Marcellino v Sums Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Marcellino v Sums Group Pty Ltd [2022] NSWPIC 729
APPLICANT:	Antonio Marcellino
RESPONDENT:	Sums Group Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	19 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; accepted lumbar spine injury and scarring to be referred for assessment; dispute arises over whether applicant suffered consequential conditions to left lower extremity (hip and leg) due to altered/antalgic gait; Held – on a common sense evaluation of the causal chain the applicant suffered the claimed consequential conditions; Kooragang Cement Pty Ltd v Bates followed; the evidence supports a finding of the hip and leg conditions being brought about by the applicant’s longstanding altered gait post-accident; it is not necessary to determine the nature of the pathology which makes up the consequential conditions; Moon vConmah Pty Ltd and Kumar v Royal Comfort Bedding Pty Ltd followed; Grant v Dateline Imports Pty Ltd distinguished; matter remitted to the President for referral of all claimed body systems to a Medical Assessor to assess permanent impairment.
determinations made:	1. The applicant suffered injury to his lumbar spine in the course of his employment with the respondent on 21 November 2017. 2. As a result of the injury referred to [1] above, the applicant suffered a consequential condition to his left lower extremity (hip and gait derangement). 3. The matter is remitted to the President for referral to a Medical Assessor to determine the level of permanent impairment arising from the following: Date of injury: 21 November 2017 Body systems referred: lumbar spine; scarring (TEMSKI); left lower extremity (hip and leg) Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor are to include the following: a. this Certificate of Determination and Statement of Reasons; b. Application to Resolve a Dispute and attachments; c. Reply and attachments, and d. applicant’s Applications to Admit Late Documents and attachments dated 5 September 2022 and 17 November 2022.

STATEMENT OF REASONS

BACKGROUND

On 21 November 2017, Antonio Marcellino (the applicant) was working in the course of his employment as a warehouse manager with Sums Group Pty Ltd (the respondent) and was preparing an order of cardboard boxes containing a fiberglass unit which each weighed approximately 10kg. Among the 10kg boxes was an unmarked 25kg box containing a different product. As the applicant lifted the 25kg box, the unexpected extra weight in it caused a sudden onset of lower back pain.
The applicant reported the incident before driving to Sydney Adventist Hospital at Wahroonga where he was seen as an outpatient.
Several days later, the applicant began experiencing severe, shooting pain down his right leg. He attended a general practitioner and was administered a pain killing injection, however, his symptoms worsened to the point he again presented at Sydney Adventist Hospital where a lumbar spine CT scan was carried out, demonstrating an acute rupture of the L4-5 disc.
That disc rupture was the subject of a lateral recess decompression rhizolysis microdiscectomy at the hands of Dr Sergides on 26 June 2018.
The applicant claims that as a result of the development of an antalgic gait following his injury, he has suffered an assessable consequential condition to his left lower extremity (hip and leg). The respondent has denied liability for any consequential condition on the basis there is no causal link between it and the accepted lumbar spine injury.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant’s left lower extremity condition was caused by the accepted back injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a hearing on 22 November 2022. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Carney of counsel appeared for the applicant, instructed by Ms Boitano. Mr Grant of counsel instructed by Mr Murphy, solicitor, appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply, and
(c)    applicant’s Applications to Admit Late Documents (AALD) dated 25 September 2022 and 17 November 2022.

Oral evidence

There was no oral evidence caused called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his left lower extremity

It is important at the outset to establish the relevant test for determining the presence of a consequential condition.
In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar) Deputy President Roche dealt with the issue of whether the injured worker's shoulder condition resulted from mobilizing whilst recuperating from accepted back surgery. Consistent with earlier decisions by the Workers Compensation Commission in matters such as Moon vConmah Pty Ltd [2009] NSWWCCPD 134, the Deputy President noted it was not necessary for an applicant to prove they had suffered the kind of pathological change in the claimed body part sufficient to ground a finding of an injury as that term is defined in s4 of the Workers Compensation Act 1987 (1987 Act).
In determining whether there is a causal connection between a claimed consequential condition and an accepted injury, it is necessary to examine the totality of the evidence on a common-sense basis, consistent with the oft-cited decision of Kirby P (as his honour then was) in Kooragang Cement Pty Ltd v Bates 35 NSWLR 452 (Kooragang). The principle in Kooragang has been followed consistently in determining questions of causation in the worker's compensation context. What is required is a common-sense evaluation of the causal chain to determine whether there is an unbroken chain of evidence sufficient to ground a finding of a causal link between an accepted injury and a consequential condition.
Deputy President Wood set out the circumstances in which an examination and diagnosis of a consequential condition is relevant and appropriate in the recent decision of Grant v Dateline Imports Pty Ltd [2022] NSWPICPD3 (Grant).
In that matter, the applicant alleged a consequential condition to his left upper extremity caused by overuse. Senior Member Bamber (whose decision was affirmed on appeal) noted the applicant's own independent medical examiner (IME) had diagnosed a central pain syndrome affecting the body part alleged in the application to have been the subject of the consequential condition, and as such, there was no basis on which to find the left arm symptoms were caused by overuse.
The decision in Grant confirms the requirement to be persuaded of the existence of the fact the applicant suffered a consequential condition as alleged, in this instance by altered/ antalgic gait. Wood DP concluded Bamber SM was correct and noted the decision in Kumar and the cases which followed it were able to be distinguished on the basis that an examination of the available material in the earlier matters revealed clear evidence and medical opinion that the worker's condition in those cases was a consequence of the work-related injury.
Thus, the effect of the authorities surrounding consequential conditions is that where the cause of an alleged consequential condition is clear on the evidence, there is no need to identify any relevant pathology to the affected body system.
It is also noteworthy that the mere existence of competing evidence is not of itself enough to necessitate the making of a diagnosis in cases surrounding consequential condition. The question to be determined is whether, having regard to all the evidence, the applicant has discharged the onus of proof that his left hip and leg conditions have arisen as a result of altered gait pattern.
For the following reasons, I believe that onus of proof has been discharged.
Following the surgery in June 2018, the applicant had a brief period of substantial improvement. However, he states:
"27. For the first three weeks there was little pain, however, since 17 July 2018, I started to feel pain down my left buttock and down my leg. As a result, this has impacted detrimentally on my mobility and I now have to use crutches to assist in walking and movement. I feel unsteady on my feet and feel that my legs may give way at any time and I could fall.
…
33. The surgery slightly reduced the low back pain and leg pain, however, I continue to suffer from pain radiating down my buttocks and leg following the surgery.
...
42. I am unable to walk or sit for long periods of time and rely on a crutch to assist with walking when needed."
The applicant further detailed his circumstances in his second supplementary statement dated 16 November 2022. In that document, the applicant said:
“10. By April 2018, I was walking with a limp because the pain in my back and leg had continued to increase. After the injury, I had to adopt a different way of walking, which I felt would help alleviate some of my back pain. I walked with a slight hunch and tucked at the left hip, which provided me with some relief and enabled me to walk with less painful. Walking upright caused pain to run down the side of my left leg, up to around the knee, and walking hunched at my left hip helped alleviate this painful. This awkward posture enabled me to continue working and carrying out my light duties, however, I still found my work duties made my pain worse, and my pain was more intense after a day's work...
13.    Following my injury and during my recovery from the operation as a consequence of my back injury, the way I moved around changed drastically because I was very cautious of any movements that would cause pain in my back. I also developed a feeling of instability in my left leg which caused new to fell very unsteady and clunky whenever I tried to walk on it. I feel my back pain consequentially changed the way I walk and my posture, which in turn, further aggravated pain in my left hip and worsened my limb.
14.    My physiotherapist and treatment providers noticed that I had a forward tilted posture hinging from my hip, in particular, I would tuck in at my left hip and had poor movement patterns because I was trying to compensate for pain and weakness caused by my injuries.
15.    As I continued trying to walk the pain in my hip and pelvis area continued increasing to the point where the limping was becoming more obvious and painful.
16.    I felt very imbalanced and weak, like my leg would give way. I had to start to rely more heavily on a crutch to assist with walking. It is now reached the point where I always have at least one crutch with me when I walk for short distances, and two, when I have to try to move longer distances. When I use one crutch, I use it on the left side. I have tried to use one crutch on the right side to alleviate the left leg as suggested by my physio, but I feel very unbalanced and find it much more comfortable and balanced on my left side, which also alleviates the pain. My physio recommended I continue to use the crutch on the side I feel most comfortable."
The applicant's suggestion he adopted an altered gate and suffered left hip symptoms is supported by the clinical records of his general practitioner (GP) Dr Panetta. On 18 January 2018, Dr Panetta recorded the applicant presenting with left hip pain. An entry dated 27 April 2018, that is before the surgery, noted the applicant was now limping.
On 6 September 2018, approximately three months post-surgery, the applicant attended Dr Panetta at which time an antalgic gait was noted, along with the applicant being distressed by pain.
The applicant's physiotherapist Ms Coad provided a report to a fellow treater on 18 October 2018. In that report, MS Coad noted:
“He walked with his legs in excessive external rotation. He particularly tucked in his left hip while weightbearing. When looking at any core muscle activation, he tended to arch through his lumbar spine rather than recruit his abdominal muscles and this also gave him some lower back pain."
There is no issue the applicant had some arthritic changes in his left hip before the injury. That much is demonstrated in a scan taken a short while after the incident at issue. However, Mr Carney submitted, and I accept, that the applicant was able to function normally until the injury caused a change in his gait, which in turn led to the problems with his left hip and leg.
Dr New, orthopaedic and spinal surgeon provided reports in his capacity as both IME and treating doctor. Dr New provided several reports including one on 31 January 2020 in which he specifically noted the applicant's altered gait pattern. Dr New opined the injury in issue was the cause of the applicant's left hip and leg issues.
Dr Patrick IME also provided reports on behalf of the applicant. In his report dated 9 February 2021, Dr Patrick noted on examination that the applicant had left sight meralgia paraesthesia with dysaesthesia together with gait derangement. Dr Patrick stated:
“I believe that as he presents now, Mr Tony Marcellino can be regarded as suffering from a genuine and permanent gait derangement. He is now totally reliant on a walking stick at the minimum, which he uses indoors mainly, and when he goes outside the home he is using two Canadian crutches, as a routine."
For the respondent, Mr Grant noted the applicant had pre-existing left hip pathology by way of bone spurring as found in the MRI carried out on 16 January 2018. He submitted the question for determination was whether any aggravation to that pathology was caused by the applicant's altered gait, or whether the pathology itself caused the altered gait.
Mr Grant took the Commission through a number of clinical entries and noted that on 12 December 2018, Dr Armstrong treating sports physician recorded the applicant walking with a normal gait. He submitted that therefore, by six months post-surgery, there was no explanation as to why the symptoms in the applicants left hip and sacroiliac joint could be said to be a consequence of any altered gait brought on by his lower back injury.
The respondent noted treating neurologist Dr Kim's report dated 11 December 2019, in which the doctor said:
“I had a long discussion with Mr Marcellino and his wife. I am puzzled by his lower back pain and left sided radicular symptoms. There is no evidence of nerve root impingement on his MRI scan and his examination findings would support this, but he complains of left lumbar and leg pain, suggestive of radiculopathy. Further, he has an unusual gait impairment. Whilst his gate is best described as an antalgic gait, he does have a component of imbalance, and I wonder whether the imbalance is simply related to the pain or is as there is no clinical evidence of sensory or cerebral ataxia."
Mr Grant submitted there is no explanation for the development of the left leg symptoms which can be attributed to the incident at issue.
Dr Breit, IME for the respondent noted the applicant had a bilateral, externally rotated gait pattern when he examined him on 9 September 2019.
Although Dr Breit opines the pathology in the applicant's hip predates the injury, that is not determinative of whether there is a consequential condition. The presence of that pathology is not in issue.
In my view, it is apparent the applicant's gait was dramatically altered post-injury. There is no issue he uses crutches to mobilize and a number of treating doctors found antalgic gait patterns upon examination.
Dr Armstrong's observation of a normal gait in December 2018 is a one time finding which is not replicated in the balance of the material, including the respondent's own IME.
In his report dated 11 April 2022, Dr Breit said at paragraph 5.2:
“There is no indication to use altered gait pattern and there are multiple possible reasons for this gentleman's pain starting off with the spine. The Guides indicate that it is an assessment of last resort and in my opinion, it is not applicable.”
However, at paragraph 4.2 of the same report, when asked concerning the applicant's gait, Dr Brei answered:
“As I indicated above, an antalgic gait due to left leg pain means that there is a shortened stance phase and the stress on that area is reduced, that is the purpose of an antalgic gait."
In my view, this represents a contradiction in the views of Dr Breit and is tantamount to a finding on his part that the applicant did in fact have an antalgic gait.
That finding is consistent whether Dr Kim, the treating neurologist who noted the following on examination:
“On examination, he walked with an antalgic gait, spending less time on his left leg. His right foot was out turned. Straight leg raising test was positive on the left side with elevation of the league to about 45 degrees with pain radiating down to the knee."
Moreover, treating surgeon Dr Sergides was contemplating the possibility of left hip symptoms and pathology as early as 17 August 2018, at which time when reporting to the applicant's GP, he was puzzled by the applicant's ongoing left hip issues.
In taking a common-sense evaluation of the evidence, I am satisfied on the balance of probabilities the applicant suffered a consequential condition to his left lower extremity (hip and leg) as a result of an altered, antalgic gait brought about by the injury at issue.
I prefer the views of treating practitioners Dr Kim and Dr New, together with Dr Patrick IME to those of Dr Breit. Additionally, Dr Breit himself notes the altered gait patterns of the applicant.
There is no evidence the applicant suffered ongoing significant issues with his left hip and leg prior to the injury at issue.
In my opinion, it is the altered gait brought about by the initial injury which has caused the applicant's problems in his left lower extremity (hip and leg), and accordingly I find the presence of a consequential condition in that body system, which will be the subject of referral to a medical assessor.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 729

19 December 2022