McDermott v Toll Holdings Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McDermott v Toll Holdings Ltd [2025] NSWPIC 175
APPLICANT:	Elyssa Jade McDermott
RESPONDENT:	Toll Holdings Limited
MEMBER:	Fiona Seaton
DATE OF DECISION:	29 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; undisputed left ankle injury; disputed consequential lumbar spine condition; Held – the applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential lumbar spine condition as a result of the accepted left ankle injury on 10 May 2022. The Commission orders: 2. 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: 10 May 2022. Body systems/parts: lower left extremity (ankle) and lumbar spine (consequential injury). Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Elyssa Jade McDermott was employed by the respondent Toll Holdings Limited as a pick-packer from about 2021.
On 10 May 2022 the applicant was working at an E-store when she pulled out a 40kg box. The weight of heavy items inside shifted from the back to the front of the box and it fell on to her left lower leg and ankle.
The applicant reported the injury and liability was accepted on 16 May 2022.
Dispute notices were issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 8 February 2023 regarding the applicant’s entitlement to weekly compensation, and on 27 March 2023 following internal review maintaining the respondent’s work capacity decision.
A s 78 notice issued on 15 May 2023 disputed liability for the applicant’s left ankle and consequential lumbar spine injuries.
The applicant made a claim for lump sum compensation on 12 January 2024 for 13% whole person impairment with respect to her left ankle injury and consequential lumbar spine condition.
A s 78 notice was issued on 10 May 2024 disputing liability for the lump sum claim. The liability dispute for the left ankle and consequential lumbar spine injuries was maintained following internal review on 25 November 2024.
An Application to Resolve a Dispute (ARD) was lodged with the Personal Injury Commission (Commission) on 7 January 2025 claiming lump sum compensation for permanent impairment of the applicant’s left lower extremity and lumbar spine.
At the preliminary conference held on 20 February 2025 the respondent confirmed it accepted liability for the applicant’s left ankle injury.
The dispute was listed for conciliation conference and arbitration hearing on 9 April 2025.

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the applicant sustained a consequential lumbar spine injury as a result of injury on 10 May 2022.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 9 April 2025 in Sydney. Mr Dewashish Adhikary appeared for the applicant instructed by Mr Joel Tucker, legal representative. Mr Daniel Stiles appeared for the respondent instructed by Ms Joanne Palamara, legal representative. Ms Wonson was also present.
In conciliation the applicant submitted that if no finding is made of a consequential lumbar spine condition the matter is still referable to a Medical Assessor. The respondent’s view is that in that event, as the claim made for the left lower extremity is for 6% whole person impairment, it is not able to be referred for assessment. Submissions were made in the hearing.
I am satisfied 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 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

No application was made to call oral evidence.

Applicant’s evidence

The applicant relies on her statement signed on 26 October 2023.
At the time of the incident on 10 May 2022 the applicant was working 38 to 40 hours per week for the respondent as a pick-packer. She had not sustained any previous injuries to her left lower leg or ankle prior to this claim.
She describes pulling out the 40kg box to retrieve an item she was looking for, the heavy items inside coming from the back to the front of the box very quickly causing the weight of the box to fall on to her left lower leg/ankle.
After removing the box from her lower leg and ankle the applicant limped to the manager on duty. First aid was administered, she was advised to seek medical attention and she filled out an incident form.
The applicant arrived at a local doctor and was sent for an X-ray. She was in contact with the respondent to tell them what happened.
The respondent advised her to go on workers compensation and see their doctor, Dr Darabi.
The applicant saw Dr Darabi on 12 May 2022 and she did not return to the initial local general practitioner. Overall she felt Dr Darabi was not listening to her concerns and he was not interested in helping her.
While she was waiting for approval to see an orthopaedic surgeon Dr Darabi placed the applicant in the wrong cam boot (a controlled ankle motion boot, also known as a moon boot). She was later advised this boot was for foot injuries and not ankle injuries so it was not supporting her injury at all.
Dr Darabi sent her to a physio who signed off on the incorrect boot and gave her incorrect treatments for her ankle. The orthopaedic surgeon advised her to keep the cam boot on until instructed otherwise by the pain specialist. The respondent did not sign off on the applicant seeing a pain specialist for some time and she was in the cam boot for six months.
Because she wore the cam boot for too long it caused injury to her lumbar spine and hips due to the altered gait.
Dr Ramachandran, pain specialist, was shocked she had been given the incorrect boot and told her to change physio and doctors. The applicant changed to Sydney West Sports Medicine and Dr Fernando, general practitioner.
The applicant was referred for cortisone injections at Nepean Hospital by Dr Ramawat, orthopaedic surgeon. The injections were put in the wrong spot and she felt the cortisone go up the back of her leg. This made the injury worse and she was put back in a boot.
The applicant still experiences pain in her lumbar spine and hips which made it difficult to do daily activities. She was taking no medication for her injury.

Dr Yuk Kai Lee, independent orthopaedic surgeon

Dr Lee’s first report dated 12 December 2023 includes a history of the injury on 10 May 2022 consistent with the applicant’s statement.
Her current complaints include pain in her lower back, left buttock and down her leg. She became pregnant in May that year but she was not taking painkillers anyway. The applicant was having hydrotherapy which helped but the treatment stopped in May.
Dr Lee noted there was no CT or MRI of the lumbar spine. The doctor describes the applicant continuing to have pain in her left leg and that it has also affected her back. She had a bone scan showing S1 joint inflammation.
The diagnosis made is of soft tissue contusion to the left leg and ankle. Dr Lee says “[t]he way she was walking can cause secondary injury to her back.”[1] The doctor was concerned she may have developed chronic clots in her left leg and wanted her to have a Doppler study to exclude chronic venous congestion.
[1] ARD page 54.
When asked about the relationship between the initial left ankle injury and the consequential lumbar spine and hip injures Dr Lee responds;
“[s]he used the cam boot for a long period of time. The cam boot has a fixed sole, which would tilt her pelvis when she was walking and this can affect her lumbar spine especially if she had some minor asymptomatic pre-existing degeneration.”[2]
[2] ARD page 55.
Dr Lee notes the applicant’s work could have affected some degeneration but there is no investigation to confirm or exclude degeneration in the back.
Following his examination, an assessment is made by Dr Lee of permanent impairment of the applicant’s lumbar spine of 5% whole person impairment with 2% due to the effects on activities of daily living, in addition to his assessment of 6% whole person impairment of the left ankle.
In Dr Lee’s supplementary report of 2 October 2024 he comments that the applicant was using the boot for over seven months and the “altered gait can aggravate her back problems.”[3]
[3] ARD page 61.
When asked about whether the altered gait affected the applicant’s lumbar spine without the presence of any asymptomatic pre-existing degeneration, Dr Lee notes there were no scans available to document if there was degeneration.
Under normal circumstances Dr Lee says a truly ‘normal’ lumbar spine would not be affected by the limping, however if the applicant did not have asymptomatic pre-existing degeneration the limping would unlikely cause ongoing issues in her back.
Dr Lee confirms his opinion that the frank injury on 10 May 2022 was the main contributing factor to the consequential lumbar spine injury the applicant now suffers from.

Investigation reports

The report of the MRI of the left ankle dated 29 August 2022 concludes that no significant abnormality was detected.
The nerve conduction study of 5 October 2022 concludes there were no electrophysiological features to support a left sided tarsal tunnel syndrome, a left peroneal nerve lesion, a left lumbosacral plexopathy or a generalised neuropathy.

Central West Orthopaedics

The clinical records of Central West Orthopaedics include three reports of Dr Sunil Ramawat, orthopaedic surgeon.
On 20 July 2022 Dr Ramawat notes the history of the applicant’s ankle injury and that she has an antalgic gait. The doctor’s interpretation of her condition is post-traumatic ankle synovitis and he organised a cortisone injection.
On 25 August 2022 Dr Ramawat notes the injection did not help and he organised a repeat MRI scan of the ankle and nerve conduction studies and gave tarsal tunnel syndrome as an alternate diagnosis.
Dr Ramawat notes the applicant is still wearing the moon boot and he gives her a referral for a new moon boot which will be much more secure.
On 18 October 2022 Dr Ramawat reports on the new MRI scan of the ankle and the nerve conduction studies. The doctor is unable to identify any organic cause for her discomfort and refers her to Dr Ramachandran, pain specialist.

Sydney West Sports Medicine

The clinical records of Sydney West Sports Medicine are with the ARD.
Mr Michael Ilett, physiotherapist, reports on 31 August 2022 the applicant was fitted with a short cam boot for two months by a physiotherapist and she was referred to Sydney West Sports Medicine by Dr Ramawat for a second opinion and ongoing physiotherapy. She was being weaned off the high cam boot she was currently in.
Mr Ilett notes on 14 November 2022 that the applicant at Dr Ramawat’s suggestion returned to a cam boot due to her ongoing pain, although her compliance in the boot is poor due to discomfort. He recommended gradually weaning her out of the cam boot.
On 7 and 28 March 2023 the applicant was noted as suffering from some ongoing lower back and right hip pain related to prolonged use of her cam boot, which she reported she no longer used because of this pain.
On 2 May 2023 a report includes that the applicant was still waiting for approval of the pain management program from the insurer and that the whole body bone scan found some mild left SIJ activity in keeping with her lower back pain. The applicant presented with foot and back pain.
The clinical records of Sydney West Sports Medicine on 31 August 2022 include the applicant was fitted with a new boot the previous week by a new physio, and on objective assessment the applicant had an antalgic gait, and cam boot on left ankle.
On 6 September 2022 there is a record made that the applicant is to have increased time out of the cam boot to include outside at home, and she is to continue weaning off the cam boot.
On 15 September 2022 the applicant reports less use of the cam boot, only using it when going out to the shops, and on 23 September 2022 she continues to progress out of the cam boot (only for school pickup and shopping).
On 19 October 2022 it is noted the applicant had not worn the boot all week. The boot was fitted with three heel lifts, reduced to two by 26 October 2022.
On 16 December 2022 the records include “LSp and hip sore with driving, any bumps”[4] which can shoot down to the knee, and the applicant feels it is out of whack due to being in the boot.
[4] ARD page 145.
There was a flare up of back pain noted on 17 January 2023 and 30 March 2023.
Dr Gothelf, treating foot, ankle and shoulder surgeon, reports on 29 March 2023 that the applicant wore a boot for about six months, she saw a specialist and was placed in another, the boot did not work and she took the boot off.

Dr Alister Ramachandran, pain specialist

Dr Ramachandran reports to Dr Ramawat on 6 April 2023 following his initial review of the applicant. The doctor notes she now presents with lower back pain symptoms and bilateral hip pain.
On 11 April 2023 Dr Baraa Kassim, rehabilitation consultant physician, notes the applicant had a period of immobilisation in a cam boot which lasted for six months and after that she noticed she had increasing pain in her left foot but she also started to have low back pain and hip pain.
Dr Kassim also notes Dr Ramawat recommended changing the cam boot to a different type. She wore the second boot until February 2023 when she could not tolerate it anymore due to the increase of back and hip pain. Her pain including back pain had been limiting her functional tasks.
The applicant’s current presentation did not meet the criteria for complex regional pain syndrome diagnosis in Dr Kassim’s opinion.

Mt Druitt Medical and Dental Centre

Dr Daryosh Darabi, general practitioner, notes the applicant’s injury on 12 May 2022. On
16 May 2022 Dr Darabi records a plan including cam boot for two weeks, which was fitted that day.
On 30 May 2022 Dr Darabi records the applicant finished two weeks wearing the cam boot and she was unable to walk properly due to pain in the left shin, and the plan included no cam boot.
Dr Chitra Fernando, general practitioner, records on 13 June 2022 the applicant had an antalgic gait. Fitting with a higher cam boot is recorded on 26 August 2022.
On 31 August 2022 Dr Fernando notes the specialist had commented on the applicant using the wrong boot.
Dr Fernando notes the applicant is limping on 12 April 2023.
Mr Jeffery Yuen, physiotherapist, reports on 25 August 2022 that the applicant was fitted into a high rise cam boot and advised her to continue full weight-bearing.
The clinical records also include a handwritten report of Dr Fernando to the insurer dated
20 December 2022. Dr Fernando thought the applicant could remove the cam boot and he had advised her to do so. She had said she needed it for relief of pain and swelling and she was wearing it against his advice. The doctor had told her to stop wearing it.

Respondent’s evidence

The respondent relies on its s 78 notices of 8 February 2023, 27 March 2023, 15 May 2023, 10 May 2024 and 25 November 2024.

Dr Raymond Wallace, independent orthopaedic surgeon

Dr Wallace provided four reports to the respondent dated 9 May 2023 and six reports dated 18 March 2024.
On 9 May 2023 Dr Wallace records a history including that in October 2022, some five months post-injury, the applicant noted the onset of lumbar spinal pain radiating to her bilateral buttocks.
The applicant now complains of constant aching pain at the lumbar spine that Dr Wallace notes is in the region of the L4/5 spinous process. Following his examination Dr Wallace records the applicant’s gait is normal and she does not limp. The diagnosis was made of soft tissue injury left distal shin and left ankle, now resolved.
In a further report of 9 May 2023 Dr Wallace is asked if the applicant has any complaints arising out of her lumbar spine and hips. Dr Wallace’s opinion is there is no objective medical evidence that the applicant suffered any injury at the lumbar spine as a result of the work incident on 10 May 2022.
Dr Wallace states the mechanism of injury the applicant describes of a shelf falling and striking her left lower shin is not consistent with it being the cause of any significant lumbar spinal pathology. The applicant did not note the onset of lumbar spinal pain until October 2022, some five months post-injury. Her current lumbar spinal symptoms are entirely unrelated to any work incident on 10 May 2022 in the doctor’s opinion.
The further two reports of Dr Wallace dated 9 May 2023 do not address the issue in dispute in these proceedings.
The applicant was re-examined by Dr Wallace on 6 March 2024.
In his report of 18 March 2024 Dr Wallace records the applicant’s present complaints included at the lumbar spine a constant aching pain at the L4/5 spinous process radiating to the left posterior superior iliac crest and radiating to the posterior aspect of the left leg to the level of the foot. She notes stiffness at her lumbar spine.
In Dr Wallace’s opinion there is no objective medical evidence that the applicant suffered any work-related injury at her lumbar spine at the time of her work incident on 10 May 2022.
In a supplementary report of 18 March 2024 Dr Wallace notes the applicant complains of ongoing symptoms at her lumbar spine, and states again there is no objective medical evidence that she has suffered any work-related injury at her lumbar spine as a result of the work incident of 10 May 2022.
In the second supplementary report of 18 March 2024 Dr Wallace confirms the applicant is suffering from no work-related condition at her lumbar spine. The doctor notes she has undergone no investigations in regard to her lumbar spine condition to date to assist with diagnosis as to the cause of her current lumbar spinal symptoms.
The further two supplementary reports of 18 March 2024 do not address the issue in dispute in these proceedings.
In the fifth supplementary report dated 18 March 2024 Dr Wallace provides his opinion that the applicant’s work-related injury of 10 May 2022 has resolved. She has suffered no whole person impairment as a result of injury at her lumbar spine or left ankle in the doctor’s opinion as a result of the work incident.

SureFact Activity investigation report

The SureFact investigation report of 16 January 2023 was prepared following a period of surveillance to establish the current level of the applicant’s activity.
Surveillance of the applicant was carried over 60 hours between 30 November 2022 and
7 January 2023.
On 8 December 2022 the applicant was reported as walking upright, unaided and with normal gait and she was not wearing a moon boot. On 16 December 2022 the applicant was reported as walking upright, unaided and without the use of a moon boot or any visible aids. The applicant was not wearing a moon boot when seen on 17 December 2022 and
7 January 2023.
An additional observation was made that the applicant did not manifest any obvious indication of injury, impairment, restriction or discomfort and that she walked upright, unaided and without the use of a moon boot or any visible aids, contrary to her claim.

Photographs attached to the report show the applicant walking without wearing a moon boot.

Investigation reports

The MRI scan of the left ankle report dated 18 June 2022 concludes the study was normal.
The MRI scan of the left ankle report dated 29 August 2022 is referred to above.
The neve conduction study report of 5 October 2022 is also referred to above.

Clinical notes

The clinical notes of Penrith Orthosports includingthe report of Dr Gothelf dated
29 March 2023 are referred to above.
The clinical notes of Mt Druitt Medical and Dental Centre include the records referred to above with updated records including that on 1 February 2024 when she was examined postpartum the applicant says she has back pain.
The clinical records of Central West Orthopaedics are referred to above, as are the records of Dr Ramachandran and Sydney West Sports Medicine.

RehabLife

The Vocational Assessment Report of RehabLife is dated 30 November 2022.
The Injury Background includes that the physiotherapist recommended the applicant wear a cam boot which was supportive of her foot and not her ankle. She was later advised by the specialist it was the wrong type of boot to support her injury however at the time she was not aware of this.
The report notes that following the unsuccessful cortisone injection the applicant’s specialist then advised her she was wearing the wrong cam boot and provided her with advice on the correct one she should be wearing to support her ankle.
The applicant reported wearing a cam boot every day aside from during physiotherapy or hydrotherapy and typically she took it off at home. A factor noted as affecting vocational rehabilitation was that she continues to wear a cam boot and she had not been advised to remove it.
RehabLife requested approval from Dr Darabi on 25 November 2022 for vocational options in regard to the applicant’s medical and functional suitability.
Dr Darabi approved each of the vocational options and for each noted the applicant was wearing a cam boot.

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 dispute is essentially whether the applicant sustained a lumbar spine condition that is causally related to the accepted left leg and ankle injuries sustained on 10 May 2022.
The respondent relies on the opinion of Dr Wallace. The applicant’s submission is that
Dr Wallace has not considered the correct question regarding causation of the consequential lumbar spine condition.
Dr Wallace has focused on the lumbar spine condition not having been injured on the specific frank injury date and that is not the claim before the Commission or the applicant’s case.
All that is necessary is for the applicant to establish a material contribution between the accepted injuries and the consequential condition.
In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd[5] the High Court said it must be established that the loss is caused or materially contributed to by the respondent, which requires only that the act or omission of a wrongdoer plays some part in contributing to the loss.
[5] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [45].
In an earlier decision of Gould v Vaggelas[6] Wilson J said that a relevant cause is sufficient so long as it plays some part, even if only a minor part, in contributing to the relevant consequence.[7]
[6] [1984] HCA 68.
[7] Gould v Vaggelas [1984] HCA 68 at [3].
The applicant submits that there is no doubt the accepted left leg and ankle injuries made a material contribution to the development of the consequential lumbar spine condition.
The applicant notes there is no need to find a diagnosis or a pathology for a consequential condition to be established, and the experiencing of symptoms by an applicant is sufficient. Kumar v Royal Comfort Bedding Pty Ltd[8] is not only instructive for that proposition but a similar dispute was raised relying on a similar opinion of Dr Wallace.
[8] [2012] NSWWCCPD 8 (Kumar).
In Kumar notwithstanding being aware of the allegation of an onset of symptoms subsequent to an injury condition, Dr Wallace focused upon whether those conditions were injured in the incident itself. Roche DP found that the failure to address the correct issue meant that the report was fundamentally flawed and Dr Wallace’s conclusion should have been rejected.[9] The applicant seeks a similar finding to be made in respect of Dr Wallace’s opinion in this matter.
[9] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [10] and [57].
Turning to the evidence, the applicant’s statement provides the underlying factual basis that she relies on and there is no medical, expert evidence or lay evidence challenging causation in this case.
The applicant describes how the injury occurred, that she reported it and her treatment initially was with the company doctor Dr Darabi.
Dr Darabi placed her in the wrong cam boot. The effect of that continued as the orthopaedic surgeon advised her to keep the cam boot on until instructed otherwise by the pain specialist and the respondent did not sign off on her seeing a pain specialist for about six months.
The wearing of the cam boot caused the condition of the lumbar spine due to the altered gait whilst walking. This was rectified by the specialist and she changed her physio and doctors as well. She had cortisone injections which made her condition worse and she continues to experience ongoing limitations and disabilities in her lumbar spine.
The applicant’s lay evidence is supported by the treating practitioners both on a factual and medical basis.
In Dr Ramawat’s report of 25 August 2022 he notes he gave the applicant a referral for a new moon boot, consistent with her evidence, and a new physio was recommended to be consulted.
Mr Yuen, a new physiotherapist, reports on 25 August 2022 the applicant was fitted into a new high rise cam boot, and again the applicant’s evidence is supported by the treating evidence.
On 26 October 2022 in the Sydney West Sports Medicine records there is support for the applicant’s case in that an alteration was made to the moon boot itself and she is only wearing the moon boot at that time when she is outside the house.
In the record made on 31 August 2022 the applicant says a new boot was fitted last week by a new physio and this has helped progress. Under the heading ‘Objective Assessment’ there are objectively verifiable issues including antalgic gait and symptoms of the lumbar spine.
There are also reports of Sydney West Sports Medicine. On 31 August 2022 Mr Michael Ilett notes an ongoing issue of the left ankle and recommends consulting a pain physician.
On 7 March 2023 the physiotherapist notes the applicant has also been suffering from some ongoing lower back and right hip pain related to prolonged use of her cam boot, which she has reported she no longer uses because of this pain.
Dr Kassim, rehabilitation physician, reports on 1 April 2023 that although there were no acute fractures the applicant has a period of immobilisation in a cam boot which lasted for six months. After that period she noticed an increasing pain level in her left foot but also she started to have low back pain and hip pain.
Dr Kassim notes she was referred to Dr Ramawat who recommended changing the cam boot to a different type that she found more comfortable. She wore that boot until February that year when she could not tolerate it anymore due to the increase in back and hip pain. The applicant was limited in her functional tasks due to the exacerbation of the left lower limb pain as well as the hip and back pain.
The general practitioner records on 31 August 2022 the specialist commented on the wrong boot which she was using and therefore she changes the physio to Sydney West physio.
On 28 July 2022 Dr Fernando notes the applicant’s condition got worse after she underwent an injection.
Dr Fernando in his handwritten report of 20 December 2022 says he advised the applicant to remove the cam boot and she did not need to wear it all the time.
The applicant’s submission is that based on the totality of the evidence and on the balance of probabilities it would be found that the applicant was wearing the boot as alleged and the boot caused the lumbar spine issues as alleged.
In his first report of 12 December 2023 Dr Lee, consistent with the applicant’s evidence referred to above, notes the applicant sustained a condition to her lumbar spine and refers to the wearing of the cam boot. The issues with the injection are also noted.
Dr Lee says the diagnosis is a soft tissue contusion to the left leg and ankle and the way she was walking can cause secondary injury to her back.
Regarding causation Dr Lee says the applicant used the cam boot for a long period of time, it has a fixed sole which would tilt her pelvis when she was walking and this can affect her lumbar spine, especially if she had some minor asymptomatic pre-existing degeneration.
The applicant submits that Dr Lee’s opinion is not a mere hypothesis. He has not only addressed the factual circumstances but he has applied his specialised knowledge and indicated how the wearing of the incorrect moon boot would cause the consequential condition to the lumbar spine. It is certainly not a bare ipse dixit and he has provided a well-reasoned opinion.
Dr Lee’s second report dated 2 October 2024 includes a history that is consistent with the history in the medical and lay evidence before the Commission. Dr Lee when asked to reconsider the circumstances of the matter maintained his opinion that using the boot for seven months caused the altered gait and aggravated the applicant’s lumbar spine issues.
The lay evidence, the treating evidence and the expert evidence point to the conclusion that the applicant’s lumbar spine condition is related to the accepted left ankle injury.
The only dispute comes from the reports of Dr Wallace. In his reports of 2023 and 2024
Dr Wallace is searching for a frank injury to have occurred on 10 May 2022.
This is immediately apparent in his report of 9 May 2023. Dr Wallace notes the applicant’s complaints with respect to the lumbar spine which she sustained after the incident itself.
Notwithstanding this history, in his first supplementary report of 9 May 2023 Dr Wallace says there is no objective medical evidence that the applicant suffered an injury at her lumbar spine as a result of the work incident on 10 May 2022. He focussed on the mechanism, that the shelf fell and struck her left lower shin, and that this is not consistent with being the cause of any significant lumbar spinal pathology.
The applicant’s submission is that Dr Wallace has completely missed the mark here and his report does not assist the Commission.
Dr Wallace does note the symptoms arose in about October 2022, five months post injury, however there is no proper reasoning provided as to why he did not address the claim as made which is regarding a consequential condition.
In the second lot of reports dated 18 March 2024 Dr Wallace again seems to have been provided with the correct history of the onset of the pain and the cause of the onset of the pain including wearing of the moon boot.
Nevertheless when you have regard to his opinion he again focused on there not being objective evidence to show the applicant suffered any work-related injury at her lumbar spine at the time of her work incident on 10 May 2022.
In the second supplementary report of 18 March 2024 Dr Wallace focuses upon a pathology or a diagnosis, however in cases such as Kumar and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[10] there is no requirement for an applicant to establish diagnosis or a pathology. Symptoms are sufficient, which the applicant certainly has in this case. If diagnosis is needed the applicant refers to Dr Lee’s opinion.
[10] [2016] NSWWCCPD 23 (Brennan).
The applicant submits the Commission would be satisfied on the balance of probabilities she sustained a lumbar spine condition as a result of what occurred on 10 May 2022.
Should it be found the lumbar spine was not injured, the applicant relies upon what Parker ADP stated in cases such as Shankar v Ceva Logistics (Australia) Pty Limited[11] and more recently in Transdev NSW South Pty Ltd v Twining;[12] the fact that there is a dispute that exists, notwithstanding the percentage in dispute, means it is a medical assessment matter or a medical dispute to be determined by an independent Medical Assessor.
[11] [2021] NSWPICPD 18 (Shankar).
[12] [2024] NSWPICPD 12 (Twining).
In Twining Parker ADP considered cases such as Voudouris v TDV Constructions Pty Ltd[13] and distinguished that and provided reasons as to why Shankar should be followed.
[13] [2023] NSWPICPD 53 (Voudouris).
The applicant’s submission is that the reasoning in Shankar should be followed so that if a finding is made that the applicant has not sustained a consequential lumbar spine condition, the matter should be referred to a Medical Assessor for assessment of the left lower extremity.

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 s 78 notice of 15 May 2023 sets out the dispute of the alleged consequential lumbar spine condition. That dispute is primarily supported by the opinion of Dr Wallace together with some surveillance and other investigations referred to in the notice, and is reiterated in a further s 78 notice of 10 May 2024.
It is clear the applicant did have an injury to the left ankle on 10 May 2022. That is accepted, albeit the respondent’s position is that the effects of that injury have resolved, which is potentially a question for a Medical Assessor to determine.
In terms of the relatively contemporaneous medical evidence there is certainly no suggestion that the applicant was complaining of symptoms in the lumbar spine in the immediate aftermath of the ankle injury in May 2022.
The report of Dr Ramawat of 20 July 2022 focusses on the left ankle injury and makes no reference to lower back symptoms or complaints.
In Dr Ramawat’s next report of 25 August 2022 a repeat MRI scan was organised and nerve conduction studies, and Dr Ramawat made no reference to symptoms in the back or the hips.
The investigations undertaken following that assessment including the MRI scan of the ankle of 29 August 2022 suggested no significant abnormality in the ankle. The nerve conduction studies on 5 October 2022 showed no relevant abnormality.
The applicant went back to Dr Ramawat on 18 October 2022, approximately five months post-injury, and he confirms those findings, that the MRI is essentially normal as are the nerve conduction studies.
The doctor is unable to identify any organic cause for the applicant’s discomfort, he does not recommend any orthopaedic intervention and suggests she consider a pain specialist. Relevantly again there is no mention made at that point of symptoms in the lower back or lumbar spine.
The physiotherapist treating the ankle symptoms goes on to make reference to symptoms in the lower back.
While the respondent accepts that material is before the Commission, it draws attention to the surveillance investigation report of 16 January 2023 which covers the span of November 2022 to January 2023, a period of 11 days.
When the applicant was seen on occasion during that period she was noted to walk in a normal manner with no sign of restriction, walking upright, unaided and in particular without the use of the moon boot or any visible aids.
The applicant referred to the record of the general practitioner made in December 2022 that suggested she did not need to use the cam boot at all times, however the respondent says this is important given the applicant’s statement evidence and the assertion surrounding the consequential condition being attributable to the use of the cam boot in particular.
Dr Gothelf on 29 March 2023 refers to his assessment of the left ankle injury, acknowledges that the applicant obtained no benefit from the cam boot and took it off, and she had a cortisone injection that made her condition worse.
Dr Gothelf considered whether chronic regional pain syndrome was an appropriate diagnosis and made a referral to a pain specialist. From an orthopaedic perspective Dr Gothelf said there was no need for further investigations as those that had been previously undertaken, including the MRI in March 2023, showed no structural abnormalities.
Importantly Dr Gothelf in March 2023 recorded no mention of back pain or symptoms. It is not until the applicant sees Dr Ramachandran, pain specialist, in April 2023 that any of the treating specialists start to refer to lower back symptoms.
With respect to the there being no requirement to have a diagnosis regarding consequential injuries, the respondent refers to Grant v Dateline Imports Pty Ltd[14] in which Wood DP says each case turns on its own facts and sometimes it would be of assistance for a diagnosis to be available in the context of dealing with tension between alleged symptoms and a consequential condition.[15]
[14] [2022] NSWPICPD 3 (Grant).
[15] Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 at [85] – [86].
The respondent says that is so in this case.
Dr Lee seems to suggest that is so as well. In his first report of 12 December 2023 Dr Lee refers to the fact the applicant was 30 weeks pregnant, due in February 2024. The doctor does not comment further as to whether that may in any way have been a factor in her back symptoms. He refers to investigations relating to her ankle, the MRI scans, the nerve conduction studies, and diagnoses a soft tissue contusion to the left leg and ankle.
Dr Lee says the way she was walking could cause a secondary injury to her back but when the question is asked specifically about the consequential condition he says the cam boot tilting her pelvis can affect the lumbar spine, especially if there is minor asymptomatic pre-existing degeneration.
We do not know if there is pre-existing degeneration as there is no radiological or other evidence to enable that conclusion as none of the treating doctors have ever investigated the lumbar spine.
Dr Lee specifically notes there is no investigation to confirm or exclude degeneration in her back.
In Dr Lee’s subsequent report of 2 October 2024 he says there are no scans available at the time of consultation to document if there was degeneration, and a normal spine would not be affected by limping and limping would be unlikely to cause ongoing issues in the applicant’s back if she did not have asymptomatic pre-existing degeneration.
The respondent’s submission is there is still a question mark here. Dr Lee refers to it again in his second report. There is no evidence the applicant had any pre-existing degenerative changes in her lower back, there are no scans or any evidence dealing with the applicant’s lumbar spine.
That is why, consistent with what Wood DP says in Grant, in some cases it is useful for there to be a diagnosis. In this case the respondent says Dr Lee seems to be crying out for some confirmation of what the diagnosis is of the lumbar spine but there is no objective evidence to enable that to be confirmed or otherwise.
The applicant is critical of Dr Wallace’s reports but the respondent submits the doctor has dealt with the question of a consequential or indeed any lumbar spine condition appropriately.
In Dr Wallace’s first report of 9 May 2023 he acknowledges the applicant complained of some symptoms in the lower back radiating to the bilateral buttocks in about October 2022. That is the history he is given and records.
Dr Wallace diagnoses a soft tissue left distal shin and left ankle injury that has resolved, which is largely consistent with Dr Lee’s diagnosis in relation to the ankle and leg condition. Dr Wallace notes the radiological investigations show no abnormality in the ankle.
In his supplementary report of 18 March 2024 Dr Wallace says there is no objective medical evidence supporting a lumbar spine condition.

The respondent’s submission is that is exactly what Dr Lee is observing, in that there is no objective medical evidence, no scans and no investigations showing any problem with the lumbar spine.
Dr Wallace’s second report of 18 March 2024 confirms the history with the onset of lower back symptoms in October 2022, provides a similar diagnosis of the ankle, and notes there has been no further treatment of the lumbar spine. Under the heading ‘Opinion’ the doctor refers to the applicant reporting no further history of injury of the lumbar spine or left ankle.
Dr Wallace reiterates his view that there is no objective evidence of injury to the lumbar spine, which the respondent submits is consistent with the fact there is no objective investigations to suggest there is any lumbar spine pathology.
In the supplementary report Dr Wallace is asked whether he considers there is a back injury or condition and he reiterates there are no investigations of the lumbar spine to assist with diagnosis as to the cause of the current lumbar spinal symptoms.
The respondent submits that Dr Lee and Dr Wallace are largely on the same page when they both acknowledge there are no investigations that deal with the lumbar spine.
Dr Lee makes the jump that there is a consequential condition, but he hedges and says without the evidence or the scans it is difficult to know whether there has been an aggravation of a pre-existing degenerative condition because we do not know if there is one.
The respondent’s submission is that in circumstances where the applicant bears the onus the Commission would not be satisfied there is a consequential lower back condition and there should be an award entered in favour of the respondent in relation to the alleged consequential lumbar condition.
Dr Lee assesses 7% whole person impairment of the lumbar spine and 6% of the left lower extremity. Despite the applicant’s submission regarding Shankar and Twining, the President’s view in Voudouris, which effectively rejects Shankar in light of the Court of Appeal’s decision in Skates,[16] should be accepted.
[16] Skates v Hills Industries Ltd [2021] NSWCA 142.
The respondent’s submission is if it is a claim limited to 6% whole person impairment it would not be a valid claim. The respondent urges acceptance of Voudouris while accepting there is a tension between Voudouris and the subsequent decision in Twining, and in light of Court of Appeal’s decision in Skates.

Applicant’s submissions in reply

On the issue of whether or not there was degeneration of the applicant’s lumbar spine, in civil litigation the applicant is not required to corroborate the factual circumstances that she is relying upon. That is made clear in cases such as Chanaa v Zarour.[17]
[17] [2011] NSWCA 199.
The matter is to be determined on the basis of the whole of the evidence before the Commission.
Dr Lee has provided two reports and his opinion is quite clear when his reports are read wholly and fairly. In the doctor’s opinion, notwithstanding there not being investigations undertaken, there was degeneration of the applicant’s lumbar spine as otherwise the limping would not have caused her consequential condition.
Dr Lee says under normal circumstances a truly normal lumbar spine would not be affected by limping and he therefore concluded that this can affect her lumbar spine.
The applicant submits there is no ambiguity or uncertainty about Dr Lee’s opinion when read as a whole. He has found the applicant does have degeneration.
Dr Lee is an orthopaedic surgeon and there is no cogent expert evidence to suggest an orthopaedic surgeon cannot make an opinion or cannot form the conclusion that degeneration exists. Dr Wallace does not say that and no treating specialist says that.
In the absence of expert evidence to say an orthopaedic surgeon cannot provide the opinion of the existence of asymptomatic degenerative disease, the requirement that such an opinion cannot be formed without investigation is not able to be made by the Commission.
There is no permissible basis in the applicant’s submission that would allow Dr Lee’s opinion that degeneration did exist in the lumbar spine to not be accepted.
Turning to the submission about a requirement for diagnosis discussed in Grant, this was addressed by Wood DP in the context of causation. There is no ambiguity in this matter about what caused the applicant’s lumbar spine symptoms. It was caused by her wearing the boot and the altered bio-mechanical state caused by the boot, so the requirement for diagnosis does not arise in this case. The applicant referred to the tension discussed in Grant.[18]
[18] Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 at [78] and [85].
The surveillance depicts the second period of wearing the moon boot. The applicant had already been misdiagnosed and mis-prescribed the boot initially and the applicant’s general practitioner had recommended she not wear the moon boot all the time. There is nothing untoward in what is depicted in the SureFact report.
Very limited or no weight should be given to that report in the applicant’s submission as there is no footage, only still pictures are provided, and it contains an opinion from a lay operative as to medical matters.
The applicant does not accept and disputes that there is no significant abnormality to the left ankle, including on the basis of Dr Gothelf’s opinion of partial complex regional pain syndrome. That is not the applicant’s case and there is no requirement for there to be significant abnormality. There is no dispute the applicant was required to wear a boot.
Dr Wallace focuses upon the incident itself and that is the basis of his opinion as to why the lumbar spine was not causally related to this incident. This is not the case brought by the applicant.

FINDINGS AND REASONS

The applicant sustained a consequential lumbar spine injury

That the applicant experiences pain in her lumbar spine is not disputed. The applicant’s lower back pain is referred to in her statement evidence and by Dr Ramachandran, Mr Ilett, Dr Kassim, Dr Lee and Dr Wallace.
The dispute is whether the applicant’s lumbar spine condition was caused by the accepted left ankle injury.
The applicant must establish on the balance of probabilities that the symptoms and restrictions in her lumbar spine result from her accepted left ankle injury.[19]
[19] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45]-[46].
The applicant is not required to establish that the consequential lumbar spine condition is an ‘injury’ pursuant to s 4 of the 1987 Act.[20] It is also not necessary for her to identify pathology for a finding to be made of a consequential injury.[21]
[20] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [56].
[21] 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].

The applicant must establish the accepted left ankle injury has materially contributed to her lumbar spine condition even where there may be other causes.[22]
[22] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
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.[23] There must be actual persuasion of the occurrence or existence of a fact before it can be found.[24]
[23] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [464]; 10 NSWCCR 796 (Kooragang).
[24] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
In Kumar Roche DP confirmed Kooragang is the test to determine if a consequential condition arises from an injury.
The evidence in this case supports a finding that the applicant’s lumbar spine condition is a consequential condition arising from the accepted left ankle injury on 10 May 2022.
The applicant was placed into a cam boot as the result of the injury to her left ankle on
10 May 2022, although she did not wear it all the time;
(a)    Dr Darabi arranged for the applicant to be fitted with a short cam boot on
16 May 2022;
(b)    Dr Ramawat noted on 20 July 2022 she had an antalgic gait and she had used a moon boot for about four weeks;
(c)    on 25 August 2022 Dr Ramawat gave her a referral for a new moon boot which would be much more secure,and this was fitted on 26 August 2022;
(d)    the applicant’s statement evidence is that Dr Ramawat advised her to keep the boot on until instructed otherwise by a pain specialist;
(e)    the applicant first saw Dr Ramachandran, pain specialist, on 6 April 2023;
(f)    in September 2022 Mr Ilett notes the applicant was to have increased time out of the boot and continue weaning off the boot;
(g)    in October 2022 the applicant had not worn the boot all week;
(h)    the boot was fitted with three heel lifts, reduced to two heel lifts by October 2022;
(i)    on 20 December 2022 Dr Fernando reports he advised the applicant to stop wearing the boot however she said she needed it to relieve pain and swelling, and
(j)    the high boot was worn until February 2023.
Dr Lee formed the opinion that by using the cam boot for a long period of time, due to a fixed sole which tilted her pelvis when walking, the applicant suffers with a consequential lumbar spine injury.
Although Dr Lee says the way the applicant was walking “can cause secondary injury to her back”[25] and “[t]he altered gait can aggravate her back problems”,[26] he concludes the frank injury on 10 May 2022 was the main contributing factor to the consequential lumbar spine injury.
[25] ARD page 55.
[26] ARD page 61.
Dr Lee reaches his conclusion on the basis that using the cam boot for a long period of time would tilt her pelvis when walking and can affect her lumbar spine especially if she had some minor asymptomatic pre-existing degeneration.
There are no investigations such as scans regarding the applicant’s lumbar spine to assist with a diagnosis of the cause of her lumbar spine symptoms.
While acknowledging the absence of investigations to confirm or exclude degeneration,
Dr Lee provides his reasoning for accepting the lumbar spine as a consequential condition; a ‘normal’ lumbar spine would not be affected by the limping so that without asymptomatic pre-existing degeneration the limping would be unlikely to cause ongoing issues in the back.
I accept the applicant’s submission that Dr Lee formed the opinion that there was asymptomatic pre-existing degeneration in concluding the lumbar spine condition is a consequential injury, and I note the doctor assessed the resulting permanent impairment.
As an expert orthopaedic surgeon Dr Lee is able to form the opinion that there was asymptomatic pre-existing degeneration of the applicant’s spine as the applicant submits, on the basis of his consideration of the history of the injury, which is consistent with the other medical evidence, his examination, and in the absence of corroborating evidence.[27]
[27] Australian Traineeship System v Turner [2012] NSWWCCPD 4, Chanaa v Zarour [2011] NSWCA 199 at [86].
Dr Lee is not required to “offer chapter and verse in support of every opinion”.[28] Dr Lee has complied with the principles governing expert evidence in my view by providing an explanation and the reasons for forming his opinion, and I accept his opinion is not a bare ipse dixit.[29]
[28] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
[29] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
I do not agree with the respondent’s submission that a question remains in Dr Lee’s reports on the diagnosis of degeneration of the spine.
As I am of the view that Dr Lee diagnoses degeneration of the applicant’s spine, the issue discussed by Wood DP in Grant regarding whether identifying a diagnosis may be necessary depending on the facts of a particular case before a finding is made of a consequential condition falls away. In this case, unlike in Grant, there is a clear diagnosis provided by
Dr Lee of degeneration of the spine which has been affected by prolonged wearing of the cam boot.
I am satisfied Dr Lee’s expert evidence provides a satisfactory basis to find the lumbar spine condition results from the prolonged wearing of the cam boot which the applicant used as a result of the accepted left ankle injury on 10 May 2022.
Support for Dr Lee’s opinion is found in the reports of Mr Ilett and Dr Kassim who record the applicant suffered back pain as a result of prolonged use of the cam boot.
Dr Wallace provides an alternative view.
Dr Wallace reports on 9 May 2023 and 18 March 2024 that the applicant suffered no lumbar spine injury on 10 May 2022 and that she noted the onset of lumbar spine pain in October 2022.
As the respondent submits Dr Lee and Dr Wallace agree there are no scans or investigations with respect to the applicant’s lumbar spine. Unlike Dr Lee however Dr Wallace does not provide an opinion as to the diagnosis or cause of the lumbar spine symptoms.
Dr Wallace describes the mechanism of injury that occurred on 10 May 2022 as being inconsistent with it being the cause of any significant lumbar pathology.[30]
[30] Reply page 49.
On 18 March 2024 Dr Wallace says there is no objective medical evidence that the applicant suffered any work-related injury at her lumbar spine “at the time of her work incident on 10 May 2022”.[31]
[31] Reply page 59.
This opinion focussing on the incident on 10 May 2022, as in Kumar, appears to fail to address the correct question of whether the lumbar spine symptoms resulted from the accepted left ankle injury.
For this reason I accord less weight to the opinion of Dr Wallace.
The respondent submits the surveillance of the applicant over 11 days shows her to be walking in a normal manner with no sign of restriction, walking upright, unaided and without the use of a moon boot.
Only still photographs are in evidence, three of which appear to show the applicant walking upright, without the use of a moon boot and reportedly without restrictions.
It is difficult to determine from the still photographs whether the applicant is walking without restrictions. In any event I accept the applicant’s submission that such a determination may not appropriately be made by an investigator.
The applicant walking without using the moon boot during this period is consistent with the other evidence.
Mr Ilett records in September 2022 the applicant is to have increased time out of the boot to include outside the home, she was then only using it when going out to the shops, and later in the month she was only using it for school pickup and shopping. By October 2022 she had not worn the boot at all one week.
Mr Ilett reports on 14 November 2022 the applicant’s compliance in the boot is poor due to discomfort and he recommended gradually weaning her out of the boot.
Dr Fernando reports on 20 December 2022 he had told the applicant to stop wearing the boot and he advised her to remove it.
I do not place weight on the conclusions made in the SureFact report for the above reasons.
The respondent makes the submission that the applicant did not use the cam boot at all times, as reported by Dr Fernando in December 2022 and Dr Gothelf in March 2023, and this is inconsistent with the applicant’s statement evidence that wearing the cam boot for too long caused injury to her lumbar spine and hips due to the altered gait.
I do not agree there is an inconsistency.
The evidence is that the applicant used two different cam boots between May 2022 and February 2023, Dr Fernando and Mr Ilett were concerned to wean her out of the boot during 2022, and by October 2022 she reported the onset of symptoms of pain in her lumbar spine.
Dr Gothelf, a foot, ankle and shoulder surgeon, reviewed the applicant in March 2023 regarding her left leg and ankle injury and her symptoms consistent with a complex regional pain syndrome.
The respondent submits Dr Gothelf did not record symptoms of back pain at that time and
Dr Ramachandran is the first treating specialist to refer to lower back symptoms in April 2023. Dr Wallace records that the applicant noted the onset of lumbar pain from October 2022. As discussed above, there is no dispute the applicant suffers symptoms of lumbar spine pain.
There is no evidence of other causes contributing to the applicant’s lumbar spine symptoms.
On the basis of the whole of the evidence I accept the left ankle injury on 10 May 2022 caused a chain of events including wearing a cam boot that resulted in the applicant’s consequential lumbar spine condition.
The applicant has discharged the onus of proving her consequential lumbar spine injury has been caused by the accepted left ankle injury based on the facts of the case, the evidence and a “commonsense evaluation of the causal chain” which is not always direct and immediate.[32]
[32] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
As there is a finding that the applicant has sustained a consequential lumbar spine condition no determination is required to be made as to whether the left ankle injury alone would be capable of referral to a Medical Assessor and I make no finding in this regard.

SUMMARY

The applicant has sustained a consequential lumbar spine condition as a result of the accepted left ankle injury on 10 May 2022.

The left ankle injury and the consequential lumbar spine injury are to be remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established