.
Dr Rao organised nerve conduction studies and arterial and venous studies of the applicant’s calf as the doctor thinks there is something else possibly going on to contribute to his problems.
The findings of nerve conduction studies on 6 August 2020 are compatible with right sural nerve dysfunction.
There are reports of 5 April 2019 for right ankle cortisone injection, 24 June 2019 for right ankle stabilisation surgery, 2 December 2019 for right ankle steroid injection, 13 March 2020 for revision reconstruction surgery, 25 September 2020 for superficial peroneal and sural nerve release, and 13 October 2022 for right ankle stabilisation.
In relation to the applicant’s lower back condition, Dr Rao comments on 16 June 2020 that he had injured his back, more than likely due to increased loading he has had on his ankle, and unfortunately he twisted his back about a week ago and now has some ongoing lower lumbar pain.
Dr Rao says “I believe his back condition is due to his ankle surgery, recovery and rehabilitation from that.”[1]
[1] ARD page 87.
On 16 August 2021 Dr Rao refers the applicant to Dr John Estens, orthopaedic surgeon, for a further opinion and review of his right ankle issues, including the development of neuropathic pain, and his right knee.
Dr Rao reports on 8 December 2021 that Dr Estens agrees there is no real need for any more surgery on the applicant’s right ankle and it is more than likely that neuropathic and CRPS-related issues are causing the problems with the right ankle.
On 4 May 2022 Dr Rao notes the request for a spinal cord stimulator has been rejected pending the outcome of potential radiofrequency treatment. In Dr Rao’s opinion the spinal cord stimulator may be of tremendous benefit to help address neuropathic pain.
On 22 July 2022 Dr Rao provides a report regarding treatment of the right ankle injury which includes that the applicant was starting to develop a lot of neuropathic pain after the revision surgery in April 2020 assessed by Dr Tame, and that a spinal cord stimulator will help with nerve pain.

Dr Simon Tame, treating pain management physician

On 25 September 2020 Dr Tame reports to Dr Rao following the decompression of the applicant’s sural nerve and right foot and ankle area. He comments that the applicant has mixed neuropathic and mechanical pain in his foot and ankle area with classic neuropathic symptoms in the distribution of the sural nerve including numbness, tingling, burning, abnormal itch and pins and needles with intermittent colour changes and swelling.
Dr Tame reviewed the applicant on 13 January 2021 and finds his presentation is consistent with neuropathic pain and potentially CRPS. If his neuropathic pain fails to improve then it would be appropriate to consider a series of lumbar sympathectomies and further down the track a spinal cord stimulator if other treatment strategies are ineffective.
Approval was sought on 19 April 2021 for three lumbar sympathectomy injections combined with pulsed radiofrequency treatment and on 30 July 2021 Dr Tame reports that there was only short term improvement following the injections.
Dr Tame’s opinion is that the neuropathic pain could respond better to spinal cord stimulation. He assesses the applicant as a suitable candidate on 14 September 2021 and seeks approval from the insurer for a trial.
On 5 March 2022 Dr Tame responds to Dr Harrington’s report noting as an orthopaedic surgeon he is not an expert in evaluating neuropathic pain or its treatment.
Dr Tame has observed clinical signs confirming a diagnosis of CRPS in combination with the applicant’s symptoms.
On 12 April 2022 Dr Tame requested approval for a right sided sural nerve block plus pulsed radiofrequency treatment under ultrasound guidance at Charlestown Private Hospital. In the event this fails the applicant should proceed with spinal cord stimulation therapy, subject to being assessed as a suitable candidate.
The applicant reported very mild improvements in pain after the procedure and Dr Tame was hopeful on 8 July 2022 there would be no significant obstacles to accessing spinal cord stimulation therapy. Dr Tame requested approval for a trial on 10 August 2022.
Dr Tame prepared a medico legal report on 8 November 2022 in which he confirms his diagnosis of CRPS type 2. Dr Tame also comments that in addition to his knees and left ankle, the applicant is now reporting new symptoms around the left hip area and low back.
The trial of the spinal cord stimulator was completed by 3 May 2023 and Dr Tame reported some significant improvements in foot and ankle pain, but the pain related to the procedure was also quite significant and made the results slightly more difficult to interpret.
Dr Tame advised the applicant’s general practitioner on 17 May 2023 that he had reached maximum medical improvement. The applicant had quite significant procedure pain in the thoracic area that took some time to settle.
Dr Tame sought approval for permanent implantation of a spinal cord stimulation device on 17 May 2023, and on 3 August 2023 he asked the insurer to consider reversing its decision to decline this.
On 4 September 2023 Dr Tame comments that whole person impairment should be assessed by a specialist pain management physician who is familiar with assessing whole person impairment for complex neuropathic pain complaints such as CRPS. The doctor notes CRPS symptoms may not be rateable as clinical signs vary.
Dr Panshasarp, general practitioner at Ungooroo Aboriginal Corporation GP & Health Services, provided a report on 26 July 2022. There is no reference made to the applicant’s lumbar spine.
The CT lumbar spine and left ankle report of 8 January 2024 comments on degenerative changes in the lumbar spine with no evidence of significant canal or foraminal stenosis, and a broad-based posterior disc osteophyte complex more prominent on the right causing mild canal narrowing.

Respondent’s evidence

The respondent’s s 78 notice of 27 September 2024 disputes the applicant is entitled to permanent impairment lump sum compensation for the injury on 25 November 2018.
The supplementary report of Dr Chris Harrington of 7 December 2022 is with respect to the applicant’s claim for remedial massage which is not the subject of these proceedings.
Dr Harrington’s report of 5 August 2024 follows his examination of the applicant on
29 July 2024. The doctor says he does not think the applicant has CRPS as he did not see the markers. He also finds that if the applicant has been limping there is no wasting of his calf muscles. He would also think that if there was CRPS ingrained for this long there would be a lot of deformity.
Dr Harrington notes the applicant says he does get the odd back trouble and that everything has been put down to the way he has been walking on the left side.
Dr Harrington’s opinion is that the back complaint is constitutional, and his opinion differs from Dr Isaacs on this. He assesses the applicant with DRE category I for his lumbar spine as well as assessing the right foot and ankle as 12% for his foot and 4% for his stiff subtalar joint.
Dr Harrington provided a further supplementary report on 17 October 2024 in which he clarifies his assessment finding 7% whole person impairment.
A/Prof Marc Russo, pain management and rehabilitation specialist, on 9 February 2022 diagnoses the applicant with ligament damage, avulsion fracture and sural nerve injury from the initial injury. The sural nerve injury is producing the ongoing sural neuralgia pain.
A/Prof Russo recommends considering that the applicant have ultrasound guided sural nerve pulsed radiofrequency neurotomy before recommending a trial of spinal cord stimulation.
Dr David Gorman, pain management and rehabilitation specialist, provided a report dated
31 July 2024. He records the plaintiff as having low back pain as well as pain in both knees, his left foot and left Achilles tendon, as well as the symptoms in the right foot.
Dr Gorman diagnoses right ankle fracture with avulsion injury and ongoing nociceptive pain and restriction of movement, and dysaesthesia in the sural and superficial peroneal distributions following the surgeries. He disagrees that the applicant has CRPS as he did not meet the criteria and there is a better diagnosis to explain his presentation.

Dr Gorman’s assessment is 8% whole person impairment for dysaesthesia in the sural and peroneal nerve distributions, which with scarring totals 9%.
Dr Gorman does not believe there is any ongoing impairment related to the applicant’s lumbar spine. The doctor’s opinion is that although he does have pain in the lumbar spine this is part of a widespread musculoskeletal pain and is not associated with asymmetry of movement or any radiculopathy.
Rehab Management provided a functional assessment report dated 23 December 2019. This includes that the applicant reported that he sustained a lower back injury approximately 20 years previously which he manages adequately and which does not impact on his day to day life.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant sustained a very significant inversion injury to his right ankle on
25 November 2018 when he fell and he noticed a cracking sensation in his ankle.
Dr Rao’s serial reports describe five necessary bouts of surgery and it has been a long and painful condition for the applicant.
He has developed some symptoms looked at by two pain specialists, one of whom
Dr Richmond was satisfied that CRPS was present. Dr Gorman when reporting to the respondent did not find a sufficient basis for that diagnosis. At one point there was a sufficient basis for that diagnosis the applicant submits even though there is a challenge to Dr Richmond’s methodology.
The case should be remitted to the President for referral to a Medical Assessor to assess the right lower extremity (ankle). The wording of the referral to the Medical Assessor should also make clear that an assessment is to be made to see whether there is CRPS, and if there is to assess that for the purposes of whole person impairment.
With respect to the consequential lumbar spine condition, Dr Isaacs records that the applicant told him that because of his persistent pain in his right foot and ankle he was walking with a limp and his gait changed. He developed pain in the left ankle, both knees and both hips as well as the lower back.
Dr Isaacs took into account the CT scan of the lumbar spine that shows degenerative change and at L5/S1 there is a broad-based posterior disc osteophyte complex more prominent on the right-hand side.
The applicant’s submission is that the evidence in favour of the applicant on the changes to the lumbar spine demonstrated on the CT scan is compelling. The applicant developed pain in his back as a consequence of walking with a gait due to the right ankle. It is inevitable that the applicant changed his manner of walking as a result of the right ankle injury. The unequal pressure due to the change of gait causes unequal pressure change in the structures of the body so that pain in the lower back is a consequence of the injury.
Dr Isaacs says as much from a specialist point of view after examining the applicant’s lower back. On examination he found the applicant experienced pain on flexion of the lumbosacral spine, and extension became uncomfortable after 15 degrees. He was tender on single leg raising on both sides at 90 degrees over the L4/5 and L5/S1 interspinous spaces and over the right sacroiliac joint, so there is a painful back where there was not a painful back prior to the injury and walking in an unusual way.
The causal link that needs to be considered in determining whether the lumbar spine should be added to the body parts does not require demonstrating employment was the main or substantial contributing factor. You only need to be satisfied that there was a material contribution from the injury; Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 and particularly at paragraphs 57 and 58, referring to the question of whether a need for surgery had followed an injury.
The applicant submits that there was a material contribution from the injury based on a commonsense test of causation in KooragangCement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796. Here you will comfortably find that the injury has materially contributed to the painful back that was demonstrated to Dr Isaacs on examination.
The applicant has been consistent in his account of a lower back condition consequential to his injury, to Dr Gorman who he saw for the insurer on 31 July 2024 and to Dr Harrington who also had an account of back pain. Dr Harrington reports as far as the applicant’s back is concerned that he stands putting his weight on the left side but he can flex below the knees, and just that stance tells you something in the applicant’s submission.
The applicant’s account of his lumbar spine pain is consistent, and he should be accepted when he reports that he has a sore back and that it came on subsequent to the injury and in connection with the abnormal gait and the abnormal weight distribution observed even when standing by Dr Harrington.
Dr Harrington challenges the proposition of Dr Isaacs. When asked if he considered the applicant’s back condition has resulted from the injury to the right ankle and whether he considered there to be a commonsense causal chain of connection between the back condition and the right ankle injury, Dr Harrington does not really answer and says the back complaint is constitutional. There is no opinion as to whether there is a break in the chain of causation for example.
While some of what is shown radiologically may well be constitutional it does not change the fact that the pain free back was rendered painful as a result of the abnormal gait.
The applicant submits that it should be accepted that that he sustained a right ankle injury and as a result he has over the years through the bouts of surgery had an abnormal gait.
The applicant is also somewhat overweight however on the balance of probabilities the abnormal gait that he has adopted had made a material contribution to the painful condition that his back is now in, and the lumbar spine (consequential injury) should be remitted to the President for referral to a Medical Assessor.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The respondent started by discussing the terms of the referral to a Medical Assessor. There is no doubt a referral ought to be made for the accepted right ankle injury. Nothing further needs to be included regarding CRPS as the Medical Assessor will assess the right ankle and if the relevant diagnostic criteria are found they will assess the level of impairment flowing from that.

If the Commission is against the respondent on that proposition, the referral to the Medical Assessor should be framed as “right lower extremity (ankle), including CRPS referable to the right ankle, if the diagnostic criteria for the CRPS are present”.
The applicant indicated he is likely be content with that form of referral.
There is no dispute that the applicant suffered an injury on 25 November 2018. He has had multiple surgeries and multiple problems flowing from that that are not in dispute. There are a raft of complications, there is the trial of the spinal cord stimulator and reference to the right knee, the left knee and the hips.
Despite all those other unrelated factors the applicant says he can weave a neat path through it all and link the lumbar spine as a consequential condition.
The respondent accepts the test and the authorities that flow from the decision in Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
The Commission cannot be satisfied that the lumbar spine condition on a commonsense approach is referable to the ankle. It is not contemporaneous in time and there are other things that are affecting the applicant. Dr Isaacs and some of the other treating doctors seem to accept the lumbar spine as a consequential condition because the applicant says it is rather than applying their medical expertise.
Dr Rao first sees the applicant in March 2019 and there are a series of his reports through to 2020 with the applicant reporting symptoms and limitations undoubtedly flowing from the right ankle.
The first mention of a lower back problem is on 16 June 2020 when Dr Rao says the ankle is going well but unfortunately the applicant injured his back, this is more than likely due to the increased loading he has had on his ankle and unfortunately he twisted his back about a week ago and now has some ongoing lower lumbar pain.
The respondent submits although this is rather imprecisely expressed there is a specific twisting episode precipitating the back pain. Dr Rao makes a passing reference to the increased loading that is not the main reason for the symptoms.
Dr Rao does not make any reference to the back or back symptoms on the next consultation on 27 July 2020, or on the consultations on 12 August 2020 or 12 January 2021.
The applicant then comes under the care of Dr Tame in January 2021. Dr Tame details his examination of the applicant, pain, psychology, physical therapy and the procedures, and what needs to occur in plotting a path forward for him. What is absent is any consideration of the applicant’s back.
On 8 April 2021 Dr Rao refers to the wearing of orthotics in the applicant’s shoes which is the very thing that may address the altered gait or some sort of imbalance. Despite that there is no consideration of lower back problems, complications or issues.
Dr Tame on 19 April 2021 says it is likely the applicant has CRPS but that the applicant is keen to proceed with a series of lumbar sympathectomies which are very effective for reducing his neuropathic pain. Again there is no consideration of any possible injury of the lumbar spine.
The respondent submits that if there was a genuine injury, incapacity or disability that would be considered as part of this invasive procedure being contemplated by Dr Tame.

Dr Rao on 28 April 2021 notes the injections and blocks but again he does not say what about the original injury or a consequential condition should be considered before going in with this procedure.
The series of reports that follow are again silent about the lumbar spine.
Dr Tame on 30 July 2021 contemplates a spinal cord stimulator if there is no further surgery planned. The doctor refers to significant bilateral knee pain, mechanical in nature and not referable to the ankle, and if one is talking about an altered gait it surely must have some involvement of the knees yet the lumbar spine is not looked at.
On 16 August 2021 Dr Rao refers to the spinal cord stimulator and issues with the applicant’s right knee. In a referral letter that follows to Dr Estens, orthopaedic surgeon, there is no concern with the lumbar spine and the complaint is about the right knee collapsing.
Dr Tame on 14 September 2021 says the applicant was assessed by a multidisciplinary team as an appropriate candidate to proceed with the trial of a spinal cord stimulator for his neuropathic right leg pain. The doctor has no concerns about any injuries for surgery or an implantation in the lumbar region.
Dr Rao refers to Dr Estens’ report on 8 December 2021 which is not before the Commission, and it seems Dr Estens agrees there is no need for surgery to the right ankle and it is more than likely that the neuropathic and CRPS issues are causing the problems with the right ankle. The doctor also refers to right knee problems and the left ankle.
Dr Tame on 5 March 2022 levels some criticism of Dr Harrington’s opinion, noting he is not an expert in neuropathic pain. Dr Tame says stimulation can be extremely effective for neuropathic foot and ankle pain and there is still contemplation of invasive surgery at the lumbar spine unimpeded by any impairment or condition therein.
Dr Rao refers to A/Prof Russo indicating the right knee pain could be secondary to altered gait but other factors are also contributing.
Dr Rao on 20 July 2022 notes the right ankle injury and the relevant surgeries in the onset of neuropathic pain. Due to the dysfunction of the right ankle he subsequently developed issues with his left ankle and right knee, with no suggestion of ongoing problems at that date with the lumbar spine. The mechanical instability in the left ankle and right knee could equally be the contributing factor to the lumbar spine. The doctor does not embrace any disability or condition referable to the lumbar spine.
Dr Panchasarp, treating general practitioner, in his report of 26 July 2022 is asked whether the right ankle injury made a material contribution to the development of symptoms in both knees and the left ankle which he says is feasible, but he does not refer to the lumbar spine.
On 8 November 2022 Dr Tame says the applicant has developed pain to the right knee, left knee and left ankle and most recently the applicant has gone on to develop pain around the left hip girdle and lumbar spine, however Dr Tame is not an expert in this area and so no weight ought to be placed on this opinion.
In the respondent’s submission if the right ankle causes instability leading to a lumbar condition, one wonders how three other body parts that control ambulation do not contribute. Dr Tame then says there is no doubt these issues have developed at least in part as a result of altered movement and gait related to his initial injury. He refers to the applicant becoming physically deconditioned and putting on more weight.
The respondent submits that may also have been a contributing factor to the lumbar spine condition.
Dr Tame in the respondent’s submission comments on orthopaedic issues outside his area of expertise and the opinions of orthopaedic surgeons should be preferred. Dr Tame is far from persuasive on the issue and Dr Rao does not to a large extent embrace it either.
The applicant is then left with the medico legal reports of Dr Richmond and Dr Isaacs.
Dr Richmond in her report of 11 November 2023 describes symptoms and gait disturbance from the right ankle, developing left ankle pain aching in nature secondary to Achille Tendinopathy and bilateral knee pain secondary to degenerative changes (which Dr Tame does not refer to). The applicant also reports low back pain nociceptive in nature, being pain caused by damage to the tissue, and he has not had any imaging of his back. Dr Richmond does not link the back as a consequential condition to the right ankle injury.
The diagnosis is made of CRPS type 2 and Dr Richmond says there is no other diagnosis that better explains his presentation. Dr Richmond’s opinion is that the subsequent development of left ankle and knee symptoms occurred secondary to gait abnormalities arising from the CRPS. Dr Richmond does not embrace the lumbar spine.
Dr Isaacs made an assessment of whole person impairment of the lumbar spine of 6% however he does not express an opinion about the lumbar spine.
Regarding consequential injuries the doctor seems to blindly accept the applicant’s reporting of symptoms in the lower back. It does not appear to take the tenor of an opinion although the doctor diagnoses consequential injuries to the lower back/aggravation of L5/S1 disc and lumbar spondylosis. It is degenerative changes being aggravated but there is no consideration as to why it is not a natural deterioration of that condition, and why if there is an aggravation of the pathology in the spine the spinal cord stimulations and other injections are occurring. There is no objective evidence for the pathology.
In relation to causation Dr Isaacs is of the opinion that the events described on
25 November 2018 are the substantial contributing factor to the injury and all the symptoms in the right ankle and other body parts including the lower back have developed after the injury and treatment following the right ankle.
The respondent’s submission is that while it is a commonsense test, that opinion is too strenuous with everything else that is going on.
Dr Isaacs then deducts one tenth for pre-existing degenerated L5/S1 disc to assess 6% whole person impairment so that pre-existing pathology is relevant.
Dr Harrington does not embrace an injury to the lumbar spine and in his opinion the back complaint is constitutional, being referable to pre-existing pathology. Dr Harrington assesses lumbar spine whole person impairment however that is not referable to his employment.
A/Prof Russo and Dr Gorman do not embrace the consequential lower back condition.
Dr Gorman refers to symptoms including low back pain, but he does not suggest that there is a consequential lumbar spine condition. The doctor makes no diagnosis of a lumbar spine condition. He does not believe there is any ongoing impairment related to the lumbar spine. He does have pain in the lumbar spine that is part of a widespread musculoskeletal pain not associated with any asymmetry of movement or any radiculopathy. In Dr Gorman’s opinion the lumbar spine pain is not explicable back to the right ankle.
The evidence supports the respondent’s primary position that there is an awful lot going on in the applicant’s life and the Commission cannot be comfortably satisfied that the lumbar problems are referable to the right ankle alone or in combination with anything else.
The Commission also cannot be satisfied that those other injuries are referable to the right ankle and therefore explain the lumbar spine, which has not been properly claimed.
For those reasons the respondent submits the referral to the Medical Assessor should be in the terms of right lower extremity (ankle). If the Commission is against the respondent on this, the referral should then also include the words discussed above.

Applicant’s submission in reply

The applicant is not endeavouring to weave a neat path. The fact that the only consequential condition aside from CRPS that is claimed is the lumbar spine is fully explained by Dr Isaacs.
Dr Isaacs holds the view that there are symptoms in other body parts as a result of the injury but it is only the lower back for which he can comfortably reach a whole person impairment assessment.
It is only one of the applicant’s multiple problems that causes him to walk in a strange and unusual way and that is of the course the right ankle injury.
Dr Rao notes on 8 April 2021 that the applicant has been to see the podiatrist and is waiting on some supportive orthotics to help with shoe wear. It can be concluded from that that the change in gait has caused the shoe to wear.
The respondent’s submission is that Dr Rao does not embrace the lumbar spine condition to a large extent. Dr Rao’s opinion is that the applicant’s back injury is more than likely due to the increased loading he has had on his ankle, which is exactly the thesis that Dr Isaacs embraces.
A/Prof Russo’s opinion might be of a lesser weight given that his speciality is in pain management but nonetheless we know from Dr Tame’s report of 5 March 2022 that A/Prof Russo provides a third opinion in favour of the proposition that there has been an altered gait which explains the pain in the back.
A/Prof Russo indicates that the applicant’s knee pain could be secondary to altered gait. Other factors are also contributing including age, but there is certainly a material contribution from the altered gait in A/Prof Russo’s opinion.
Dr Tame is not distancing himself from the orthopaedic surgeon as it is completely reasonable to say he is not going to comment, and as a pain management specialist the doctor may have no brief to look into causation.
Causation is of course important for the applicant and the question of causation is at the centre of what is to be determined. This will be determined in his favour in the applicant’s submission because contrary to what the respondent says this is not a case of what the applicant says is therefore what it is.
Dr Isaacs is taking information from his patient or the person who referred him and he records the applicant says he has been walking with a limp, his gait has changed and he developed pain in the left ankle, both knees and hips as well as the lower back.

The applicant did not say to Dr Isaacs that he thinks his altered gait is causing his back pain, this is not put forward by the applicant. The connection between the two is given by
Dr Isaacs.
Dr Isaacs provides his opinion that as a result of the right ankle injury on 25 November 2018 the applicant has developed consequential injuries including to his lower back. That is an opinion he is qualified to make. Dr Rao also gives that opinion.
There is no blind acceptance as it is completely clear that the doctor has accepted the truth of the applicant’s account to him that because of the persistent pain he has been walking with a limp and his gait has changed.
There is no reason in the applicant’s submission why the doctor would not have accepted that an ankle injury of this type would lead to a change in gait, or that the applicant says his lumbar spine is possibly degenerate but was asymptomatic and has become symptomatic.
There is persuasive evidence that there is a consequential lumbar spine condition.
After a brief adjournment the applicant suggested the proposed referral to the Medical Assessor should include the word ‘injury’ so as to read ‘right lower extremity (ankle), including CRPS referable to the right ankle injury, if the diagnostic criteria for CRPS are present.’ The respondent did not need to be heard on that proposition.

FINDINGS AND REASONS

Has the applicant sustained complex regional pain syndrome

CRPS is different from many other conditions referred to a Medical Assessor; the Medical Assessor is bound to diagnose the existence of the condition by application of the definition in cl 17.5 and Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, the evaluation must be made on the day of the assessment through clinical judgment using the Medical Assessor’s clinical expertise, and regardless of whether CRPS may have been diagnosable in the past or of any other opinions that may be in evidence.[2]
[2] Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 at [166]-[168] (Elsworthy).
The parties agree the Commission is not to determine whether the applicant has sustained CRPS and the issue of whether there is a rateable diagnosis of CRPS is a matter for the Medical Assessor.[3]
[3] Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 at [170], Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83 at [113].
The applicant must however be found to suffer pain in the right ankle as a result of his injury on 25 November 2018.[4] That is accepted by the respondent in this case.
[4] Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 at [171], Kemp v Cater Care Australia Operations Pty Ltd [2023] NSWPIC 256 at [76].
The issue to be determined is the framing of the referral to the Medical Assessor for assessment of the applicant’s whole person impairment including of the right ankle, given there is evidence that supports that a rateable diagnosis of CRPS may be made.
Arbitrator Egan in Elsworthy determined that any referral to the Medical Assessor should be made with as much particularity as possible having regard to the particular limbs affected.[5] This approach was also taken by Senior Member Bamber in Grant v Dateline Imports Pty Ltd.[6]
[5] Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 at [173].
[6] Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83 at [113].
The applicant claims lump sum compensation including for chronic pain.
I do not accept the respondent’s submission that the referral should include the right lower extremity (ankle) with nothing further regarding CRPS.
I do not agree the Medical Assessor will assess the right ankle and if the relevant diagnostic criteria are found for CRPS an assessment of the level of impairment flowing from that would be made in the absence of any reference to potential CRPS in the referral.
The attention of the Medical Assessor in my view ought to be drawn to assessing whether there is any rateable diagnosis of CRPS at the time of the examination when carrying out an assessment of whole person impairment of the right ankle.
It seems obvious that pain must be experienced in a part of the body and the affected body part should be specified.[7]
[7] Kemp v Cater Care Australia Operations Pty Ltd [2023] NSWPIC 256 at [14].
The matter is to be remitted to the President for referral to a Medical Assessor to assess whole person impairment including of the ‘right lower extremity (ankle), including CRPS referable to the right ankle injury, if the diagnostic criteria for the CRPS are present’.

Has the applicant sustained a consequential lumbar spine condition

The applicant must establish on the balance of probabilities that the symptoms and restrictions in his lumbar spine result from his right ankle injury.[8]
[8] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45]-[46].
The applicant is not required to establish that a consequential lumbar spine condition is an ‘injury’ pursuant to s 4 of the 1987 Act or that the employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.[9] It is also not necessary for him to identify pathology for a finding to be made of a consequential injury.[10]
[9] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [56].
[10] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169], Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [55].
There appears to be no dispute the applicant experiences pain in the lumbar spine. The applicant’s lower back pain is referred to in his statement evidence and by Dr Rao, Dr Isaacs, Dr Tame, Dr Harrington and Dr Gorman.
It is the cause of the applicant’s lumbar spine condition that is disputed.
The question of causation is determined on the facts of each case and requires a “commonsense evaluation of the causal chain” based on the evidence, including expert opinions where applicable.[11] There must be actual persuasion of the occurrence or existence of a fact before it can be found.[12]
[11] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [464]; 10 NSWCCR 796 (Kooragang).
[12] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
In Kumar v Royal Comfort Bedding Pty Ltd[13] Deputy President Roche confirmed that Kooragang is the test to determine if a consequential condition arises from an injury.
[13] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8.
The evidence supports a finding that the applicant’s lumbar spine condition is a consequential condition arising from the accepted right ankle injury on 25 November 2018.
The applicant’s statement evidence is that he reported he was suffering pain in his left ankle and knees and his low back to Dr Rao, although this was not as severe as the pain in his right foot and ankle. He describes significant ongoing pain in his low back as well as in his left ankle, his knees, and his right foot and ankle extending up into his right calf.
Dr Rao says on 16 June 2020 that the applicant has injured his back “more than likely due to increased loading he has had on his ankle and unfortunately he twisted his back about a week ago and now has some ongoing lower lumbar pain.”[14]
[14] ARD page 87.
I do not accept the respondent’s submission that Dr Rao makes only a passing reference to increased loading and that it is not the main reason for the symptoms.
Dr Rao’s opinion is that the applicant’s back condition is due to his ankle surgery, recovery and rehabilitation.[15]
[15] ARD page 87.
The respondent submits the lumbar spine condition is not contemporaneous in time as the applicant first reports this to Dr Rao in June 2020. I do not accept this submission as the development of a consequential condition necessarily takes place some time after an injury occurs.
It is the case, as the respondent submits, that many of the reports from the applicant’s treating medical practitioners do not refer to lower back pain, however the applicant suffered a significant right ankle injury on 25 November 2018 which was the focus of his treatment.
The applicant first consults Dr Rao in March 2019 and it is not until June 2020 that the doctor records lower lumbar pain. Dr Rao comments on shoe wear and orthotics in April 2021.
Dr Rao’s treatment is otherwise focussed on treatment of the applicant’s right ankle and foot.
Dr Tame is a pain management physician whose treatment of the applicant is also focussed on the right foot and ankle area, although he does record symptoms in the low back.
Dr Panchasarp, general practitioner, was not involved in much of the applicant’s care and the consultation notes do not provide much detail. He defers to Dr Rao’s opinion on treatment.
The respondent describes silence in most of the medical reports on the applicant’s lower back pain. This is explicable in my view due to the lengthy and complicated treatment he was receiving for his right ankle and foot.
Dr Isaacs diagnoses a consequential injury to the lower back/aggravation of L5/S1 disc and lumbar spondylosis. His opinion is that the lower back symptoms developed after the injury and treatment following the right ankle. This accords with the opinion of Dr Rao.
There is no evidence before the Commission of lower back symptoms prior to the applicant’s right ankle injury on 25 November 2018.
I accept the applicant’s submission that he has been consistent in his account of his lower back condition and of it being a consequential condition resulting from his right ankle injury.
Dr Tame notes the applicant has injured his back and this is more than likely due to the increased loading he has had on his ankle.
Dr Gorman records low back pain and that the applicant feels there is a “strain on the left side of his body” after his injury.[16]
[16] Reply page 26.
Dr Harrington notes the applicant says he does get the odd back trouble and that everything has been put down to the way he has been walking on the left side, although he does not agree the lower back condition is a consequential injury.
I do not accept the respondent’s submission that the lumbar spine condition is accepted by Dr Isaacs and others as a consequential condition because the applicant says it is.
Dr Isaacs notes the applicant’s account of persistent pain in his right foot and ankle resulting in his walking with a limp and changed gait, and that he has developed pain in the left ankle, both knees and both hips as well as the lower back.
Dr Isaacs examines the applicant and records his findings including pain in the lower back. He then diagnoses a consequential lower back condition and says symptoms including those in the lower back developed after the right injury and its treatment. I do not accept that
Dr Isaacs appears to blindly accept the applicant’s reporting of lower back pain.
The applicant consulted Dr Rao over several years. Dr Rao indicates in June 2020 that if the applicant’s back did not settle down within four weeks he would try to organise an MRI.
Dr Rao asked Dr Vickers if the back condition could be covered under the applicant’s workers compensation claim. I do not agree Dr Rao accepted the lumbar spine as a consequential condition because the applicant says it is.
Dr Richmond combined Dr Isaac’s assessment of the lumbar spine with her assessment of the right ankle but does not comment on the cause of the applicant’s lumbar spine condition which would appear to be outside her area of expertise.
With respect to the applicant’s gait, in answering the question of whether the right ankle and calf injuries made a material contribution to the development of symptoms in the left ankle and both knees, Dr Richmond refers to gait abnormalities arising from the CRPS symptoms in the right lower limb.[17]
[17] ARD page 43.
Dr Harrington notes the applicant stands putting weight on his left side, although he goes on to say if the applicant has been limping he found no wasting of the applicant’s calf muscles. It is his opinion that the back complaint is constitutional.[18]
[18] Reply pages 14 and 15.
A/Prof Russo when asked about the applicant’s right knee pain says it “can be secondary to altered gait from his right foot and ankle pain but equally it may be constitutional secondary to his morbid obesity and being aged over 40.”[19]
[19] Reply page 21.
Dr Gorman notes the applicant walks with an antalgic gait and does not require a stick, although in his opinion there is not a consequential lumbar spine condition.
Dr Rao on 8 April 2021 refers to the applicant waiting on supportive orthotics to help with shoe wear.[20] It is not clear in my view that Dr Rao is of the opinion that the shoe wear results from the altered gait and I do not accept the applicant’s submission in this regard.
[20] ARD page 103.
The evidence overall supports a finding that the right ankle injury on 25 November 2018 resulted in the alteration of the applicant’s gait.
Dr Isaacs is of the opinion that the altered gait caused the applicant’s lower back pain.
Dr Rao is of the opinion that it is more than likely due to the increased loading he has had on his ankle. The back condition is due to the right ankle surgery, recovery and rehabilitation from that in Dr Rao’s opinion.
Dr Harrington is of the opinion that the applicant’s back complaint is constitutional.
I prefer the opinions of Dr Isaacs and Dr Rao on causation of the applicant’s lower back pain to that of Dr Harrington.
Dr Harrington’s examination appears less extensive than the examination carried out by
Dr Isaacs. Dr Harrington notes the applicant stands putting his weight on his left side but he can flex below his knees and there was no spasm. Dr Isaacs carried out a more detailed examination of the applicant’s lumbar spine and concludes that the right ankle injury caused the low back pain.
The respondent submits there are unrelated factors affecting the applicant’s lumbar spine.
Dr Isaacs considered the lumbar spine and left ankle CT scan of 8 January 2024 that noted degenerative changes in the lumbar spine and a broad-based posterior disc osteophyte complex causing mild canal narrowing. The doctor diagnoses a consequential injury to the lower back/aggravation of L5/S1 disc and lumbar spondylosis.
I have not accepted Dr Harrington’s opinion that the applicant’s back complaint is only constitutional as discussed above.
Dr Gorman’s opinion is that the applicant’s lumbar spine pain is part of a widespread musculoskeletal pain, although he appears to find the development of the musculoskeletal pain is in association with the ongoing right ankle pain and abnormal gait.
Dr Gorman notes the applicant has lumbar spine pain however on examination he finds the low back has a normal range of motion in all planes. I prefer the opinion of Dr Isaacs for the reasons discussed above.
There is no evidence before the Commission that the applicant’s low back pain was the result of instability in the left ankle and right knee, or as a result of the twisting episode
Dr Rao refers to in June 2020.
Dr Tame reports on 30 July 2021 that the lumbar sympathectomy injections only provided short term improvement. There is no evidence before the Commission that these injections caused or contributed to the applicant’s low back pain.
The respondent submits that if there was a genuine lumbar spine injury, incapacity or disability that would be considered as part of the invasive procedure of the spinal cord stimulator contemplated by Dr Tame.
Dr Tame reports on 3 May 2023 that there was quite significant procedure pain from the trial of the spinal cord stimulator. On 17 May 2023 Dr Tame described quite significant procedure pain in the thoracic area that took some time to settle. These reports are made after
Dr Tame’s comment on 8 November 2022 that the applicant reported new symptoms in the low back area.
Dr Tame and Dr Rao express no concern that the injections or the spinal cord stimulator will increase the applicant’s low back pain or are not appropriate due to lower back pain. I do not accept in the absence of any such evidence that those procedures would only be carried out if there was no lower back pain.
A/Prof Russo comments that the applicant’s right knee pain could be secondary to altered gait but equally may be constitutional and secondary to his weight and being over 40 years of age. Dr Tame refers to the right ankle injury precipitating altered gait and posturing, physical deconditioning and weight gain which may have accelerated the development of pain in his knees and left ankle.
There is no evidence however that any deconditioning or weight gain has caused the applicant’s lower back pain.
The applicant must establish the accepted right ankle injury has materially contributed to his lumbar spine condition even where there may be other causes.[21]
[21] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
On a consideration of all of the evidence I find that the right ankle injury resulted in an abnormal gait that has materially contributed to the applicant’s lumbar spine condition.
Causation is not always direct and immediate. I accept in this case the causal chain from the right ankle injury is unbroken and provides the relevant causal explanation for the applicant’s consequential lumbar spine condition.[22]
[22] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 461; 10 NSWCCR 796.
I am persuaded on the basis of all of the evidence the applicant has sustained a consequential lumbar spine condition arising from the right ankle injury on
25 November 2018.
The matter will be remitted to the President for referral to a Medical Assessor including for an assessment of whole person impairment of the consequential lumbar spine condition.

SUMMARY

The issue of whether the applicant has a rateable diagnosis of CRPS is a matter for assessment by a Medical Assessor.
The applicant has a consequential lumbar spine condition as a result of the accepted right ankle injury of 25 November 2018.

I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows;
Date of injury:   25 November 2018.
Body systems/parts:                 right lower extremity (ankle), including CRPS referable to the right ankle injury, if the diagnostic criteria for the CRPS are present, lumbar spine (consequential injury).
Method of assessment:            whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a) the ARD and attached documents, and
(b) the respondent’s Reply and attached documents.

[2024] NSWPIC 713

19 December 2024