McBain v Active Contracting Pty Ltd
[2024] NSWPIC 145
•25 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McBain v Active Contracting Pty Ltd [2024] NSWPIC 145 |
| APPLICANT: | Wayne McBain |
| RESPONDENT: | Active Contracting Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 25 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker alleges medical condition of the lumbar spine as a result of accepted injury/condition to the bilateral knees; respondent refutes consequential injury to the lumbar spine; Held – finding of causal nexus between back (lumbar spine) condition and bilateral knee injury/condition, following assessment of legal principles found in ‘consequential compendium’; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment of the lumbar spine, bilateral knees and scarring. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant developed a consequential condition to the lumbar spine as a result of his workplace bilateral knee injuries. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the lumbar spine, bilateral lower limbs (knees) and scarring arising out of injury on 23 July 2015. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
This matter has a long history. Briefly, on 23 July 2015, Mr McBain (the applicant) suffered a fracture of the left knee when it was struck by a large and heavy tree branch. Liability was accepted by the insurer of Active Contracting Pty Ltd (the respondent).
Then in 2021 bilateral knee replacement was recommended. The respondent denied liability for the right knee maintaining it was not injured nor was it a consequential injury. That dispute was the subject of proceedings before the Personal Injury Commission (Commission) where following Arbitration, the respondent was found liable to indemnify the applicant for bilateral knee surgery after findings were made that the right knee was a consequential condition arising from altered gait from the left knee injury.[1] The applicant underwent bilateral knee replacements on 30 May 2022, notably almost seven years after the initial injury.
[1] McBain v Active Contracting Pty Ltd [2021] NSWPIC 462 (16 November 2021).
In the current proceedings, the applicant claims lump sum compensation arising out of the impairment from the bilateral knee injuries, scarring, and lumbar spine. The respondent rejected the lump sum claim for the lower extremities (knees) on the basis its qualified evidence determined an impairment level below the statutory threshold. It also disputed the lumbar spine impairment was a consequential condition arising from the knee injuries.
The matter underwent the usual case management pathway. Following conciliation impasse, I was requested to determine whether the applicant sustained a consequential condition/injury to the lumbar spine following which the matter was to be referred to a Medical Assessor for assessment of whole person impairment.
The applicant was represented by Mr Schipp of counsel instructed by Mr Evers. The respondent was represented by Mr Stockley of counsel instructed by Mr Lee. The applicant was also present. Mr Ye was the insurer representative. No oral evidence was adduced. In considering the matter I considered oral submissions from counsel and the documents attached to the Application to Resolve a Dispute (ARD) and the Reply.
Prior to the arbitration, Mr Schipp objected to the admission of the respondent’s medical evidence citing breaches of Regulation 44 of the Workers Compensation Regulations 2016. Mr Stockley remedied that breach by confirming the respondent relied solely on the reports of orthopaedic surgeon, Dr Smith and only the histories of the other assessors, relevantly Drs Reiter, Miniter and Harvey.
SUBMISSIONS
Applicant’s submissions
When summarised Mr Schipp submitted:
(a) the Commission (differently constituted) has made findings the applicant sustained a left knee injury in the course of his employment and a right knee injury as a consequence of the altered gait arising from the left knee injury. These findings were accepted by the respondent who ultimately funded bilateral knee replacement in 2022;
(b) medical evidence before the Commission clearly demonstrates the severity of the lower limb injuries, causing the applicant to limp, develop an altered gait (a finding made in previous proceedings) all of which aggravated the pre-existing lumbar spondylosis with complaints of back pain as early as 2016;
(c) the respondent’s qualified evidence is of no value as Dr Smith has failed to take into account the findings of the Commission in relation to liability and significantly further fails to comment whether any altered gait as a result of the lower limb injuries aggravated the pre-existing degenerative changes to the lumbar spine, which he noted, and
(d) the histories of Dr Miniter and Dr Harvey record the applicant’s complaints of back pain well prior to any claim for lump sum compensation and shortly after the knee injury.
Respondent’s submissions
When summarised Mr Stockley submitted:
(a) the applicant’s evidence and specifically the qualified opinion of Dr Bodel fails to give any insight into the clinical history and examination findings of the spine that can be reconciled with the injury to the knees;
(b) there is no dispute the applicant has extensive degenerative changes in the lumbar spine, seen on various radiological investigations, and it is conceivable that those changes may have been aggravated in the short term causing pain whilst undertaking rehabilitation. Surgery to the knees presumably corrected any altered gait and so any ongoing symptoms to the spine are the result of pre-existing degenerative changes;
(c) the respondent accepts that the ultimate conclusions of Dr Smith are inconsistent with the findings made by the Commission in its earlier determination, but that does not invalidate the global medical findings on examination;
(d) MRI examination of the lumbar spine in 2016 ruled out any nerve injury or impingement to the lumbar spine but does confirm extensive age related degeneration, and
(e) the medical evidence does not establish a causal connection of lumbar symptomatology associated with any altered gait.
Submissions in Reply
The applicant suffered an injury to the left knee. He was then formally found to have suffered a consequential injury to the right knee as a result of abnormal gait arising from favouring the leg. Knee replacements did not occur until seven years after the event, and in the interim there is evidence to demonstrate that the applicant was suffering from lumbar spinal pain. The applicant has clearly established a causal connection of his back symptoms to his lower limb injury/condition and so it follows that he should receive an award in his favour.
Applicant’s evidence
Statements by the applicant record (unedited):
“because I was limping a lot in about July 2016 I started to develop pain in my lower back radiating into my left buttock. I walked with an altered gait for over a year...
Since a year or two after the accident I have seen Dr Ferch for my lower back and I am awaiting to find out if Employers Mutual are going to meet the cost of whatever treatment Dr Ferch recommends… [2]
In relation to my back, I experience permanent lower back pain. The pain is worse when I am using the muscles in my lower back doing such activities as bending, twisting or lifting. I note that the pain is slightly worse on the left side. I sometimes experience spasms or pulling in the left side of my lower back, particularly when bending forward…
I have seen Dr Ferch for my lower back injury. Dr Ferch recommend I undergo an outlet nerve root injection in 2017. My insurer declined liability for that procedure. I could not afford to undergo the procedure and as a result I have not had it done.”[3]
[2] Statement of Applicant dated 16 February 2017 folios 2 and 3 ARD.
[3] Statement of Applicant dated 12 June 2019 Folios 4 and 5 ARD.
Dr Bodel
Dr Bodel is the applicant’s qualified opinion. Five reports are in evidence. The following extracts chronologically reflect his findings in relation to the lumbar spine (unedited):
“Over time because of the lengthy recovery he has also developed intermittent back pain and he has eventually had an MRI scan done of the back which shows a significant disc injury at the lumbosacral junction. There is a slight prolapse towards the left hand side which appears to be in contact with the S1 nerve root but there is no clinical sign on testing here today that he has radiculopathy. He has been advised to have physiotherapy for the back….[4]
He did unfortunately develop lower back pain because of his abnormal gait pattern and also pain in the right knee and he has had further investigations of those areas. An MRI scan of the lumbosacral spine shows some disc pathology at the lumbosacral junction with some slight prolapse towards the left hand side with nerve root pressure of the S1 nerve root. When I saw him last, the insurer had not accepted liability for the back complaint.[5]
He also has developed the consequential condition in the lower part of the back where there is asymmetry of back movement and guarding associated with mechanical backache and minor disc pathology[6]
While undergoing that treatment on the knee he began to favour the right side and developed increasing pain in that area and also in the lower part of the back. He had some MRI scans done of the lower part of the back showing evidence of nerve root pressure on the S1 nerve roots on the left hand side. He again indicates to me that the insurer had not accepted liability for the back or the right knee.[7]
This gentleman suffered an injury to the left knee in the specific event that occurred on 23 July 2015 as noted. There was a minor fracture of the tibial plateau and also a significant soft tissue injury by way of aggravation, acceleration, exacerbation and deterioration of a previously asymptomatic degenerative change in the knee.
That has also occurred in the right knee as a consequential injury while recovering from that left knee injury and he also has mechanical backache for the same reason.
His ongoing pathology and the injuries associated with all three areas are largely due to the aggravation, acceleration, exacerbation and deterioration of an underlying disease process in each area[8]
‘This gentleman has had a number of conservative treatments for the back and both knees and they have been unsuccessful. Dr Verheul has quite clearly indicated that any further, more conservative approaches to treatment are contraindicated and the only various treatment option is the bilateral total knee replacement.”[9]
[4] Report dated 18 July 2017 – Folio 81 ARD.
[5] Report dated 29 January 2019 – Folio 88 ARD.
[6] Report dated 29 January 2019 – Folio 90 ARD.
[7] Report dated 25 November 2020 – Folio 95 ARD.
[8] Report dated 25 November 2020 – Folio 98 ARD.
[9] Report dated 7 July 2021 – Folio 105 ARD.
Roland-Morris back pain and disability questionnaire and Oswestry disability index
On 25 October 2016, the applicant self reported the following restrictions in the above questionnaires referrable to his spine: [10]
(a) pain rated at 8/10;
(b) frequent changes of positon on account of back pain;
(c) use of handrails to climb stairs;
(d) difficulty getting out of a chair;
(e) trouble putting on socks;
(f) avoiding heavy work around the house, and
(g) moderate pain preventing walking for more than 1km; sitting for more than one hour; standing for more than one hour.
[10] Folios 71, 72 and 73 of the ARD.
Dr Ferch
Dr Ferch reviewed the applicant and reported (unedited):
“Wayne has been struggling with left lower limb pain and low back pain following an injury on 24/7/2015
His left buttock pain may be secondary to irritation to the L5 nerve root and this could respond to a transforaminal steroid injection.[11]
Mr McBain reported that buttock pain in the left and low back pain had persisted since his injury on 24.7.2015. I am unaware of an injury on 23.7.2016. The persistent buttock and back pain is likely to be a result of the injury on 24.7.2015.
Mr McBain would be vulnerable to lumbar spondylosis due to the repetitive lifting associated with his employment. Mr McBain attributes the onset of his symptoms to his accident on 24.7.2015.
Mr McBain would have developed these (degenerative changes) irrespective of his work. Lifting has the potential to accelerate degenerative change. He became symptomatic after his work injury on 24.7.2015 and this accident therefore was a substantial contributing factor to his ongoing symptoms.”[12]
[11] Report dated 25 October 2016 – folio 76 ARD.
[12] Handwritten response to an insurer questionnaire dated 10 November 2016 folios 77 and 78 of the ARD.
WorkCover medical certificates
The complete series of certificates is found in the reply. Relevantly is a certificate issued on 20 July 2016, where the previous diagnosis of left knee injury was amended as follows; “left knee injury – due to walking abnormal now back pain”.[13]
[13] Folio 71 Reply.
Respondent’s evidence
The respondent qualified Dr A Smith. Four reports are in evidence. Relevantly, in relation to the spine, the reports chronologically opined (unedited):
“He also has lumbar degenerative disease which may well be responsible for his back pain and buttock pain. The buttock pain could however be due to the osteoarthritic change in the hip. It is often difficult to distinguish between the two and sometimes the best way to distinguish it is to inject the affected arthritic hip with local anaesthetic and hydrocortisone. Some eight times out of 10, if that is the source of the symptoms, it will relieve the symptoms for some months.[14]
There is in my opinion, no relationship between his injury on 23 July 2015 and anything in the back regarding pain that is produced by the pathology in the lumbosacral spine or the pathology in either hip.
He has never had any low back problems in the past and there is no relationship between low back pain that occurred three months after the work accident of 23 July 2015 and that accident. I do not agree with Dr Ferch that he had degenerative disease because of his employment. The degenerative disease in the lumbar spine is universal. Scheuermann's disease affects about 40% of the population. It is autosomal dominant. There is in my opinion, no post traumatic lesion present in the lumbar spine on the MRI undertaken that is unrelated to any frank incident in the past, in particular the incident of 23 July 2015.[15]
He has thoracolumbar Scheuermann's disease. That is an autosomal dominant condition affecting about 40% of the population, both men and women, and in all races, predisposing to low back pain in childhood, adolescence, and early adult life. In adult life, it makes degenerative disease exacerbations more severe and longer lasting than they otherwise would be. There is no relationship between his low back complaints and the aggravation to his left knee osteoarthritis that occurred on 23 July 2015. The x-rays taken two weeks post injury demonstrate no fracture in the left knee.[16]
In my opinion, none of the assessable impairment present, as at the time of examination on 7 November 2023, is a consequence of the accident on 23 July 2015. One therefore deducts the entire assessable impairment regarding the left knee. The right knee that was not injured has the same assessable impairment.”[17]
[14] Report dated 24 January 2017 – Folio 4 Reply.
[15] Report dated 24 January 2017 – Folio 5 Reply.
[16] Report dated 23 November 2023 – Folio 20 Reply.
[17] Report dated 23 November 2023 – Folio 23 Reply.
Dr Harvey,[18] Associate Professor Miniter[19] and Dr Reiter[20]
[18] Folio 24 – Reply.
[19] Folio 35 – Reply.
[20] Folio 43 – Reply.
These reports breach Regulation 44, and only the histories are admitted. To the extent they overlapped, the histories taken by these practitioners are consistent with those recorded by both Dr Bodel and Dr Smith.
FINDINGS AND CONCLUSION
I am burdened with determining whether the applicant sustained a consequential condition to the lumbar spine arising from his work related bilateral knee injury/condition which ultimately resulted in bilateral knee replacements.
Counsel referred me to a number of cases relating to the assessment of consequential injury, which unfortunately were lengthy and not straightforward. In an attempt to unravel the legal gymnastics and make the complex simple, I have extracted the key principles from the wide body of case law, which I will now refer to as my ‘consequential compendium’ however by no means is this summary exhaustive, relevantly:
i) the Workers Compensation Act 1987 (the 1987 Act) does not define a ‘consequential’ condition;
ii) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities;[21]
[21] Loxton v Vines and March v Streamer (E & MH) Pty Ltd [1191] HCA 12; (1991) 171 CLR 506.
iii) each case must be determined on its own facts;
iv) 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 s 4 of the 1987 Act;[22]
v) in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions;[23]
vi) a finding of a consequential condition does not require the identification of pathology;[24]
vii) a consequential injury occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
viii) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
ix) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
x) it is not necessary that the applicant prove that he suffered an injury to his lumbar spine, all he needs to demonstrate is that the symptoms arise from the accepted bilateral knee conditions;
xi) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury,[25] and
xii) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition.[26]
[22] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[23] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[24] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[25] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.
[26] As Deputy President Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
Reference to the ‘consequential compendium’ causes me to find the applicant has sustained a consequential condition to the lumbar spine arising from the accepted bilateral knee injury and condition because:
i) medical evidence in this and previous proceedings establishes the applicant experienced altered gait which caused back pain which was reported and treated as early as 2016;
ii) the medical evidence reveals that the applicant had no previous complaints of back pain prior to his 2015 injury;
iii) the altered gait was not corrected for a period of seven years (bilateral knee replacement surgery being undertaken only in 2022) which had a significant impact initially on the right lower extremity but also the lumbar spine;
iv) whilst degenerative lumbar disease was present at the time of the original injury, the medical evidence suggests the altered gait produced back symptoms. Whether this is an aggravation or degeneration of a disease is irrelevant, as I am not applying the definition of ‘injury’ nor identifying pathology. The medical evidence demonstrates on the balance of probabilities the applicant experienced symptoms in his lumbar spine arising from initially his left knee injury and then subsequently his consequential right knee injury, and
v) the medical evidence reveals no intervening events (apart from the initial workplace injury to the knees) that could be responsible for symptoms in the lumbar spine. There were pre-existing changes identified but the records show the applicant was asymptomatic.
I have not disregarded the respondent’s position and especially its criticism of the medical evidence generally. I accept that Dr Ferch considered that the lumbar spine symptoms arose from degenerative changes, however this assessment was made in 2016, prior to the advanced complaints in the right knee and subsequent findings of the Commission. It also does not take a history of the seven years of altered gait and any impact on the lumbar spine condition. Dr Bodel does make this connection, albeit not in the language summarised in the ‘consequential compendium’ above, but sufficiently to satisfy a causal connection without any subsequent contribution from non work related events. Overall I agree with the respondent and found the medical evidence to be rather untidy, especially since none of it really addresses the status of the altered gait post knee replacement. I am however satisfied and formally find, using the ‘common sense evaluation of the casual chain of events’ that the applicant has established that his symptoms in the lumbar spine have arisen from his bilateral knee conditions, and further that complaints existed as early as 2016. Obviously, I would have been better assisted by medical reports that perhaps referred to the definitions found in my ‘consequential compendium’, and perhaps reference to it would have ideally prevented this dispute, however as I am not required to establish an injury nor identify pathology, the failure is not fatal to the applicant’s case. I also note that there is no evidence to support the respondent’s submission that correction of the deranged gait pattern via bilateral knee replacement has alleviated lumbar spine symptoms. Further, in making my findings, I did not place great weight on the Oswald Inventory nor the Roland-Morris back pain questionnaire, such being self assessments, generally unreliable in the personal injury sphere. However, the questionaries confirm the nexus of back complaint following the knee injury as early as 2016. Further, I was not assisted by the respondent’s medical case as the qualified specialist clearly disregarded the previous determination of the Commission and failed to consider they key question of whether any altered gait or disability arising from the accepted bilateral knee injury/condition played any role in the development of the symptoms in the acknowledged degenerative lumbar spine.
SUMMARY
For the reasons above, I find that the applicant has a consequential condition in the lumbar spine and I will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.
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