Papa v R P Bricklaying Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Papa v R P Bricklaying Pty Ltd [2024] NSWPIC 272
APPLICANT:	Robert Papa
RESPONDENT:	R P Bricklaying Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injuries to right lower extremity (ankle) and injury/consequential condition of right lower extremity (hip) determined by Commission; accepted consequential condition of lumbar spine; claim for consequential condition of left lower extremity (knee) and right and left upper extremities (shoulders); respondent disputed consequential conditions of left lower extremity and right and left upper extremities; consideration of Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Nguyen v Cosmopolitan Homes; applicant sustained consequential condition of his left lower extremity as a result of injury to his right lower extremity; Held – award for respondent with respect to consequential condition of right and left upper extremities; matter remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect of the claim for consequential condition of the right upper extremity (right shoulder) and left upper extremity (left shoulder). 2. The matter is remitted 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: 5 April 2016 – personal injury. Body system/parts: right lower extremity (right ankle; subtalar fusion; right hip); lumbar spine; left lower extremity (left knee), and TEMSKI scarring. 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.

STATEMENT OF REASONS

BACKGROUND

The applicant, Robert Papa (Mr Papa) was employed by the respondent, RP Bricklaying Pty Limited, as a bricklayer.
Mr Papa sustained an accepted injury to his right ankle on 5 April 2016. It has been determined that as a result of that injury, he also sustained an injury to and consequential condition of his right hip; and accepted that he has sustained a consequential condition of his lumbar spine. He also claims to have sustained consequential conditions of his right shoulder, left shoulder, left knee, and left hip.
On 12 July 2021, the respondent’s insurer, GIO, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the applicant had sustained injury on 5 April 2016 to his right hip, left hip, bilateral knees, bilateral shoulders, neck, and back. It confirmed that liability for injury to the applicant’s right ankle was accepted. GIO disputed liability for surgery to the applicant’s right hip.
The applicant brought proceedings in the Personal Injury Commission (Commission), in Matter Number W3205/21, seeking an award for the costs of right total hip replacement (THR), and a general order pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for treatment of his right hip.
On 24 January 2022, Member Wright determined that the applicant’s THR, performed on
12 January 2021 by Dr Sunny Randhawa, was reasonably necessary as a result of both injury to the right hip sustained on 5 April 2016, and right hip condition consequential to injury to the right ankle and foot on 5 April 2016.
By letter dated 15 August 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in the sum of $160,480, in addition to the increase provided for by s 66 (2A) of the Act in respect of injury to the lumbar spine.
On 14 August 2023, the respondent’s insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the 1998 Act.
GIO disputed that the applicant had sustained a consequential injury to his bilateral shoulders and left knee as a result of the accepted injuries to his right ankle and right hip. GIO confirmed that injuries to the applicant’s right ankle, right hip, lumbar spine, and scarring were not in issue.
By letter dated 15 August 2023, the solicitors acting on behalf of the respondent communicated to the applicant’s solicitors an offer to settle the applicant’s claim by payment of the sum of $25,949.58, in respect of 12% whole person impairment (WPI) as a result of injury to the lumbar spine and right ankle, with date of injury 5 April 2016.
By letter dated 29 August 2023, the applicant’s solicitors responded to the offer of settlement. They queried the basis on which the offer was made, as injury to the applicant’s right hip had been accepted; and Dr Frank Machart, who was qualified by the respondent, had assessed 15% WPI as a result of injury to the right hip, but the respondent had not considered that assessment with respect to its offer.
By email dated 30 August 2023, the respondent’s solicitors advised that the applicant’s solicitors had conflated the issues of injury and impairment. Dr Machart had assessed 0% WPI for the applicant’s hip, based on a deduction for pre-existing abnormality, and not due to a finding that there was no injury.
By email dated 30 August 2023, the applicant’s solicitors stated that Dr Machart had based his opinion “relating to causation”, which was inconsistent with the Commission’s findings.
By letter dated 8 December 2023, the applicant’s solicitors requested on his behalf that GIO review its decision to dispute liability with respect to his bilateral upper extremities and left lower extremity injury.
On 22 December 2023, GIO issued a review notice. It advised that it was disputed that the applicant had sustained consequential bilateral shoulder or left knee conditions as a result of his accepted injury on 5 April 2016, “nor as a result of your accepted injuries.”
The applicant lodged an Application to Resolve a Dispute (the Application) on
11 January 2024.
The applicant claimed that on the deemed date of 5 April 2016, he sustained injury due to the aggravation, acceleration, exacerbation, or deterioration of a disease.
The applicant claimed that he had sustained a fall whilst standing on a piece of scaffold, when he leant on a wooden prop that gave way. He landed heavily on his right lower extremity (heel, foot, and ankle) and lumbar spine.
The applicant also claimed that “furthermore”, he sustained a consequential injury to his right lower extremity (hip) and left lower extremity (knee) as a result of his altered gait following surgery to his right ankle. “Furthermore”, the fall caused an aggravation, acceleration, exacerbation and/or deterioration of the applicant’s pre-existing disease.
“In addition,” the applicant sustained consequential injuries to his bilateral upper extremities (shoulders) as a result of being placed on crutches for approximately three months following surgery.
The description of injury was amended at the conciliation/arbitration hearing as recorded below.
The Application claimed the sum of $175,490, pursuant to s 66 of the 1987 Act, in respect of 47% WPI, as a result of injury to the right upper extremity; right lower extremity; left upper extremity; left lower extremity; lumbar spine; and TEMSKI scarring.
The respondent lodged its Reply on 6 February 2024.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the applicant has sustained consequential condition of his left knee; consequential condition of his right shoulder; and/or consequential condition of his left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 23 April 2024, in person.
Mr Tanner of counsel, instructed by Mr Kardam, appeared for the applicant, who was present with his wife as support person. Mr Saul of counsel, instructed by Ms Nguyen, appeared for the respondent. Ms Browne of GIO was also present.
The Application was amended to delete reference to “deemed” date of injury. The Application was also amended to delete the words “bilateral lower extremities (knees and hips), and bilateral upper extremities (shoulders)” from the description of injury.
The matter proceeded as a claim in respect of a personal injury on 5 April 2016.
The parties agreed that the Medical Assessor would be requested to assess the applicant’s right lower extremity (right ankle, subtalar fusion, and right hip), lumbar spine and TEMSKI scarring, as those body parts were not in dispute. The balance of the referral would depend on my determination.
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 and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Robert Papa

The applicant’s first statement is dated 6 April 2021. It was mainly directed to his claim for the cost of surgery to his right hip.
On 5 April 2016, he was standing on a piece of scaffold, leaning over a wooden framing brace that gave way. He fell forward from a distance of approximately 1m and landed very heavily on his right heel, jarring his back, bilateral knees, bilateral shoulders, and bilateral hips.
He was treated by Dr Michael Walsh, orthopaedic surgeon. He had his subtalar joint in a backslab, and Dr Walsh recommended a walking boot, and that he refrain from weightbearing for a period.
When he began weightbearing, he was left with quite severe pain and stiffness in his right ankle and foot.
His general practitioner (GP), Dr Evelyn (Fui-Ling) Kong, referred him to Dr Roderick Kuo, orthopaedic surgeon. Dr Kuo performed right subtalar joint arthrodesis bone graft on
26 July 2018.
He continued to experience persistent pain and stiffness in his right foot and ankle.
Post-surgery, he noticed he was walking with a slight limp because of his right foot and ankle. He was attempting to shift the pressure of his body weight to relieve some of the pain. Over time, the change in his gait placed undue load and strain on his lower back, left and right hip. He noticed gradual onset of pain, much worse on his right hip than on his left hip or lower back.
His GP referred him to Dr George Gayagay, who submitted a request for right hip arthroscopy, with staged procedure on other joints.
On 10 January 2021, he collapsed with pain in his right hip as his lower limbs gave way. He attended Norwest Emergency Department and Dr Randhawa recommended right THR, which he underwent on 12 January 2021.
Since the surgery, he had noticed significant improvement in the mobility of his right hip. He still had occasional numbness on his right upper thigh region.
He continued to experience nerve-like pain across the lower part of his back, travelling down to the right buttock, sciatica pain in his left leg, numbness in his right upper thigh, and left knee pain. On occasion, he had numbness and tingling sensation in his right ankle and foot.
He had not returned to work since the injury.
The applicant’s second statement is dated 28 September 2023.
He sustained a fracture to the medial femoral condyle of his left knee about 20 years ago.
Dr Rizkallah performed an internal fixation procedure, and he made a complete recovery within 12 months of the surgery.
He recalled some intermittent shoulder pain prior to the subject injury, which he put down to the heavy nature of his work. He could not recall if he sought treatment but was confident the pain never impacted his ability to perform his duties.
He had always maintained that immediately following the incident on 5 April 2016, he noticed symptoms in both knees.
On 13 April 2016, Dr Walsh reported that he was not managing well with crutches. He was completely reliant on his left foot and leg whilst using the crutches.
He was in plaster for approximately six weeks, and later in a boot. His cast remained in place for three months. He had to use crutches during this period and found it difficult.
Having issues with his right ankle and being in a cast/utilising crutches, meant he was not walking as he normally would. He understood from his treating doctors that the way he was walking placed a lot of strain on his knees, hips, and lower back. The crutches put a lot of pressure on his upper limbs and he experienced discomfort in his shoulders and arms.
Following the fusion of his ankle, he was on crutches for approximately three months. He really struggled using them and found they placed a lot of strain on his arms and shoulders.
Over time, the change in his gait placed increased strain on his lower back, hips, and knees. He was undergoing physiotherapy and taking medication.
On 30 August 2021, he underwent left total knee replacement (TKR) by Dr Randhawa. He did not experience the relief he had hoped for, as he continued to experience pain and a clicking noise.
He had not yet arranged a consultation about his left shoulder symptoms, “due to the never-ending issues” with his knees, and requirement to use walking aids, which put a lot of pressure on his shoulders. He had for a long time been reliant on either walking frames, crutches or walking sticks, which placed strain on his shoulders.
On 16 December 2021, he underwent a poly exchange and quadriceps repair to his left knee.
He developed a staph infection towards the end of 2022 and was admitted to Sydney Adventist Hospital from 11 November 2022 to 18 November 2022, where he underwent numerous procedures.
On 16 February 2023, Dr Randhawa performed a Stage 2 left TKR, which involved removal of the temporary infused knee and replacement with a new gold prosthetic.
On 9 March 2023, he underwent a poly exchange procedure to his right knee.
On 8 September 2023, he was referred for a right shoulder ultrasound. The scan revealed a rupture of two tendons.
He understood the insurer had accepted a consequential injury to his hip as a result of altered gait whilst using crutches. He did not understand why they would not agree that his left knee had been further aggravated as a result of altered gait.
He was confident the use of crutches caused him to experience pain and difficulties with his shoulders, as he experienced increased pain and difficulties with his shoulders whilst using crutches. When they were no longer needed, the pain subsided. However, the issues had continued to linger.

Medical evidence

Annangrove Medical Centre

On 16 August 2010, Dr Mary Bower-Williams recorded that the applicant had had a sore right shoulder for three weeks. He was undoing a bolt and felt sharp pain in the shoulder.
Dr Roger Bower-Williams recorded on the same day “rotator cuff tear.”
On 20 September 2010, Dr Slavko Stojanovic recorded that the applicant still had problems with his right shoulder. He had an injection that did not help. Dr Stojanovic noted “right frozen shoulder” and “not fully frozen yet.”
On 9 December 2010, Dr Joan Ricketts recorded that the applicant had a disabled sticker due to an injury to the knee in the past. He got intermittent pain occasionally.
On 7 January 2012, Dr Stojanovic recorded that the applicant presented with films of his left shoulder. He had not been able to work since about 10 November 2011. Dr Stojanovic noted left rotator cuff tear.
On 8 February 2012, Dr Stojanovic recorded that the applicant was still waiting to see
Dr Duckworth. His left shoulder was unchanged.
On 14 March 2012, Dr Stojanovic recorded that the applicant had an appointment with
Dr Duckworth tomorrow afternoon and needed an MRI before then. His shoulder was unchanged.
On 12 April 2012, Dr Stojanovic recorded that the applicant had had a steroid injection to his left shoulder. It was still a bit sore. He was to see Dr Duckworth at the end of the month. A mobility parking form was completed – “chronic left knee injury.”
On 7 May 2012, Dr Stojanovic recorded that the applicant had had a pretty good response from a steroid injection of the left shoulder. He had been able to work a few hours “per day since last week but needs a certificate.”
On 19 June 2012, Dr Stojanovic recorded that the applicant had been working for up to five hours a day. His left shoulder was starting to hurt again, two months since the injection.
On 26 July 2012, Dr Stojanovic recorded that the applicant was still struggling with his left shoulder.
On 17 September 2013, Dr Stojanovic recorded that the applicant had pain in his left knee. He had had lateral femoral condyle fracture about 10 years ago.
On 6 November 2014, Dr Stojanovic recorded that the applicant had pain in the left knee laterally, and some swelling.
On 7 April 2016, Dr Stojanovic recorded that on 5 April 2016 the applicant fell off scaffolding at work. He landed on a concrete slab approximately 1.5m below. The only bony injury was a comminuted fracture of the right calcaneus.
On 25 May 2016, Dr Stojanovic recorded that the applicant was limping but out of the boot. He had pain in the back of the left knee. Posterior tenderness suggested tendonitis with altered gait.
On 2 June 2016, Dr Mark Charteris recorded “left knee sore with the change in gait, fracture in left knee 10 years ago. The knee had given no trouble for 10 years. Now painful to get up especially. OA (osteoarthritis) on films.”
On 1 July 2016, Dr Stojanovic recorded that the applicant had pain in the right shoulder. He still had limited weightbearing ability.
On 12 July 2016, Dr Stojanovic recorded that a scan showed tendinopathy with tears and active bursitis.
On 27 September 2016, Dr Stojanovic recorded ongoing problems with right shoulder pain at night. “Also L (left) knee pain, mainly with stairs.”
On 24 October 2016, Dr Stojanovic recorded that the applicant’s left knee was irritable, due to change in gait.
On 27 October 2016, Dr Kong recorded that the applicant had chronic and increased left knee pain. It was tender to walk on stairs. The applicant also had right shoulder pain, which was likely to be bursitis and tendinopathy.
On 29 June 2017, there is a notation that the applicant had a comminuted fracture of the right calcaneus on 5 April 2016. He was on pre-injury duties.
On 6 October 2017, Dr Belinda Boots Lorenzo recorded that the applicant had right shoulder pain. He could not rest his shoulders, “needs to work.”
On 20 October 2017, Dr Lorenzo recorded stable tear of subscapularis/supraspinatus tear, subacromial and subdeltoid bursitis.
On 16 February 2018, Dr Kong referred the applicant to Professor Brian Owler.
Dr Kong advised Prof Owler that the applicant had a limping gait, increased back and hip pain after the injury. He had been compensating since he had the injury. “Started with left hip pain, then now mainly putting weight on right hip.”
On 28 November 2018, there is a notation that the applicant had started weight bearing slowly. He was wearing a cam boot.
On 19 January 2019, there is a notation that the applicant was not to fully weight bear.
On 3 April 2019, the applicant still had right foot and ankle pain, “weight bearing OK”.

On 13 January 2020, Dr Sindhu Dommaraju recorded that the applicant was helping his son load the truck and hurt his left shoulder. He had a sudden onset of pain in the neck and left shoulder. Dr Dommaraju noted rotator cuff injury and “? capsulitis.”
On 5 February 2020, Dr Dommaraju recorded “left shoulder pain worsening”. The applicant threw something onto a truck two weeks ago, which caused the pain. “(? rotator cuff injury)”.
On 19 February 2020, Dr Dommaraju recorded that the applicant had bursitis, tendinitis, and tendon tear in the left shoulder. He was advised to have physiotherapy and steroid injection “if gets worse.”
The applicant also had left knee pain and swelling. Dr Dommaraju noted “? Multiple joint arthritis”.
On 3 December 2020, there is a record of worsening left knee pain, right ankle injury and right hip pain, “which means he is putting more pressure on the left knee.”
On 6 January 2021, there is a notation that the applicant had had MRI of his left knee. “Pain is getting a lot worse.”
On 29 March 2021, Dr Dommaraju recorded that the applicant’s back pain was worsening. His hip was improving, and his knee was worsening.
On 12 July 2021, Dr Dommaraju recorded severe left hip, gluteal, and knee pain.

Dr Michael Walsh – orthopaedic surgeon

Dr Walsh reported to Dr Stojanovic on 13 April 2016.
Dr Walsh recorded a history that the applicant had fallen about 1.5m, landing heavily on his right foot, sustaining a comminuted fracture of the calcaneus. This was not associated with any other injury to his right lower extremity or spine.
On 23 June 2016, Dr Walsh reported to GIO that the applicant’s right foot was settling quite well. The recent X-ray confirmed that the fracture was healing satisfactorily, although alignment was somewhat disturbed.
The applicant had regained full mobility of his ankle and had 50% range of movement of the subtalar joint.

Glenhaven Physiotherapy Centre

On 14 October 2016, Ms Stacy Miller reported to Dr Stojanovic that she had been treating the applicant for his right calcaneus fracture.
On 13 October 2016, the applicant reported that he twisted his right lateral ankle on an uneven surface. He also reported he had had surgery on his left knee, which had been sore because he was compensating for his right ankle/heel.

Dr George Gayagay – orthopaedic surgeon

Dr Gayagay reported to Dr Dommaraju on 25 February 2020.
The applicant had presented with right hip pain.
Dr Gayagay recorded a history of a fall that resulted in the applicant landing over his heels and eventually on his buttocks.
The fall had caused a right heel fracture, which was attended to at the time. Since then, the applicant had been having problems with his lumbar and cervical spines, left knee, and now his right hip.
Because of the applicant’s age and type of work, Dr Gayagay advocated a conservative approach to treatment of his right hip.
Dr Gayagay reported to GIO on 24 March 2020.
Dr Gayagay reported that Mr Papa sustained a fall at work, resulting in a right heel fracture. He reported that he landed on his buttocks.
Dr Gayagay opined that the right heel fracture is a significant injury and would have been a distracting source of pain. This could have resulted in missed injuries. “Indeed”, the applicant had reported back pains, left knee pain and right hip pain.
Dr Gayagay further opined that the fall and resultant fracture, by change of gait patterns, had exacerbated the applicant’s left knee and right hip pathologies. The problems were pre-existing and would have been as severe four years ago, but asymptomatic prior to the fall.
On 20 July 2020, Dr Gayagay reported to the applicant’s solicitors.
Dr Gayagay reported that the fall in 2016 had “certainly” exacerbated an underlying pre-existing degenerate joint. The fractured heel was a distracting injury that could have masked pain arising from the right hip, left knee, and spine. Any altered gait patterns could exacerbate/aggravate a degenerate asymptomatic weight bearing part, for example, hips and knees.
Dr Gayagay opined that the applicant’s “left knee could have arisen” from the fall. If not a direct effect, it would be a sequela of the fall, following altered gait pattern.

Dr Frank Machart – orthopaedic surgeon

Dr Machart was qualified by the respondent and reported first on 5 December 2019.
Dr Machart recorded a history that the applicant fell and landed on his right heel. A fracture was diagnosed at Windsor Hawkesbury Hospital, where the applicant was kept overnight. He was given crutches and a boot. Within a month, he also experienced lower back pain.
The applicant had had a fusion 12 months ago, which did not help. He was left with pain and right heel discomfort, “outer aspect of the right ankle”, lower back pain, and sciatic pain in the left leg.
Dr Machart recorded a past history of left knee injury; right hernia repair; and the development of pain in both shoulders, worse on the left, two years ago. There was no precipitating event, although it may have been due to bricklaying.
Dr Machart referred to a report of Dr James Bodel, dated 2 September 2019, which is not before me.
Dr Machart’s report included the following paragraph (punctuation and abbreviations as in original):
“IME, Dr Bodel, 2 September 2019. The narrative of injury was right foot, ankle, low back and hip pain and pain in the front of both knees. Fracture of calcaneus diagnosed. Disappointed with outcome of arthrodesis. The doctor noted diminished movement in both shoulders, ankles, subtalar joints. The doctor diagnosed rotator cuff pathology in both shoulders, disc pathology lumbar spine, fracture calcaneus. The doctor assessed WPI, DRE I cervical spine, DRE II lumbar spine at 7%, and subtalar fusion 10% LEI [sic], combined with restricted movement in the ankle. Included diminished movement in the shoulders, and applied no deductions,”
Dr Machart commented that it was not clear why Dr Bodel included diminished movement in the shoulders. He had not seen contemporaneous evidence of shoulder injury on enquiry with Mr Papa. He did not indicate that he injured his shoulders. While the diagnosis of rotator cuff disease may be correct, Dr Bodel appeared to be alone in including this pathology in the WPI.
Dr Machart diagnosed a fracture of the right calcaneus and derangement of the subtalar joint, subjected to arthrodesis. The applicant suffered an axial injury to the skeleton, which uncommonly transmitted to the lumbar spine. No fractures were diagnosed. However, aggravation of spondylosis was evident.
Dr Machart was advised that the applicant’s shoulders and his lumbar spine had been claimed to be injured. The treating doctors “claim[ed]” that it was consequential to the right foot/ankle injury, while Dr Bodel, in his WPI assessment, “seems to suggest” that the injuries were a direct result of the incident on 5 April 2016.
Although no direct question was asked, Dr Machart responded:
“Lumbar spine, yes.
Shoulders, no.
Explanation outlined above.”
Dr Machart assessed WPI of 0% for scarring; 8% WPI as a result of injury to the right ankle and subtalar joint; and 7% WPI as a result of injury to the lumbar spine. The combined WPI was therefore 14%. Having then made a deduction of one-tenth from the assessment of the lumbar spine, pursuant to s 323 of the 1998 Act, reducing it to 6% WPI rounded, the final WPI was 14%.
Dr Machart next reported on 9 July 2020. This examination was directed to the claim with respect to the applicant’s right hip.
Dr Machart recorded that the applicant had also recently developed pain in the left knee, which had been subjected to fractures around the joint 15 years ago.
There were plans for a right THR and the applicant was keen to proceed.
Dr Machart recorded complaints of pain in the right hip and groin. The applicant walked slowly, limped, and used a walking stick.
Dr Machart opined that he did not have evidence that supported the applicant’s claim of right hip osteoarthritis caused or aggravated by the injury. Hip arthroplasty was indicated, but not as a result of the injury on 5 April 2016.
Dr Machart’s next report is dated 19 August 2021.
Dr Machart referred to the history he had previously recorded. He noted that the applicant was on crutches for three months after the injury. He underwent surgery in July 2018 and was again on crutches for three months.
Dr Machart reported that he had noted “past and intercurrent history” of left knee injury with operation 15 years before, and pain in both shoulders, worse on the left, which developed in 2017 without specific injury.
The applicant’s recollection on this occasion was that on 5 April 2016 he injured his right ankle, lower back, and right hip. He thought that through using crutches, he could have developed pain in both shoulders. He underwent right hip replacement six months ago. His right hip “felt pretty good now.”
The applicant had developed pain in his left knee 12 months ago, thought to be due to altered gait, and similarly pain in the left hip.
The applicant’s current symptoms were:
·        lower back pain, radiating into the left calf;
·        pain in the left hip;
·        pain and stiffness in the left knee;
·        pain and stiffness in the right ankle, and
·        pain in both shoulders, the left worse than the right.
Dr Machart did not agree that the pathology in the applicant’s right ankle caused or aggravated pathology in the right hip and right [sic] knee.
Dr Machart opined that the pathology of injury was right heel fracture, treated by arthrodesis, and axial injury that caused trauma to the lumbar spine, aggravation of spondylosis. He did not see evidence of injury affecting areas other than the lumbar spine and right heel.
Dr Machart reported that contemporaneous evidence of injury to each shoulder was not to hand. Mr Papa was not clear about the onset or mechanism of injury. Dr Machart put to him that the symptoms could have happened while he was on crutches. The applicant thought of that possibility.
Dr Machart opined that the severity of the symptoms, and the limitation of movement of the applicant’s shoulders now was not consistent with use of crutches at the time of the injury, and at the time of recovering from ankle arthrodesis. This was a hypothetical and was not accompanied by medical evidence. Dr Machart could not conclude there was injury to both shoulders. There was no evidence of injury to either knee.
Dr Machart did not see evidence of altered gait caused by the injury on 5 April 2016 or due to other cause. He opined that using crutches unloaded the injured right limb, and limited weight transfer on the uninjured left limb, causing less walking, rather than increase in usage of the left hip or left knee.
Dr Machart’s diagnoses were unaltered since his previous assessment. The applicant had osteoarthritis of the right hip, evident at the time of the injury. There was gradual deterioration that had led to hip replacement, in line with the prognosis for osteoarthritis.
Dr Machart was asked to opine on whether the applicant suffered injury on 5 April 2016 or subsequent consequential injury to the lumbar spine; shoulders; or knees. He responded as follows:
(a)     Lumbar spine: Yes. Aggravation of pre-existing osteoarthritis.
(b)     Shoulders: No.
(c)     Knees: No.
Dr Machart concluded that, on the balance of probabilities, there was not sufficient injury to the applicant’s right hip to cause alteration of the clinical progression of osteoarthritis.
Dr Machart’s final report is dated 24 July 2023.
Dr Machart reported that the narrative of injury was that the applicant injured his right heel. He apparently experienced pain in the right hip in hospital. He experienced lower back pain. Right hip replacement was conducted two years ago. The applicant was better after.
The applicant reported pain in the left knee when using crutches. There was an additional injury when he fell in August 2021. He underwent left TKR on 30 August 2021. His knee was unstable and there was an additional operation on 16 December 2021. He underwent two-stage revision in February 2022. His knee was unstable, and the polythene was exchanged on 9 March 2023. He fell when his leg apparently gave out on 22 April 2023. The wound was re-sutured.
The applicant’s symptoms were recorded as:
·        right hip pain, reported to have started two years ago, when using crutches;
·        lower back pain, radiating into the left calf;
·        pain and stiffness in the left knee, knee unstable;
·        pain and stiffness in the right heel/ankle, and swelling;
·        pain in both shoulders, the right stiff and difficult to elevate. Diagnosed with rotator cuff pathology. No surgical intervention, apparently set aside until the knee symptoms were resolved, and
·        pins and needles in both hands, thumb, index, and middle fingers, over the last 18 months.
Dr Machart did not agree that injury to the applicant’s right heel and right ankle pain caused altered stress on the same side hip. “If anything, less.” The pain in the right heel and ankle caused less stress on the right hip. The applicant was using crutches. He put less pressure on the right lower limb as a whole. His walking capacity was substantially reduced. He walked less. He was not working.
Dr Machart referred to Dr Bodel’s report dated 14 July 2022. It was not clear from the mechanism of injury to the right ankle how Dr Bodel linked several other joints to this injury. Specifically, Dr Machart did not see evidence that there was post-traumatic arthritis in the right hip.
Dr Machart reiterated that he had diagnosed injuries to the right ankle and lumbar spine. The diagnostic features had not changed. There was no additional pathology related to the index injury in the right hip, left hip, left knee, left shoulder, or right shoulder.
Dr Machart had outlined his reasoning in his previous reports, and it remained unaltered.
Dr Machart opined that the applicant had not sustained injury to his neck or bilateral shoulders on 5 April 2016. He did not diagnose rotator cuff pathology in each shoulder as being the result of that incident. It was argued that the pathology developed as a result of using crutches in three months following the fracture, and three months following arthrodesis. For that to be the case, he would have to see contemporaneous evidence of symptoms during that period.
As regards the applicant’s left knee, Dr Machart diagnosed osteoarthritis not caused by the index injury. It may have been argued that the right lower limb pathology caused increased pressure on the left leg. He did not find evidence in support of this hypothetical.
The applicant was using crutches to alleviate stress on the opposite limb. He was walking and working less than he would have been in the absence of the injury. The combined analysis of the mechanics was not in support of the view that there was more pressure on the opposite limb. The left knee osteoarthritis was a product of the intra-articular fracture 15 years before. There was no significant contribution from the trauma in 2016.
Dr Machart assessed 7% WPI as a result of injury to the right lower limb (subtalar joint arthrodesis and ankle); and 15% WPI as a result of injury to the right hip, but with a deduction of the entire assessment, leaving an assessment of 0%.
Dr Machart also assessed 5% WPI as a result of injury to the applicant’s lumbar spine, a total assessment of 12% WPI. He did not consider that the applicant had sustained injury to the neck, bilateral shoulders, or left knee.

Dr James Bodel – orthopaedic surgeon

Dr Bodel reported to the applicant’s solicitors on 22 October 2020. As I have noted, he had provided an earlier report, which is not in evidence.
This report was mainly concerned with the dispute as to injury to the applicant’s right hip.
Dr Bodel recorded that the applicant had had minor niggling backache and shoulder pain over the years, but nothing serious until the fall on 5 April 2016. He summarised the applicant’s injuries as injury to the back; both knees; both hips, the right much worse than the left; and fracture of the calcaneus into the subtalar joint.
Dr Bodel recorded a consistent history of the injury and the applicant’s treatment.
Dr Bodel recorded the applicant’s complaints as related to the lower part of the back, right buttock and thigh; burning pain down the right leg; pain and stiffness of the right hip; numbness and tingling in three toes of his right foot; pain and stiffness of the right ankle and subtalar joint; and he walked with a limp on the right, with his right foot externally rotated.
Dr Bodel recorded that the applicant “still” had a restricted range of movement in both shoulders.
Dr Bodel opined that, once the applicant began to weight bear, he was left with quite severe pain and stiffness. This put undue strain on the right knee, the right hip, and the back, which became symptomatic over time.
The applicant had had a subtalar fusion more than two years ago, which had not helped, and he still had a grossly abnormal gait pattern. Dr Bodel opined that this had put an undue load on his arthritic right hip, which was asymptomatic at the time of the injury.
Dr Bodel’s next report is dated 21 June 2021.
The report is again directed mainly to the claim for right THR. Dr Bodel did opine that the applicant injured his lower back, both knees, right hip, and right foot and ankle on
5 April 2016.
Dr Bodel’s next report is dated 14 July 2022.
Dr Bodel summarised the applicant’s injuries as being to the back; both knees; both hips; the left [sic] heel; and bilateral shoulder girdle injuries.
The applicant’s hips and knees, particularly the right hip and left knee, had deteriorated, and he had had a right THR and left TKR.
Dr Bodel recorded that the applicant had had minor backache and shoulder pain in the past, which completely settled prior to his accident. He had had a left knee injury 20 years before, and completely recovered within 12 months.
The applicant’s complaints were of shoulder girdle pain; pain in the lower back; pain in the left and right hips; minimal pain in the front of the right knee; left knee pain; and stiffness in the right subtalar joint and right ankle. He still walked with a limp and used a walking stick.
Dr Bodel diagnosed rotator cuff pathology in both shoulders; soft tissue musculoligamentous injury and strain of the lower back; aggravation, acceleration, exacerbation, and deterioration of post-traumatic osteoarthritis in the right hip and the left hip; aggravation, acceleration, exacerbation, and deterioration of a degenerative knee condition, the left in particular; and fracture of the calcaneus leading to subtalar fusion.
Dr Bodel also provided an assessment of WPI on 14 July 2022.
Dr Bodel assessed 7% WPI as a result of injury to the lumbar spine; 6% WPI as a result of injury to each upper extremity (shoulders); 19% WPI as a result of injury to the right lower extremity (right hip, subtalar fusion, and right ankle joint); 18% WPI as a result of injury to the left lower extremity (left knee); and 2% for TEMSKI scarring. The combined assessment was 47% WPI.
Dr Bodel provided a supplementary report dated 7 December 2023, in which he was asked to comment on Dr Machart’s report dated 24 July 2023. He was provided with an updated statement from the applicant.
Dr Bodel recorded that the applicant had had surgery for his right shoulder [sic], and his shoulders became uncomfortable because of the protracted use of crutches.
Dr Bodel opined that at the time of the injury, the applicant was in his early 50s. He had done heavy work throughout his working life. He would have developed constitutionally based genetically determined arthritic change in the neck, back, hips, and knees, and the rotator cuff area of both shoulders. It was likely that he had some pre-existing and previously asymptomatic degenerative change in those areas, which had been rendered symptomatic as a consequence of the prolonged use of crutches and prolonged abnormal gait pattern on the right side.

Dr Bodel was satisfied that this pre-existing and previously asymptomatic pathological process was covered by the “Disease Provisions of the Act”, and had been aggravated, accelerated, exacerbated, and deteriorated since the injury seven and a half years [ago].
The applicant had rotator cuff pathology in both shoulders. This had arisen as a consequence of the aggravation, acceleration, exacerbation, and deterioration of the previously asymptomatic pathology. Dr Bodel was satisfied that the development of shoulder girdle pain and loss of function was causally related to the injury on 5 April 2016.
Dr Bodel supported the applicant’s statement that the use of crutches over time had caused aggravation, acceleration, exacerbation, and deterioration to previously asymptomatic rotator cuff pathology. This was covered by the “Disease Provisions”.
Regarding the applicant’s left knee, Dr Bodel noted that he had had an injury many years ago. He recovered and did normal heavy work for at least 15 years between that injury and the injury on 5 April 2016.
The applicant had developed post-traumatic osteoarthritis in the left knee, which was a constitutional ailment. The continuing problems with his right-sided limp had led to the aggravation, acceleration, exacerbation, and deterioration of that condition, leading to the need for knee replacement.
Dr Bodel opined that the “injury” was the aggravation, acceleration, exacerbation, and deterioration of underlying disease process, that is post-traumatic osteoarthritis, in the left knee, and work was the main contributing factor.
Dr Bodel opined that the need for the applicant to undergo left TKR arose as a consequence of the work-related injury. The prolonged abnormal gait pattern on the right side had put an undue load on both knees, which had led to the aggravation, acceleration, exacerbation, and deterioration of the disease process in the left knee, and the knee replacement.
Dr Bodel’s assessment of WPI remained unchanged.

SUBMISSIONS

Counsel’s submissions have been recorded, and I will summarise them briefly.

Applicant

The applicant submitted that the dispute related to consequential condition of his left knee, and consequential condition of his shoulders. He relied on Dr Bodel’s evidence, including his summary of the injuries in his initial report, and the history he recorded.
The applicant submitted that it was significant that Dr Bodel had recorded that he had a grossly abnormal gait pattern. He relied on that as bringing an abnormal load on his lower extremities.
The applicant referred to Dr Bodel’s report dated 21 June 2021. He had undergone right THR. There was a causal link because of the nature of the fall, with jarring all through the leg, which caused aggravation, acceleration, exacerbation, or deterioration of the degenerative disease process.
The applicant referred to Dr Bodel’s report dated 14 July 2022. The summary of injuries had been supplemented by the addition of bilateral shoulders. There was a diagnosis of rotator cuff pathology in both shoulders.
The applicant also referred to Dr Bodel’s report dated 7 December 2023, and his answers to the specific questions asked of him. He submitted there was no reason not to accept that using crutches on a prolonged basis and an abnormal gait pattern on the right would lead to aggravation to those specific body parts.
As regards his shoulder pathology, the applicant referred to Dr Bodel’s support of his statement evidence and submitted that Dr Bodel had explained his reasoning.
The applicant also relied on Dr Bodel’s opinion with respect to his left knee. He had had an abnormal gait for five years before undergoing surgery.
The applicant also referred to the determination of Member Wright. He submitted that Member Wright had preferred the opinion of Dr Bodel over that of Dr Machart with respect to the claim for surgery to his right hip. Member Wright was alert to the fact of his altered gait. He had already determined the question of him limping.
The applicant submitted there was nothing to distinguish an overall consequential process of altered gait affecting his left knee and shoulders.
The applicant submitted that his evidence was not in dispute. Dr Gayagay had noticed his antalgic gait. Dr Gayagay had opined that his left knee was degenerative and likely aggravated by his fall.
The applicant submitted that as a matter of commonsense and experience I would have no difficulty in accepting that reliance on walking frames, crutches and sticks would place stress on his shoulders. This was accepted by Dr Bodel.
The applicant submitted that Dr Machart persisted in rejecting injury to his right hip. His evidence was not sufficient to exclude injury to or consequential condition of the left knee. Walking less did not exclude altered gait.
As regards the claim in respect of his shoulders, the applicant submitted that Dr Machart had not addressed what he was saying about the difficulty of getting about, using walking frames, crutches, and sticks, placing strain on shoulders.
The applicant finally submitted that a Medical Assessor should be requested to assess his lumbar spine; right hip; subtalar fusion of his right ankle; left knee; and TEMSKI scarring.
In reply to the respondent, the applicant submitted there was no suggestion that he injured his shoulders in a frank incident. That was not his case. His case was related to the use of crutches. Dr Machart did not suggest that the condition of his shoulders was exclusively caused by bricklaying, therefore excluding a consequential condition.
The applicant submitted that, even if manual activity as a bricklayer did take its toll on his shoulders, that did not exclude the fact that he suffered additional aggravation by the use of crutches and other aids.
The respondent had conceded a “low bar” for a consequential condition. The applicant did not need to argue that use of crutches or other aids was the main contributing factor to any increase in pathology, just persuade me that it caused an impact on his shoulders. Dr Bodel had accepted that it did.
The applicant submitted that the clinical notes had no role to play in excluding the prospect of additional pressure by use of walking aids. He may well have had a pre-existing rotator cuff tear. It did not exclude aggravation by use of the aids. The fact that he had a knee injury before this injury had no bearing on whether it was aggravated and became more symptomatic post the current injury.
The applicant submitted that if there was even a marginal impact by reason of the use of walking aids or altered gait, that would mean there was a material contribution, which satisfied the test. He only relied on consequential condition with respect to his left knee and shoulders.

Respondent

The respondent submitted that the applicant sought compensation with respect to the disputed body parts both as a s 4(a) injury and consequential conditions. It was well known that a “s 4(a) injury” required pathological change, for example, Jaffarie v Quality Castings Pty Ltd.[1]
[1] [2014] NSWWCCPD 79.
The respondent submitted that Dr Bodel had not taken a proper history.
The contemporaneous records did not show any injury to the applicant’s shoulders. The injury was clearly to the right ankle, and it was accepted that he had an aggravation of his back, and, as a result of Member Wright’s decision, his right hip.
The respondent submitted that Member Wright’s decision was relevant to the claim for the applicant’s right hip, but that was all.
The respondent asked, if the applicant had pathology in his shoulders that was caused by the fall, as Dr Bodel opined, what was the mechanism of injury? The applicant had been a bricklayer and would be expected to have degenerative changes to various body parts.
Dr Bodel did not engage with this or the radiological evidence.
The respondent referred to the evidence of Dr Walsh. He did not refer to any other injury than to the right ankle. There was no reference to the applicant’s shoulders.
The respondent referred to the clinical records of Annandale Medical Centre. It submitted that Dr Bodel had not engaged with the history relating to the applicant’s left shoulder and knee. The respondent relied on Hancock v East Coast Timber Products Pty Limited.[2] Whether it was a s 4(a) injury or consequential condition, it had no weight.
[2] [2011] NSWCA 11.
Dr Machart’s opinion carried weight because it was consistent with the applicant having longstanding problems with his left knee and shoulders. The clinical records made clear there was pathology in the left shoulder.
The respondent submitted that Dr Gayagay also had not taken a history about the prior injuries.
The respondent submitted that the test for injury pursuant to s 4(a) of the 1987 Act, that is pathological change, cannot be satisfied.
The respondent conceded that for a consequential condition, “the bar is low”. The test is that in Kooragang Cement Pty Ltd v Bates.[3] There is a need to look at all the evidence and be satisfied there was a material contribution to each consequential condition. The applicant had prior problems with both shoulders, and particularly his left knee. It was not correct that he was asymptomatic before the injury.
[3] (1994) 35 NSWLR 452 (Kooragang).
The respondent submitted that there was no claim for “nature and conditions”, or for the surgery to the applicant’s left knee. There can be no submission that the surgery was reasonably necessary as a result of the injury, and it is disputed that the surgery was reasonably necessary as a result of the injury.

SUMMARY

Consequential condition of the left knee

The applicant relied on a claim that he sustained a consequential condition of his left knee due to altered gait as a result of the accepted injury to his right ankle.
The applicant said in his second statement that he had always maintained that, immediately following this incident, he noticed symptoms in both knees. The clinical records of Annangrove Medical Centre record that he did complain about his left knee in May and
June 2016, and this was put down to altered gait.
Dr Walsh recorded shortly after the injury, in April 2016, that the fall was not associated with any other injury to the applicant’s right lower extremity or spine. That does not of course exclude a consequential condition.
Ms Miller recorded on 13 October 2016 that the applicant’s left knee had been sore because he was compensating for his right ankle/heel.
Dr Gayagay reported that, due to the significant injury to the applicant’s right heel, other injuries could have been missed. The applicant had reported back pain, left knee pain, and right hip pain.
Dr Gayagay did not, however, begin to treat the applicant until 2020, and his opinion in my view supports a consequential condition of Mr Papa’s left knee, rather than any injury sustained in the fall. He opined that the “left knee could have arisen” from the fall, either from a direct effect or as a result of altered gait.
In August 2021, Dr Machart recorded a history of the development of pain in the left knee “12 months ago”, thought to be due to altered gait. The applicant’s complaints in fact go back to 2016, but even then, the symptoms in his left knee were thought to be due to altered gait.
Dr Bodel appeared to have first accepted that the applicant sustained injury to his left knee on 5 April 2016, but eventually opined that the prolonged abnormal gait pattern on the right side had put undue load on both knees, aggravating a disease process in the left knee.
Both parties referred to the “low bar” required to establish a consequential condition.
In order to establish a consequential condition, Mr Papa does not have to satisfy the requirements of s 4 of the 1987 Act, or s 9A of the Act, which requires that employment be a substantial contributing factor to the injury.
In accordance with the decision of Deputy President Roche in Kumar v Royal Comfort Bedding Pty Ltd[4] and the cases discussed therein, the applicant need only establish on the balance of probabilities that the condition of his left knee resulted from the injury to his right foot.
[4] [2012] NSWWCCPD 8.
The applicant has given evidence of walking with a limp, attempting to shift his body weight to relieve pain in his right foot and ankle. He has also given evidence of the periods during which he was reliant on crutches. He also used a cam walker. He stated that for a long time, he had been reliant on walking frames, crutches, and walking sticks.
The respondent referred to Kooragang, in which Kirby P, as his Honour then was, referred to a “commonsense evaluation of the causal chain.”
Although Dr Machart did not accept that the applicant had sustained a consequential condition of his left knee, it seems to me that on the evidence he and his treating practitioners have provided, and notwithstanding Dr Bodel’s somewhat differing positions, he has established on the balance of probabilities that he has sustained a consequential condition of his left knee as a result of the injury to his right ankle on 5 April 2016.
The Medical Assessor will therefore be requested to assess the applicant’s left lower extremity (left knee) as part of his or her assessment of WPI.

Consequential condition of the right shoulder and left shoulder

The applicant does not claim to have sustained injury to his shoulders on 5 April 2016. Rather, he claims to have sustained a consequential condition of his shoulders, as a result of the use of crutches and other walking aids. The same “low bar” therefore applies.
I have once again had regard to the applicant’s evidence. His first statement did not refer to his shoulders, but as I have noted, it was directed mainly to his claim for the cost of surgery to his right hip.
The applicant has referred to experiencing shoulder pain prior to the injury. His GPs’ clinical records contain reference to complaints about both shoulders, and I have referred to those records above. There are records of complaints of the right shoulder in 2016, after the injury, and 2017. The applicant injured his left shoulder in 2020.
As the applicant submitted, the fact that his work as a bricklayer had taken its toll on his shoulders did not exclude additional aggravation by the use of crutches or other aids. However, there is no contemporaneous medical evidence that supports the claim for consequential condition of the applicant’s shoulders. This is unlike his claim in respect of his left knee.
The GPs’ records do not refer to the use of crutches or other aids as having caused or contributed to the applicant’s symptoms or condition.
I have found little assistance from Dr Bodel’s reports. He initially appeared to accept that the applicant injured his shoulders in the fall (which is not the applicant’s case). In his report dated 22 October 2020, he made no reference to symptoms in the applicant’s shoulders being due to the use of crutches or other aids.
In July 2022, it appeared that Dr Bodel still maintained the position that the applicant had injured his shoulders in the fall. He recorded that the applicant had had minor shoulder pain in the past, which completely settled prior to the accident, suggesting it was the accident that caused the pain. He again recorded no history that the pain was related to the use of crutches or other aids. He referred to aggravation of other conditions, but the diagnosis with respect to the applicant’s shoulders was of rotator cuff pathology.
It was only in his final report that Dr Bodel opined that the “pre-existing and previously asymptomatic degenerative change” in the applicant’s shoulders (and his neck, back, hips, and knees) had been made symptomatic as a consequence of the prolonged use of crutches and abnormal gait pattern on the right side.
The applicant submitted that as a matter of commonsense and experience, I would have no difficulty in accepting that reliance on walking aids would place stress on his shoulders. That may be the case, but the applicant still requires cogent medical evidence that he developed a consequential condition of his shoulders as a result of the accepted injury to his right foot. I do not accept that he has such evidence.
In Nguyen v Cosmopolitan Homes,[5] McDougall J (McColl JA and Bell JA agreeing), referring to the discharge of the burden of proof, said:
“The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[5] [2008] NSWCA 246 at [55].
Having considered the evidence, I do not feel a sense of actual persuasion, on the balance of probabilities, that the applicant has sustained a consequential condition of his right upper extremity (right shoulder) or left upper extremity (left shoulder) as a result of the injury on
5 April 2016.
There will accordingly be an award for the respondent in respect of the claim for consequential condition of the applicant’s right upper extremity (right shoulder) and left upper extremity (left shoulder).
I determine as follows:
(a) the applicant sustained a consequential condition of his left lower extremity (left knee) as a result of injury to his right lower extremity on 5 April 2016, and
(b) the applicant has not sustained consequential condition of his right upper extremity (right shoulder) or left upper extremity (left shoulder) as a result of injury to his right lower extremity on 5 April 2016.
The orders are as set out in the Certificate of Determination.

[2024] NSWPIC 272

23 May 2024