Martino v DGL (Aust) Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Martino v DGL (Aust) Pty Limited [2022] NSWPIC 575
APPLICANT:	Daniel Martino
RESPONDENT:	DGL (Aust) Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	18 October 2022
DATE OF AMENDMENT:	06 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation and medical expenses; the applicant suffered an accepted right ankle injury and accepted consequential conditions to his wrists; he brought proceedings for permanent impairment compensation in respect of those body systems and in relation to a disputed alleged consequential condition to his lumbar spine said to have been caused by altered gait; Held – the applicant suffered a consequential condition to his lumbar spine as a result of altered gait caused by the accepted ankle injury; the contemporaneous evidence and findings on examination of reduced movement in the ankle are consistent with the applicant’s complaints of altered gait over an extended period of time; a common sense evaluation of the medical and lay evidence therefore supports a finding of consequential condition to the lumbar spine; respondent ordered to pay applicant’s reasonably necessary medical expenses on the claimed body systems; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor.

determinations made:

The applicant suffered an injury to his right lower extremity (ankle) in the course of his employment with the respondent on 4 September 2019.
As a result of the injury referred to in (1) above, the applicant sustained consequential conditions to both upper extremities (wrists) and his lumbar spine.
The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of the body systems referred to in (1) and (2) above.
The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:
Date of Injury:  4 September 2019
Body Systems Claimed:            right lower extremity (ankle); bilateral upper extremities (wrists) (consequential conditions); lumbar spine (consequential condition); scarring.
Method of Assessment:     Whole person impairment
The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply served under Application to Admit Late Documents dated 8 June 2022 and attachments;
(c)    Applicant’s Application to Admit Late Documents dated 17 August 2022, and
(d)    Allied Health Recovery document dated 27 January 2022, supplementary report of Dr Nair, Health Care Complaints Commission documentation and MRI of the lumbar spine dated 1 December 2021, each of which are contained within the respondent’s application to admit late documents dated 22 August 2022.
The balance of the documents attached to the respondent’s Application to Admit Late Documents dated 22 August 2022 are not to be referred to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

On 4 September 2019, Daniel Martino (the applicant) suffered an injury to his right ankle when he slipped while alighting from a truck in the course of his employment with DGL (Aust) Pty Ltd (the respondent) and fell into a ditch. Liability for that injury is accepted, as is a claim for scarring together with consequential conditions to both wrists.
The applicant also alleges he suffered a consequential condition to his lumbar spine as a result of walking with an altered gait after his right ankle injury. The respondent disputes liability for that alleged consequential condition.
The applicant brings these proceedings seeking payment of permanent impairment compensation for his right lower extremity (ankle), bilateral upper extremities (wrists), lumbar spine and scarring. He also claims reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers’ Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant suffered a consequential condition to his lumbar spine as a result of the accepted right ankle injury.
In the event there is an award for the respondent on the contentious lumbar spine consequential condition, the balance of the body systems claimed will nevertheless be referred for assessment. In the event the applicant succeeds on his claim with respect to the lumbar spine, that body system will also be referred to a medical assessor for determination of permanent impairment, if any, arising from the consequential condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 25 August 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 and 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, the applicant was represented by Mr McManamey of counsel instructed by Ms Tuco, solicitor. Mr Grimes of counsel instructed by Ms Nicholls appeared for the respondent.
At the hearing, the applicant made application to amend the Application to Resolve the Dispute (the Application) to allege the lumbar spine consequential condition arose as a result of deconditioning together with altered gait. That application is opposed by the respondent on the basis that it was made during the applicant’s submissions in reply at the end of the hearing, and also that the respondent had set out to meet the case put forward by the applicant supported by its independent medical examiner (IME) Dr Assem, who only attributed the consequential condition to an altered gait. The applicant’s application was rejected.
The respondent sought to admit documents attached to its Application to Admit Late Documents (AALD) lodged on 22 August 2022. The applicant objected to certain documents attached to the AALD, and that objection was upheld. The documents admitted therefore limited to those set out below.

EVIDENCE

Documentary evidence

The documents placed into evidence and taken into consideration in making this determination included the following:
(a)    Application and attached documents;
(b)    Reply lodged under AALD dated 8 June 2022 and attached documents;
(c)    applicant’s AALD and attachments dated 17 August 2022;
(d)    the following documents attached to the respondent’s AALD dated 22 August 2021:
(i)Allied Health Recovery document dated 27 January 2022;
(ii)supplementary report of Dr Nair;
(iii)Health Care Complaints Commission documentation, and
(iv)MRI of the lumbar spine dated 1 December 2021.
The balance of the attachments to the respondent’s AALD dated 22 August 2021 were excluded and have not been taken into consideration in making this determination

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his lumbar spine

At the outset, it is important to establish the relevant test for determining the presence of a consequential condition.
In a series of authorities including Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD8 (Kumar), Moon v Conmah Pty Ltd [2009] NSWWCCPD134 and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD23 (Brennan), the Commission has made it clear that it is not necessary for an injured worker to establish they have significant pathology in an area where they are seeking to establish a consequential condition. What is required is for the applicant to establish a complaint in the allegedly affected body system and that on a common sense basis there is an unbroken chain of causation from the accepted injury to that condition. If that is the case in this matter, then the lumbar spine in this matter would be considered a consequential condition.
As Deputy President Roche made clear in Kumar, it is not necessary for an applicant to satisfy the requirements of s 4 of the 1987 Act to establish the presence of a consequential condition. At [55] in Kumar, the deputy president noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009.”
In Brennan, Snell DP noted the following:
“100. There have been a number of presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions… It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ including ‘injury’ based on the ‘disease’ (provisions) within the meaning of S4 of the 1997 Act.”
Deputy President Wood set out the circumstances in which an examination and diagnosis of the pathology of an alleged consequential condition is relevant and appropriate in the decision of Grant v Dateline Imports Pty Ltd [2022] NSWPICPD3 (Grant). In that matter, the applicant alleged an overuse consequential condition to his left upper extremity. Senior Member Bamber (whose decision was affirmed on appeal) noted the applicant’s own IME had diagnosed a central pain syndrome affecting the body part alleged in the Application to have suffered a consequential condition, and as such there was no basis on which to find the left arm symptoms were caused by overuse.
What is apparent from the decision in Grant is the requirement to be persuaded of the existence of the fact that the applicant suffered a condition by way of overuse. Wood DP concluded Senior Member Bamber was correct and noted the decision in Kumar and also that in Arquero v Shannons Anti-Corrosion Engineers Pty Ltd [2019] NSWWCCPD3 (Arquero) were able to be distinguished on the basis that an examination of the available material revealed clear evidence and medical opinion that the worker’s condition in those earlier matters was a consequence of the work-related injury.
In Arquero, the worker suffered a right knee injury in 2000, and in 2014 developed symptoms in his left knee. In that matter, there is clear evidence of altered gait and, post-surgery leg length discrepancy consistent with the worker’s own evidence.
The effect of these authorities is that where the course of an alleged consequential condition is clear on the evidence, there is no need to identify any relevant pathological change. As Snell DP observed in Brennan, it is sufficient to find a consequential condition without identifying the pathology of that condition if the evidence supports a finding it results from an employment injury.
As Wood DP noted in Grant, whether there is a need to identify and diagnose pathology in a body system where an alleged consequential condition has taken place would depend upon the facts of each case and the available evidence. Where there is tension between an allegation of consequential condition based, for example, on overuse and various medical opinions that the symptoms were caused by something other than overuse, it is appropriate to enquire as to whether a diagnosis connected with the alleged cause of the consequential condition can be made out.
It should be pointed out that the mere existence of competing evidence is not enough of itself 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 on a common sense basis that his lumbar spine condition has arisen as a result of overuse brought about by the accepted right ankle injury. For the following reasons, I believe that onus of proof has been discharged.
Following the right ankle injury, the applicant underwent an arthroscopy and lateral ligament stabilisation procedure. At [19] of his statement, the applicant said:
“Post-operatively, I experienced significant swelling, stiffness and weakness in my right ankle. I was placed in a CAM boot for two weeks and then had a brace on my right ankle for a further two weeks. As such, I was much more reliant on my left leg to perform activities, and I began to over-compensate on my left side.”
At [26] the applicant further stated:
“Throughout 2020, I continued to overcompensate on my left side due to my right ankle injury. As such, I began to develop pain in my lower back following periods of increased activity, such as extended walking or sitting. This pain became more and more frequent as time went on and I required Panadol and rest to keep my lower back from becoming too inflamed."
The applicant had evidence of foot drop and painless paraesthesia when examined by treating neurologist, Dr Hassan, on 7 December 2020. That observation was made approximately four months after the applicant’s general practitioner, Dr Weenink observed the following:
“It was noted that Mr Martino had reduced range of motion of his right ankle with difficulty dorsiflexion on 21 August 2020…
Mr Martino’s back pain was noted around 20.1.21 and my initial impression was that of back pain related to deconditioning from reduced activity as a result of time off and reduced activity. However, it is possible I may have been mistaken. In my initial examination of Mr Martino there were little clinical findings of only tenderness at L3/4 centrally and he had normal range of motion of the lumbar spine… Mild lower back pain related to muscle deconditioning and postural issues usually reduces within four – six weeks with physiotherapy, which is what I recommended. However, Mr Martino’s pain has reportedly persisted beyond this time.” (Emphasis added.)
That report by the general practitioner (GP) is broadly consistent with his clinical records of January 2021. On 8 January 2021, the applicant attended, and it was noted he was still having rehabilitation on his right ankle and wrist and had seen Dr Hassan in relation to “likely femoral nerve neuropathy as likely cause for right foot weakness.”
The applicant next visited his GP on 20 January 2021, at which time it was noted lower back pain had developed.
The applicant’s IME Dr Assem diagnosed the applicant as suffering a DRE category II impairment based on symptoms of pins and needles in the right thigh. At page 26 of the Application, Dr Assem opined the applicant’s back pain had been caused by altered gait pattern.
The respondent contended the applicant’s lower back pain was caused by deconditioning rather than altered gait and relied upon by the GP’s entries which suggested that contention. However, the GP himself later resolved from this position (as noted at [25] above), and on balance I prefer the views of Dr Assem which are consistent with the applicant’s evidence and with the contemporaneous clinical reports noting stiffness, restriction of movement and foot drop on the right side.
Those findings are, in my opinion, consistent with the applicant having a persistent altered gait pattern which gave arise to the lower back pain.
I also note exercise physiologist, Ms Liaras recorded the applicant as suffering from restricted range of motion in the right ankle at the commencement of her course of treatment, which began on 17 December 2020. That treatment led to a minimal improvement, however, at the time of her report at the conclusion of the treatment, the applicant was still suffering significant restrictions and it was considered unlikely the applicant would return to full range of motion.
On a common sense evaluation of the evidence, it follows in my view that a significant restricted range of motion in the right ankle as recorded in the GP and exercise physiologist notes would lead to an altered gait. Objective findings of significant limited knee-to-wall testing, right plantar flexion limitation and the inability to carry out normal dorsiflexion plainly demonstrate a range of motion consistent with an altered gait pattern.
The respondent contended a reduced range of motion can be consistent with a normal gait, however, such significantly impaired dorsiflexion and plantar flexion are not, in my view, consistent with an unimpeded gait. Those movements are respectively upward and downward flexion of the forefoot, movements intrinsic to walking.
The respondent relied on the absence of complaints of low back pain in 2020 as being suggestive of an absence of symptoms related to altered gait. However, as the applicant noted in reply, his statement does not refer to the onset of lower back pain throughout 2020, but rather to ongoing favouring of the left ankle during that entire period, which subsequently led to the onset of lower back pain in late 2020 and early 2021.
As Mr McManamey noted, the applicant had demonstrated limited range of motion in his right ankle up to including late 2020. Up to that point, the applicant had long periods of restricted motion in the right ankle and altered his gait including but not limited to a period on crutches and in a CAM boot.
Throughout 2020, there are clinical entries showing the applicant continued to have an altered gait. On 21 August 2020, the applicant advised he could not fully dorsiflex his right foot and was referred for exercise physiology. On 9 September 2020, it was recorded the applicant needed treatment on his right ankle and on 23 September 2020, “Right ankle ongoing difficult/reduced dorsiflexion is an issue”.
On 19 October 2020, an ongoing issue with weakness in the right ankle was recorded, and by 19 November 2020, there was a right foot drop recorded, for which the applicant was receiving treatment by 8 January 2021.
I accept the applicant’s submissions these symptoms manifest themselves as an altered gait pattern, and on a common sense basis, I have no difficulty in accepting on the balance of probabilities that the applicant’s altered gait as a result of the right ankle injury for the period up to and immediately preceding his complaint of lower back pain was the cause of the consequential condition to the lumbar spine.
For his part, the respondent’s IME, Dr Nair emphasises the cause of any pathology in the applicant’s lumbar spine. In his supplementary report dated 11 August 2022, Dr Nair said:
“It is with deference that I disagree with Dr Assem’s report. As stated in my previous reports the findings on MRI lumbar spine are not consistent with a workplace injury. The MRI of the lumbar spine revealed the lumbar disc herniation without a neurocompressive effect. Such findings would not be uncommon when standing and aged match cross-section appears.
With respect to Dr Nair, this is not the test for a consequential condition. Rather, what is necessary is an examination of the evidence to determine whether the onset of symptoms in the allegedly affected body part can be causally linked to the accepted injury.
In my view, the evidence in this matter is overwhelming. The applicant suffered a severe injury to his right ankle, for which he required surgical intervention. He had prolonged periods of walking on both crutches and with a CAM boot and complained throughout 2020 of favouring his left leg as a result of the injury to the right ankle. His restricted range of motion in the right ankle by way of dorsiflexion and plantar flexion in my view is consistent with an altered gait pattern, which in turn on the balance of probabilities has, in my opinion, caused the consequential condition to the lumbar spine.
As a result, I find in favour of the applicant in relation to the alleged lumbar spine consequential condition.

SUMMARY

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

[2022] NSWPIC 575

18 October 2022