Neyland v GJ & MJ Elliott & Son Pty Ltd (incorrectly pleaded in ARD as "GJ & MJ Elliott & Sons Pty Ltd")

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Neyland v GJ & MJ Elliott & Son Pty Ltd (incorrectly pleaded in ARD as "GJ & MJ Elliott & Sons Pty Ltd") [2023] NSWPIC 300
APPLICANT:	John Kenneth Neyland
RESPONDENT:	GJ and MJ Elliott and Sons Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	26 June 20203
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits, medical expenses and permanent impairment compensation; applicant had accepted injuries to left lower extremity, scarring and nervous system as a result of a fall in the course of his employment; the applicant also claimed a consequential condition to his right lower extremity (ankle) as a result of the accepted injury; liability was denied and it was noted the applicant had a prior serious injury to his right ankle and had already been told that joint would require arthrodesis before the injury at issue; Held – the presence of right ankle pathology before the injury at issue does not obviate the development of a consequential condition as a result of the later injury; it is not necessary for the applicant to demonstrate changes to his right ankle sufficient to establish a section 4 injury in order to show a consequential condition; on balance, the evidence establishes the applicant’s gait altered after the injury at issue, for which he had no fewer than seven rounds of surgery; as a result of that altered gait, the applicant developed a consequential condition in his right ankle; the right ankle is to be referred for medical assessment, along with the other accepted body systems; the claims for medical expenses and weekly benefits are deferred until after the issuing of the Medical Assessment Certificate.
determinations made:

The Commission determines:

The applicant suffered an injury in the course of his employment with the respondent on 15 March 2013 to his left lower extremity (knee, ankle and heel, foot and toes); scarring and central and peripheral nervous systems (clinical dementia rating).
As a result of the injury referred to in [1] above, the applicant suffered a consequential condition to his right lower extremity (ankle).
The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:
Date of injury: 15 March 2013.
Body systems referred: left to lower extremity (knee, ankle and heel, foot, toes); scarring; central and peripheral nervous system (clinical dementia rating – table 13 – 5); right lower extremity (ankle) (consequential).
Method of assessment: whole person impairment.
The claims for weekly compensation and for the payment of medical and treatment expenses are adjourned to a date to be fixed before me after the issuing of the Medical Assessment Certificate.
The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a)    this Certificate of Determination and Statement of Reasons;
(b)    Application to Resolve a Dispute;
(c)    Reply;
(d)    applicant's Application to Admit Late Documents dated 17 May 2023;
(e)    applicant's Application to Admit Late Documents dated 1 June 2023, and
(f)    respondent's Application to Admit Late Documents dated 25 May 2023.
The reports of Dr Bradshaw which are annexed to the respondent’s Application to Admit Late Documents filed on 25 May 2023 are admitted only as to the history contained within them and are otherwise not to be taken into consideration by the Medical Assessor.
Any medical examination is, if possible, to be undertaken in Wagga Wagga.

STATEMENT OF REASONS

BACKGROUND

On 15 March 2013, John Kenneth Neyland (the applicant) suffered an injury in the course of his employment with the respondent, GJ and MJ Elliott and Sons Pty Ltd when he suffered a fall of over 3m while attempting to fix a latch on the back of the trailer of a truck which he was loading.
There is no issue that in the fall in question, the applicant suffered injuries to his left lower extremity together with scarring consequent upon surgery. Additionally, the applicant suffered an unaccepted injury to his nervous system as a result of the incident.
The applicant brings a claim seeking weekly benefits, payment of medical and treatment expenses and permanent impairment compensation in respect of the above injuries, together with an alleged consequential condition to his right ankle said to have been suffered as a result of an altered gait pattern adopted by him after the injury in question. The alleged consequential condition is disputed by the respondent.
The applicant's history is somewhat complicated by the undisputed fact, referred to by him in his statement evidence that on 11 December 2004, he was in attendance at a fire in his role as a member of the Volunteer Bush Fire Brigade. On that occasion, as the applicant was stepping up onto a bank with a chainsaw with the intention of cutting down a tree which was on fire, the applicant suffered a serious injury to his right foot. As a result of that injury, the applicant had no fewer than four operations on his right ankle and, from approximately 2012 onwards had eventually intended to have his right ankle fused. That operation was eventually carried out under the care of Dr Bradshaw in May 2017.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the applicant suffered a consequential condition to his right ankle as a result of his accepted left ankle injury causing an altered gait pattern.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a hearing on 30 May 2023. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 30 May 2023. The applicant was represented by Mr Hickey of counsel and instructed by Mr Commons. The respondent was represented by Ms Goodman of counsel instructed by Ms Blake.
At the hearing, the parties agreed in accordance with the decision of Deputy President Roche in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, that the claims for the payment of treatment expenses together with weekly benefits will be deferred until after the issuing of a Medical Assessment Certificate.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    this Certificate of Determination and Statement of Reasons;
(b)    Application to Resolve a Dispute (the Application);
(c)    Reply;
(d)    applicant's Application to Admit Late Documents (AALD) dated 17 May 2023;
(e)    applicant's AALD dated 1 June 2023;
(f)    respondent's AALD dated 25 May 2023;
(g)    applicant’s wages schedule, and
(h)    respondent's wages schedule.
The applicant's AALD dated 10 February 2022 contained an updated wages schedule upon which he relied. That wages schedule was relied on instead of the applicant's originally filed wages schedule.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition as a result of his accepted injury

The applicant has the onus of proving he suffered a consequential condition to his right ankle as a result of the left ankle injury. In this matter, he alleges such consequential condition was brought about by an altered gait which he adopted after the accepted injury and the consequential surgery from it.
The question of whether there is a consequential condition is one of causation. In determining the cause of any injury or consequential condition, the Commission must apply a commonsense test of causation, as was set out by Kirby P (as he then was) Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). As his Honour made clear in Kooragang, what is required is a commonsense evaluation of the causal chain having regard to the totality of the evidence, both lay and expert.
The authorities also make it clear that where a consequential condition is alleged, it is unnecessary for a worker to meet the requirements of an “injury” as that term is defined in s 4 Workers Compensation Act 1987 (the 1987 Act): see for example Moon v Conmah Pty Ltd [2009] NSW WCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 and Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8.
As noted, there is no question the applicant suffered a serious prior injury to his right ankle. The details of that injury are set out in his statement at page 6 of the Application. I do not propose for the purposes of these reasons to repeat those details, however, it is common ground that the applicant underwent three operations between May 2008 and February 2012. The applicant notes:
“By the end of 2012, Dr Hatfield [the applicant's treating surgeon] was advising me that I probably need my right foot fused but was of the view I should continue to hold out as long as possible…
26. In May 2017, I underwent a fusion of my right ankle under the care of Dr Bradshaw.”
Between ceasing work with the Forestry Commission on 27 March 2012, and commencing employment with the respondent, the applicant consistently worked as a driver with other companies. There appears to be no issue that he was able to return to work between his two injuries.
Following the injury at issue, the applicant was taken by ambulance to Wagga Wagga Base Hospital, relevantly suffering from a broken left leg below the knee and a compound fracture of his left tibia together with a further fracture of the left leg below the knee and a compound fracture of the left ankle. On 16 March 2013, the applicant underwent surgery to his left leg by way of insertion of an intramedullary tibial nail and open reduction and internal fixation of a compound left calcaneal fracture with two screws. After that surgery, the applicant has undergone the following procedures to his left leg:
17 April 2013      Revision surgery on fractured left calcaneus, open reduction and internal fixation of left calcaneus.
27 June 2013     Split skin graft from lateral thigh applied to left lateral aspect of left ankle to repair post-surgical skin defect at lateral left ankle under general anaesthetic.
17 Feb 2014 Left subtalar fusion surgery performed by Dr Hatfield together with grafting and flap at left ankle wound.
17 September 2014        Arthroscopic surgery to left and right knees (respondent      accepted liability for this surgery as a result of the accident at issue).
8 February 2016             Left hind foot removal of screws and osteotomy with fixation, bone grafting and calcaneal cuboid talonavicular fusions.
25   October 2017            Left four-foot correction with PIP joint fusion of toes 2-5.
13 May 2020                  Amputation of third toe of left foot.
Additionally, on 31 May 2017, the applicant had an arthroscopy and fusion of his right ankle.
For the applicant, Mr Hickey submitted the question for determination is whether a shifting of weight and altered gait after the left foot injury onto the right foot was the cause of a consequential condition. He noted the applicant had suffered significant cognitive impairment since the injury at issue, which is accepted by the respondent to have been brought about by the effects of repeated doses of total anaesthetic.
Mr Hickey noted, and I accept that the medical contest in this matter is between the applicant's independent medical examiner (IME) Dr Miller and the respondent's IME, Dr Le Leu.
Dr Le Leu has provided a number of reports, all of which were placed into evidence. His first report dated 16 March 2017 set out the extensive medical history suffered by the applicant both since the injury at issue and the prior right ankle injury suffered with another employer. After reviewing the relevant material, Dr Le Leu noted among the applicant's present symptoms were the following:
“●      He aches in the left foot and ankle. He says he can put up with the aching but cannot put up with the pain;
·        The left foot swells every day up to just beyond the ankle and some days even higher;
·        He has difficulty walking on that side and cannot stand in the morning when he gets up out of bed;
·        He confirmed that his present walking problems result from the left ankle.”
Dr Le Leu noted the following history of the right ankle injury:
“He had previously injured the right ankle when walking up a bank while attending a fire. He had four operations performed on that ankle without significant improvement. At the time of the subject left leg accident, the right ankle was still troublesome, but he was still getting around on it and was able to work.”

That history recorded by Dr Le Leu is clearly correct. When Dr Le Leu was asked whether the applicant's ongoing problems related to any underlying pre-existing condition or injury, he replied “his injury and ongoing symptoms relate to the subject accident occurring with the employer with a minor component from previous left ankle degeneration. Also, there is a secondary effect on his pre-existing right ankle degeneration”. (Emphasis added).
In his second report dated 26 July 2018, Dr Le Leu again set out in detail the applicant's history. Dr Le Leu added “he confirmed that he was going to have the right ankle fused before the subject accident, but he kept putting it off since he could not have it done and still continued in the fire service.”
On examination, Dr Le Leu noted:
“I note it is the right ankle that is supposed to have been fused but there is still inversion and aversion possible there. The movements of the left ankle are worse than that of the fused right ankle.”
When once again asked whether the applicant's injury and ongoing symptoms related to any underlying or pre-existing condition or injury, Dr Le Leu repeated his comment from his previous report, namely:
“His injury and ongoing symptoms relate to the subject accident occurring with the employer with a minor component from previous left ankle degeneration. Also, there is a secondary effect on his pre-existing right ankle degeneration.”
Dr Le Leu was then asked to provide an opinion as to whether the applicant had any permanent impairment relative to the alleged injury, and in relation to the right lower extremity said, “the right ankle and knee problems relate to previous injuries so will not be considered.”
For the applicant, Mr Hickey submitted Dr Le Leu had fallen into error with his reasoning process, in that he had plainly considered the accepted injury to the left ankle had contributed to the applicant's right ankle problems, however, he then simply dismissed the accepted injury as being causative of any impairment merely because of the existence of the prior injury. Dr Le Leu provides no explanation for the apparent internal non sequitur contained within his report of 26 July 2018. In my view, that is an important omission on his part.
Dr Le Leu has, after examining the applicant twice, made the observation that his left ankle injury has contributed to problems with his right. In my view, adopting the reasoning in the authorities such as Kumar, that is sufficient to constitute a consequential condition. In attributing the right ankle problems to “previous injuries”, Dr Le Leu has focused on the underlying pathology rather than the worsening symptomology which the applicant has experienced since the left ankle injury.
Ms Goodman submitted the Commission must be persuaded of the existence of a fact in issue, namely the alleged altered gait and could not draw an inference as to its existence. On balance, I am persuaded of the existence of that altered gait, noting the respondent's own IME referred to the manner in which the applicant was walking and his “present walking problems” as resulting from the left ankle. That is a history which was taken by Dr Le Leu from the applicant in the course of his examination in 2017.
Of note is Dr Le Leu's recording in that report of the applicant stating his most worrying problem was progressive memory loss “of uncertain origin”. It is now accepted the memory loss has been caused by the injury at issue and the operative procedures which have followed it. Mr Hickey submitted, and I accept, that this memory loss provides an adequate explanation for the absence of a direct statement evidence by the applicant as to his altered gait.
The applicant’s IME, Dr Miller provided two reports, dated 25 November 2014 and 16 September 2018 respectively. In his first report, Dr Miller was providing an opinion in relation to the 2004 injury with the Forestry Commission. At that time, Dr Miller recorded the complaints which the applicant had in his right ankle as follows:
“He claims he has intermittent pain in the anterior aspect of the right ankle. He claims the ankle swells if it is in a dependent position. He claims his right ankle is aggravated by standing for periods of an hour or walking distances of two kilometres.
He particularly has problems if he walks over rough, uneven and soft surfaces.
He claims his right ankle is worse if he squats.
He is contemplating having a right ankle arthrodesis as recommended by Dr Fielding.
He has problems with his left leg, ankle and calcaneus but these are as a result of his injury on 15 March 2013 [the subject injury].”
Dr Miller noted on examination the applicant was favouring his left leg. Ms Goodman submitted it was unclear whether that meant the applicant was placing more weight on his right foot than previously or less.
In his second report dated 16 September 2018, Dr Miller assessed part of the applicant's right ankle impairment as it being attributable to the injury in issue, and half to the injury with the Forestry Commission. Taking into account the history of both injuries, Dr Miller provided the following commentary:
“As a result of [The Forestry Commission injury in 2004] he saw his local medical officer, Dr Johar, who referred him to Kerin Fielding, and he was subsequently referred to Dr Angela Hatfield.
He had three operations on his right ankle.
As a result of his right ankle problem, he developed a compensating gait and has felt pain in the right hip.
He had the following operations on his right ankle:
May 2006 Dr Kerin Fielding performed right ankle arthroscopy and arthrotomy.
22 April 2009 Dr Angela Hatfield performed a right ankle arthroscopy and debridement and excision of spur.
February 2012 Dr Hatfield performed a further right ankle arthroscopy and debridement.
On 15 March 2013 he injured his left leg as detailed below.
The injury to his left leg caused him to compensate by taking more weight on his right lower extremity.
He stated that this aggravated the problem in his right ankle. The problem increased over the years, and he eventually underwent an arthrodesis of his right ankle in May 2017. This was performed by Dr Bradshaw.”
When specifically asked whether there was any contribution to the right ankle condition as a result of the injury at issue, Dr Miller said:
“I believe that the problem that Mr Neyland encountered with his left leg caused him to place increased compensatory stress on his right ankle.
This aggravated previously symptomatic degenerative change that occurred as a result of an accident whilst fighting a fire at Burrinjuck Dam on 11 December [2004].
This increased force on his right ankle and more likely they are not led to a progression of secondary degenerative change resulting in his right ankle fusion.”
On 26 April 2020, Dr Miller provided a third report. He again set out the detailed history of injury. In doing so, he recorded the applicant “confirmed as a result of the injuries to his left leg that he developed right ankle and right knee pain”. Dr Miller maintained his view that the left ankle injury in at issue had led to compensatory overuse of the right ankle which in turn aggravated the same pathological area as that injured in 2004 while working with the Forestry Commission.

I prefer the evidence of Dr Miller to that of Dr Le Leu. Dr Miller has the benefit of examining the applicant over many years, as far back as 2014. The histories taken by Dr Miller are consistent and demonstrate in my view a worsening of right ankle problems after the left ankle injury. Mr Hickey submitted, and I accept, that applying a commonsense test of the causal chain, against the background of a left ankle injury requiring seven bouts of surgery, many of them serious, there was clearly an alteration in the applicant's gait from the time
Dr Miller first saw him in November 2014 to the time of his last report in 2020.
Whilst I accept Ms Goodman's submission that by the end of 2012, the applicant had already been advised he would require a fusion of his right ankle, that does not obviate the effect of the left ankle injury on that body system. Although the right ankle may have been coming to arthrodesis at some point in any event, it is the symptomology which one needs to examine when determining whether a consequential condition exists. The histories provided to the doctors confirm in my view that over time the applicant's gait altered, and he began to experience increasing problems with his right ankle as a result of that altered gait suffered after the left ankle injury.
Ms Goodman also submitted it was unclear from Dr Miller's report recording a “favouring” of the left leg whether that meant the applicant was placing more or less weight on his left leg. Whilst that may be the case, the later report clarifies the fact that in fact the applicant was placing increasing weight on his right foot after the accident at issue. However, in any event, whether the applicant placed more or less weight on his left foot following the 2013 injury, either of those circumstances constitutes an altered gait caused by the left ankle injury.
On balance, I am satisfied having examined all of the medical and lay evidence, that the applicant suffered an altered gait after the injury in 2013 to his left ankle, and that this has caused a consequential condition to his right ankle. Accordingly, the right ankle will also be the subject of referral to a Medical Assessor. The fact the applicant would have come to a right ankle fusion regardless of the later injury is, as stated, is not determinative of whether the effect of the left ankle injury in 2013 was to cause a consequential condition to the right ankle.

SUMMARY

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

[2023] NSWPIC 300

26 June 2023