Omar v Toll Personnel Pty Limited
[2022] NSWPIC 574
•17 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Omar v Toll Personnel Pty Limited [2022] NSWPIC 574 |
| APPLICANT: | Khadar Omar |
| RESPONDENT: | Toll Personnel Pty Ltd |
| Member: | Jane Peacock |
| DATE OF DECISION: | 17 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Undisputed lumbar spine injury; disputed left hip injury which is alleged to be injured at the same as the back and/or as a result of a consequence of the lumbar spine injury; when all of the evidence weighed in the balance, satisfied on the balance of probabilities that the applicant suffered a consequential condition in his left hip as a result of his lumbar spine injury on 17 March 2021; when all of the evidence weighed in the balance not able to be satisfied that the applicant suffered an injury to his left hip on 17 March 2021; such injury consisting in the aggravation of an underlying disease in the left hip to which employment was the main contributing factor to the aggravation; Held – award for the respondent on the allegation of injury to the left hip; award for the applicant on the allegation of a consequential condition in the left hip. |
| determinations made: | 1. Award for the respondent in respect of the allegation of injury to the left hip deemed to have occurred on 17 March 2021. 2. Award in favour of the applicant in respect of the allegation of a consequential condition in the left hip as a result of injury to the lumbar spine deemed to have occurred on 17 March 2021. 3. The matter is remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine and left lower extremity (left hip) as a result of injury deemed to have occurred on 17 March 2021. 4. The documents to be forwarded to the MA are those admitted by consent as follows: (a) Application to Resolve a Dispute and attached documents; (b) Application to Admit Late Documents filed by the applicant 23 June 2022 and 25 July 2022, and (c) Reply and all documents attached. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application), as amended, the applicant, Mr Khadar Omar (Mr Omar) seeks lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to his lumbar spine on 17 March 2021. He also seeks lump sum compensation as a result of injury to his left hip alleged to occur on 17 March 2021 or as a result of a consequential condition in his left hip as a result of injury to his lumbar spine on 17 March 2021 or as result of a combination of both injury and consequential condition.
The respondent is Toll Personnel Pty Ltd (Toll). Toll was self-insured at the relevant time for the purposes of workers compensation by (the insurer).
Toll denied liability for the claim resulting from the alleged injury to and/or consequential condition in the left hip.
ISSUES FOR DETERMINATION
It is not disputed that Mr Omar suffered injury to his lumbar spine on 17 March 2021 which is pleaded as a deemed date of injury resulting from the nature and conditions of employment on that day being the repetitive lifting of heavy boxes and bending and twisting.
It is disputed that Mr Omar also suffered an injury to his left hip on 17 March 2021 such injury alleged to consist in the aggravation of an underlying disease in the left hip to which his employment was the main contributing factor to the aggravation. It is disputed that Mr Omar suffered a consequential condition in his left hip as a result of his undisputed lumbar spine injury. It is disputed that Mr Omar suffered a combination of an injury to the left hip and a consequential condition in the left hip.
The dispute before me therefore is whether Mr Omar suffered an injury to the left hip on 17 March 2021 and/or a consequential condition in his left hip as a result of the lumbar spine on 17 March 2021.
Toll seeks an award for the respondent in respect of the allegation of injury to the left hip and in respect of the allegation of a consequential condition in the left hip.
In the event there is an award for the respondent in respect of the left hip, it is agreed that the matter will be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine as a result of injury deemed to have occurred on 17 March 2021.
In the event there is a finding in favour of Mr Omar in respect of the left hip, it is agreed that the remittal for referral to a MA will include the left lower extremity (left hip).
The documents to be forwarded to the MA are agreed to be the documents admitted into evidence in these proceedings.
PROCEDURE BEFORE THE COMMISSION
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission by consent and considered in making this determination:
For Mr Omar
(a) the Application and attached documents, and
(b) documents filed with Applications to Admit Late Documents dated 23 June 2022 and 25 July 2022.
For Toll
(a) Reply and all documents attached.
Oral evidence
Mr Omar did not seek leave to adduce oral evidence and counsel for Toll did not seek to cross-examine Mr Omar.
Video surveillance
Toll filed surveillance material. It was agreed by the parties that the surveillance would not be viewed during the hearing unless counsel for Toll made submissions that counsel for Mr Omar considered rendered it necessary that the surveillance be viewed during the hearing. Ultimately counsel for Mr Omar made no such application.
FINDINGS AND REASONS
It is not disputed that Mr Omar suffered an injury at work to his lumbar spine on 17 March 2021 which is pleaded as a deemed date of injury.
Mr Omar alleges that he has also suffered an injury to his left hip on that day such injury alleged to consist in the aggravation of an underlying disease in the left hip, to which his employment was the main contributing factor to the aggravation. Toll disputes this injury.
Mr Omar also alleges that he has suffered a consequential condition in his left hip as a result of injury to his lumbar spine as a result of an alteration in his gait caused by his lumbar spine injury. Toll disputes that the left hip condition is consequential upon Mr Omar’s undisputed lumbar spine injury.
The law dealing with injuries consisting in the aggravation of underling diseases is clear that the employment does not have to the main contributing factor to the underlying disease but rather the main contributing factor to the aggravation of the underlying disease.
The law dealing with consequential conditions is clear. It is not necessary for Mr Omar to establish that the consequential condition in his left hip is an “injury” (including “injury” based on the disease provisions) within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). This means that s 9A also does not apply here. That is, Mr Omar does not have to establish that his employment was a substantial contributing factor to the consequential condition alleged in his left hip. The disease provisions do not apply such that Mr Omar does not have to establish that his employment was the main contributing factor to the aggravation of any pre-existing disease in his left hip. It is well settled that, as it is a consequential condition in his left hip that is being alleged, all Mr Omar has to establish is that the symptoms and restrictions in his left hip have resulted from lumbar spine injury.
Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) provided a useful summary of the case law dealing with consequential conditions as follows:
“100. There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). 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.
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
‘44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an injury” to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an “injury” to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. 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 (see 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).’
102. In Kumar, one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a ‘work related injury’ to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. Roche DP at [57] said of the evidence of that medical witness:
‘Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for “consequential loss” in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.’”
Deputy President Snell went onto apply the above to the case before him:
“103. Did Dr Wilcox’s report suffer from such a fundamental flaw? If so, the Senior Arbitrator was justified in rejecting the report (consistent with the approach in Kumar).
104. The respondent submitted that the opinion of Dr Wilcox going to the consequential conditions was ‘tainted’ by his views on the presence and causation of muscle tension dysphonia.
105. The proceedings were conducted on the basis that the respondent suffered from the condition of muscle tension dysphonia, this being a compensable injury deemed to have occurred on 4 April 2011. What was in issue was whether there were consequential conditions involving the neck and shoulders, which resulted from the conceded injury of muscle tension dysphonia.
106. For reasons discussed above, I have (at [81]) formed the view that, on a fair reading of his report, Dr Wilcox did not accept the appropriateness of the diagnosis of muscle tension dysphonia or the fact that it resulted from employment. There are passages where the doctor pursues an argument to this effect.
107. There are passages of the report (see that quoted at [97] above for example) where Dr Wilcox excluded muscle tension dysphonia from his expressed views on causation. However, consistent with the discussion above going to the First Argument put in support of Ground 1, there are other passages where the doctor argues to the contrary.
108. The passages of Dr Wilcox’s opinion quoted at [97] and [98] above are consistent with his report involving the same flaw as that which affected the opinion of the medicolegal expert in Kumar. The issue before the Senior Arbitrator was not whether the respondent suffered injury to the neck and shoulders caused by overusing her voice in February/March 2011, under the ‘disease’ provisions or otherwise. It was not necessary, for the respondent to succeed on the consequential conditions, that she establish ‘injury’ to these parts within the meaning of s 4 of the 1987 Act.
109. The weight to be afforded to the opinion of Dr Wilcox was dependant, amongst other things, on its relevance to the issue between the parties. That issue was whether, accepting the conceded compensable injury of muscle tension dysphonia, the alleged consequential conditions resulted from that injury.
110. The views of Dr Wilcox were ‘fundamentally flawed’, to appropriate the language in Kumar. It follows that the Senior Arbitrator was correct to reject the opinion of Dr Wilcox.”
That is, it is well settled that it is not necessary for Mr Omar to succeed in respect of the consequential condition in the left hip that he alleges here, to establish “injury” to his left hip within the meaning of s 4 of the 1987 Act but that the symptoms and restrictions in his left hip have resulted from his lumbar spine injury.
Accordingly, the questions for determination are as follows:
(a) whether Mr Omar suffered an injury to his left hip on 17 March 2021 such injury consisting in the aggravation of an underlying disease in the left hip to which his employment was the main contributing factor to the aggravation of the underlying disease, and/or
(b) whether Mr Omar suffered a consequential condition in his left hip as a result of the injury to his lumbar spine on 17 March 2021.
These questions must be determined on the balance of probabilities on the evidence and in accordance with the law.
Turning then to an examination of the evidence in this case.
Mr Omar gave evidence in statements dated 1 June 2022.
In his statement dated 1 June 2022 Mr Omar describes the circumstances of injury to his lumbar spine on 17 March 2021 when he was lifting heavy boxes some weighing up to 40 kilograms at a pressured and fast pace and involved bending and twisting. The injury to the lumbar spine is not disputed.
Mr Omar gives evidence as follows:
“17. On 17 March 2021, I had been tasked with moving boxes from a pallet and placing them onto a trolley. The boxes had been stacked on a pallet and in order to move them, I was required to lift the boxes from the pallet and twist to place them onto the trolley behind me.
18. Furthermore, in order to lift the lowest box, I would be required to reach down to almost ground level. I would also be required to stretch above shoulder height to lift the topmost box.
19. Th boxes were heavy as they contained clothes and shoes in them. To my recollection, the boxes weighed approximately 35 to 40 kgs each.
20. The task was very fast and as a result, I felt pressured when undertaking the task.
21. Whilst I was undertaking the above, I experienced a sudden onset of pain in my lower back. The pain had also radiated down into my left hip. At the time I was unable to distinguish whether I had hurt my left hip specifically or whether it was pain radiating from my lumbar spine, as the primary pain was located in my lower back.
22. Following the subject accident, I reported my pain and injuries to my team leader.
23. I was able to finish the da however during this time my pain did not go away.
24. I returned to work the following day however struggled due to ongoing pian.
25. As I continued to struggle, I consulted my GP and was certified unfit to work.”
Mr Omar goes on to give evidence about his left hip as follows:
“26. Following the subject accident, I suffered from ongoing and significant pain and symptoms in my lower back.
27. Due to my doctors simply treating the lower back injury, I was focusing on my lower back although I also had pain in my left hip. Again I did not know if this was a distinct injury to the left hip at the time.
28. I began to notice that the way I would manoeuvre and move about had altered. More specifically I noticed that it would be difficult and awkward for me to perform domestic duties and activities of daily living.
29. For example the restricted range of movement in my lower back and the pain symptoms in my lower extremities would make it difficult when performing cooking, cleaning and undertaking maintenance duties.
30. More specifically, it was difficult for me to move, stand, walk and bend. I walked with an awkward gait and my movements on my left side had also changed and become awkward.
31. Following this, I began to notice a gradual increase of symptoms , strain and pain in my left hip, to the point that they were causing me issues and as such I reported the left hip problem to my GP.”
I note that it is common ground that the first reference in the clinical notes that are in evidence to pain in the left hip is contained in the clinical history recorded on report of the CT scan dated 1 November 2021 which refers to chronic left hip pain.
Mr Omar goes onto give evidence about his medical treatment following injury as follows:
“35. On 1 April 2021, I was referred to my employer’s doctor.
36. The doctor referred me to a physiotherapist who I consulted with on one occasion.
37. Following this, I consulted my GP Dr Youseff Ghonemi on 6 April 2021.
38. Dr Ghonemi referred me to a physiotherapist.
39. On 13 April 2021 Dr Ghonemi referred me to undergo an MRI scan of my lumbar spine.
40. I underwent an MRI scan of my lumbar spine on 13 April 2021 which to my understanding revealed L4/5 disc protrusion associated with an annular tear. Furthermore, to my understanding, the scan revealed left sided L5 nerve root origin with the subarticular recess and the nerve root origins are mildly hyperintense and thickened suggesting neuropathy.
41. I was then referred to consult with an orthopaedic surgeon.
42. On 5 July 2021 I consulted with Dr Balsam Darwish, orthopaedic surgeon, who noted that there had been altered sensation over the lateral aspect of my left leg. Dr Darwish recommended that I continue physiotherapy despite there being minimal improvement.
43. On 29 July 2021 I consulted with Dr Darwish again who recommended me to receive a steroid injection. Dr Darwish advised me that if the injection did not assist in alleviating my pain , then my next option would be surgery in the form of left L4/5 microdiscectomy and decompression of the left l4 and L5 nerve roots.
44. On 2 August 2021 I received a steroid injection,
45. On 30 August 2021 I consulted with Dr Darwish again and infirmed him that my pain continued.
46. Dr Darwish recommended that I continue with physiotherapy and medication.
47. On 1 November 2021, I underwent a CT Scan of my left hip which to my understanding reveals subtle cam type deformity and mild acetabular over coverage.
48. On 7 March 2022 I consulted with Dr Chandra Dave at Bone Specialist. I complained of my left hip pain and symptoms. Dr Chandra Dave recommend ne to physiotherapy, pain management and injections.
’49. I have undertaken a home based exercise program, prescribed to me by my physiotherapist . I continue to undertake these exercises.
50. I have taken the following medication:
a. tramal;
b celebrex
c lyrica
d Panadol.
…
52. Currently I continue to take medication for temporary relief of my pain and symptoms.
53. I have been recommended an injection to my left hip which I am yet to undergo.
54. I also continue to undergo physiotherapy which I attend once per week.”
There is surveillance material admitted into evidence for Toll.
This surveillance material undertaken on 19 May 2022 shows Mr Omar to be walking with a limp. Counsel for Toll conceded that the surveillance material showed Mr Omar to be walking with a limp. There were otherwise no submissions made about the contents of the surveillance material itself by counsel for Toll.
Dr Dryson, occupational physician, the independent medical expert (IME) was provided by Mr Omar’s solicitor with the surveillance material and he opined as follows in a report dated 21 July 2022:
“The surveillance tape supplied to me dated 19 May 2022 covers the period from 15.08 hours 15.14 hours. The subject was observed to stand next to a car, leave a building and get into his car, shutting the door. There was clear evidence of a limp, while he was existing a building and turning left, but no evidence of a limp while walking in a straight line his would, in my opinion, be consistent with a left radiculopathy.”
There was no medical opinion in evidence on behalf of Toll which addressed the surveillance material.
Counsel for Toll properly conceded that the surveillance shows Mr Omar walks with a limp. He submitted that the opinion of Dr Dryson is inadequate, for the purposes of the left hip dispute, when dealing with the surveillance material because he does not opine that the alteration of Mr Omar’s gait as viewed on the surveillance material is the kind of alteration that would cause hip pain.
What the surveillance material shows is that Mr Omar, when observed without his knowledge, walked with a limp. The only medical evidence before me about the surveillance material is that of Dr Dryson in a report dated 22 July 2022 who considers that the limp is consistent with left sided radiculopathy. Consistent with all of the medical evidence before me, the left sided radiculopathy results from the lumbar spine injury.
Dr Dryson says that the surveillance material does not change his opinion expressed in his earlier report. I note that in the earlier report of 29 November 2021 Dr Dryson opined that the left hip pain is consequent on the lumbar spine injury by reason of an alteration in Mr Omar’s gait.
Apart from the concession that Mr Omar was shown to be walking with a limp in the surveillance material, counsel for Toll went through the treating evidence in an endeavour to demonstrate that Mr Omar is not recorded as having an altered gait. Counsel for Mr Omar said that counsel for Toll’s approach was a thinly veiled attack on credit without cross-examination. This was submitted in reply. Counsel for Toll was given the opportunity to respond to these submissions in reply.
Dr Darwish was the treating orthopaedic surgeon to whom Mr Omar was referred by his general practitioner (GP). He first saw Mr Omar on 5 July 2021 and provided a report to the GP of the same date. Dr Darwish notes the history of lower back pain and left sided sciatica since injury. Counsel for Toll pointed out that Dr Darwish records that Mr Omar’s gait was normal on the day of examination. Dr Darwish records positive findings on examination of the lumbar spine and the left side including positive nerve stretch and altered sensation. He notes the positive radiological findings in the lumbar spine. He recommended conservative management.
The first note of hip pain is that recorded by Dr Dryson, IME, in August 2021. The first clinical note specifically referencing the hip is contained in the CT scan performed on 1 November 2021. Mr Omar was referred for this scan by his treating GP and hence the report of hip pain must have preceded this scan. Indeed the clinical history is noted as “left hip chronic pain. Restricted range of motion”. The reference to pain being “chronic”, that is longstanding, is noted.
The CT scan identifies the following pathology:
“Subtle cam type deformity and mild acetabular over coverage, potentially predisposing to mixed type femoral acetabular impingement”
It is not Mr Omar’s case that the injury or consequential condition caused the pathology rather the aggravation of that pathology leading to symptoms of pain and restriction.
There is no evidence before me that Mr Omar had problems with his left hip or was treated for problems with his left hip or undertook any radiological investigation of his left hip prior to the subject injury.
Counsel for Toll made much of the clinical records of the GP in terms of the absence of the recording of left hip problems or an alteration in the gait.
It is clear from the GP notes that Mr Omar was presenting on repeated and regular occasions since injury complaining of back and leg pain and restriction of movement.
It is not open to a worker to diagnose their own medical condition.
A clinical history is recorded of chronic left hip pain and once Mr Omar is referred for CT investigation the presence of underlying pathology in the left hip is revealed.
Counsel for Toll submitted that if Mr Omar had presented with altered gait to his GP, then the recommendation repeatedly noted in the GP’s notes that he remain active would not have been given. This amounts to pure speculation and I cannot draw the conclusion from the notes of the GP that he told Mr Omar to stay active that Mr Omar did not have an altered gait.
When Mr Omar first saw Dr Dryson (by way of audio visual link) in August 2021 as the IME qualified on his behalf, Dr Dryson suspected that there might be a problem at the sacroiliac level because Mr Omar pointed to his sacroiliac joints as a source of pain. Subsequent radiological investigation did not support Dr Dryson’s clinical suspicions in this regard.
Dr Dryson said he could not diagnose the left hip without radiological investigation.
When that was subsequently undertaken, being the CT scan of 1 November 2021 referred to above, the underlying pathology in the hip was revealed.
On the basis of Mr Omar’s s complaint of pain and his clinical presentation on examination and the radiological investigation. Dr Dryson diagnosed, in his further report dated 29 November 2021, a consequential condition in the left hip.
He opined, in response to a specific question from Mr Omar’s lawyers, that the consequential condition in the left hip resulted from altered biomechanics as a result of the restrictions on movement and pain in his lumbar spine and was a consequential condition of the injury to the back on 17 March 2021 as follows:
“I would agree that the extra strain on the left hip ha aggravated the previously asymptomatic foroacetabular impingement. This can therefore be considered a consequential left hip injury.
I would agree that, but for the subject accident, Mr Omar would not have suffered the consequential left hip injury.”
When Dr Dryson provides a supplementary report on 22 July 2022, without further examination, in which he opines the left hip was injured on 17 March 2021. This is based on his review of his positive examination findings from his consultation with Mr Omar in November 2021 and noting Dr Powell also found positive findings in the left hip on examination as well as the radiological findings of 1 November 2021. Dr Dryson says earlier in the report that the injury was reported on the day. It is not clear whether he is referencing the lumbar spine injury or left hip injury. He doesn’t address the question of the gradual onset of symptoms in the left hip, which is Mr Omar’s own evidence, as opposed to a report of injury on the day. He says the work was heavy and involved repetitive bending and twisting. I accept that the evidence shows the work was of this nature. In this last report Dr Dryson attributes causation of the aggravation of the underlying left hip pathology to the nature of the work on 17 March 2021 and also that his opinion in his earlier report of 29 November 2021 remains unchanged. When all of the evidence is weighed in the balance, I note Mr Omar himself says in his statement that his left hip pain was of gradual onset. He says this at paragraph 70 as follows:
“70. I am also afraid of suffering further consequences given that I developed gradual onset of symptoms in my left hip following the accident.”
Toll relies on the opinion of Dr Powell, orthopaedic specialist and IME qualified on their behalf.
Dr Powell provided a report of 3 December 2021 after an in-person assessment of Mr Omar. It is noted that this assessment was requested by the insurer in respect of the lumbar spine injury only as that was the only reported injury at that time.
Dr Powell notes the reporting of current symptoms as follows:
“Mr Omar remains symptomatic in relation to the lower back. He reports a constant pain in the midline region which can radiate to the left or right side. He had difficulty describing the character of the pain. Pain extends around the left flank with intermittent radiation down the posterolateral aspect of the left leg. He reports numbness of the region of the right first MTP joint. He is aware of some stiffness and restriction in range of motion. There has been alteration in bowel or bladder habits”
Counsel for Mr Omar pointed to Mr Omar’s identification of pain in the left flank which he submitted was consistent with left hip pain.
Dr Powel records a history of injury to the back consistent with the other evidence.
Dr Powell undertook an examination of the lumbosacral spine and there were positive findings on examination.
He had regard to the radiological investigations.
Dr Powell diagnosed that Mr Omar “sustained a musculoligamentous injury to the lumbar spine in association with an L4/5 disc lesion”.
Dr Powell noted the persistence of symptoms consistent with his clinical findings on examination:
“He has been managed conservatively and has responded reasonably well, although he remains symptomatic. His examination today was characterised by diffuse tenderness and generalised restriction in range of motion, though without definitive features of a lumbar radiculopathy.”
Dr Powell sounds the caution that Mr Omar’s prognosis is guarded and he is likely to have continuing problems as follows:
“The overall prognosis is a little guarded. Mr Omar has sustained an L4/5 lumbar disc injury and although he has responded reasonably well to appropriate conservative management programme, his lower back may continue to represent a source of intermittent problems in the future. In the longer term, he is probably not well suited to work that involves repetitive bending, lifting and twisting manoeuvres.”
Dr Powell was asked by the insurer to review Mr Omar after the amendment of the claim to include the left hip. He saw Mr Omar again in person and provided a report dated 21 April 2022.
He recorded the current symptoms as follows:
“Mr Omar reports ongoing symptoms involving the lower back and left hip.
·There has been no significant change in his lumbar spine symptoms. Mr Omar’s indicated the pain is intermittent. It is typically midline and spread bilaterally along the beltline, more marked on the left side . It can be relieved by walking. It is accompanied by some pins and needles involving the dorsum of the left foot on an intermittent basis. He is aware of some stiffness and restriction in range of motion in the lower back.
·In relation to the left hip, Mr Omar reports intermittent discomfort in the buttock that is improved with walking. He is aware of some stiffness and restriction in range of motion and this creates difficulty putting on shoes and socks. There is no history of any prior injuries involving the left hip.”
Dr Powell has available the CT scan of the left hip dated 1 November 2021 and Dr Dyson’s reports dated 19 August 2021 and 29 November 2021.
Under the heading diagnosis, Dr Powell diagnosis in respect of the lumbar spine is as per his previous report and he notes that Mr Omar “remains symptomatic with ongoing pian, stiffness and non-verifiable radicular symptoms”.
He notes that Mr Omar has reported the development of left hip symptoms:
“In addition, Mr Omar has reported the development of left hip symptoms. Investigation revealed evidence of femoroacetabular impingement with some left hip osteoarthritis. These represent a pre-existing disease process unrelated to employment.”
Dr Powell goes onto opine:
“Liability has been accepted in relation to the lumbar spine condition. Mr Omar’s ongoing symptoms and functional limitation continue to relate to the effects of injury sustained in the course of his employment.
In relation to the left hip, this is a pre-existing disease process of which employment does not represent the main contributing factor to the development or aggravation.”
Dr Powell accepts that Mr Omar has the symptoms of which he complains both on the left side coming from the lumbar spine injury and in respect of the left hip. He considers that the left hip pathology and symptomology is unrelated to employment.
Dr Powell concludes:
“In relation to the left hip, this is clearly a pre-existing disease process of which employment does not represent the main contributing factor in either the development or aggravation.
Mr Omar’s current clinical presentation in relation to the left hip can be explained solely on the basis of the pre-existing disease process. The relationship to employment is temporal only. There is no history of any specific in jury that is likely to have caused or contributed to the left hip pathology identified on the investigation.”
To succeed in respect of the consequential condition, Mr Omar does not need to establish that the alteration in gait caused a change in the pathology in the left hip. The underlying condition as evidenced by the radiology was, on the evidence, asymptomatic. Mr Omar says he altered his gait because of the pain in his lower back and because of the left sided radiculopathy and had to manoeuvre awkwardly. He gave evidence that the symptoms in his left hip developed progressively. Dr Dryson in his report of 29 November 2021 opines that this alteration in gait caused the left hip symptoms.
The evidence does not need to establish change in the underlying pathology. That is, it is well settled that it is not necessary for Mr Omar to succeed in respect of the consequential condition in the left hip that he alleges here, to establish “injury” to his left hip within the meaning of s 4 of the 1987 Act but that the symptoms and restrictions in his left hip have resulted from his lumbar spine injury. Dr Powell concedes a temporal connection although of course a temporal connection only is not determinative. All of the evidence must be weighed in the balance.
On the evidence Mr Omar was consistently reporting that he was experiencing left sided pain extending to his buttocks and into his leg. It is not up to Mr Omar to diagnose his own medical condition. The persistence of his complaints of pain in the back and legs is noted from the clinical notes. Ultimately investigations are ordered which reveal underling pathology in his left hip.
Dr Dryson considers that the left sided radiculopathy has altered the gait and aggravated the underlying pathology in the left hip.
Dr Powell does not seemingly turn his mind to the consideration of a consequential condition in the left hip despite having the report of Dr Dryson dated 29 November 2021 available to him.
Dr Dryson provides a further report dated 21 July 2022 which also attributes causation to the original injury. When all the evidence is weighed in the balance the history on which he bases this opinion namely report of left hip pain since injury is not supported on the evidence.
This leaves the consequential condition. All of the evidence has to be weighed in the balance and a determination made on the balance of probabilities as to whether the condition in the left hip was consequent upon the lumbar spine injury.
When I weigh all of the evidence in the balance I am satisfied that the evidence of Mr Omar that his left hip symptoms developed gradually is consistent with the other evidence before me. He gave evidence that he had to manoeuvre awkwardly since injury to his lower back and altered his gait. His limp is supported by surveillance evidence.
Mr Omar gave evidence that he did not suffer from left hip pain prior to the injury. There is no evidence before me to suggest otherwise. There is no doubt that he has an underlying condition in the left hip as demonstrated by the CT scan dated 1 November 2021. That scan was taken reporting a history of chronic left hip pain and restricted range of motion. These reports of pain and restriction of movement were on Mr Omar’s own evidence of gradual onset after the lumbar spine injury.
For Mr Omar to be held to have suffered a consequential condition in the left hip I do not have to be satisfied as to pathological change as a result of the consequential condition. It is not necessary for Mr Omar to succeed in respect of the consequential condition in the left hip that he alleges here, to establish “injury” to his left hip within the meaning of s 4 of the 1987 Act but that the symptoms and restrictions in his left hip have resulted from his lumbar spine injury.
When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Mr Omar suffered a consequential condition in his left hip as a result of his lumbar spine injury on 17 March 2021. When I weigh all of the evidence in the balance I am not able to be satisfied that Mr Omar suffered an injury to his left hip on 17 March 2021 such injury consisting in the aggravation of an underlying disease in the left hip to which employment was the main contributing factor to the aggravation.
On the allegation of injury to the left hip on 17 March 2021 there will be award for the respondent. On the allegation of a consequential condition in the left hip the finding is in favour of the applicant.
Accordingly the lumbar spine and left lower extremity (left hip) (consequential condition) will be remitted for referral to a MA to assess the degree of whole person impairment, if any, as a result of injury deemed to have occurred on 17 March 2021. The documents to be referred to the MA are those admitted in these proceedings by consent as set out above.
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