Pincham v Crew on Call Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pincham v Crew on Call Australia Pty Ltd [2024] NSWPIC 679
APPLICANT:	Travis Pincham
RESPONDENT:	Crew on Call Australia Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	6 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 in relation to agreed right knee injury on 1 March 2013; dispute as to whether applicant has suffered consequential conditions in his lumbar spine, right hip, right ankle/hindfoot, left knee and left ankle/hindfoot; paucity of treating medical evidence in relation to the alleged consequential conditions; Kooragang Cement Pty Ltd v Bates applied; Held – applicant has discharged his onus of proof in relation to the right hip, lumbar spine and left knee; award for the respondent in relation to the allegations of consequential conditions to both ankles/hindfeet as applicant has not discharged his onus of proof in relation to causation.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to allegations of consequential conditions in the right ankle/hindfoot and left ankle/hindfoot. 2. Award for the applicant in relation to consequential conditions in the lumbar spine, right hip and left knee as a result of the agreed right knee injury on 1 March 2013. 3. The lump sum claim is referred to the President for referral to a Medical Assessor to assess permanent impairment of the following: a. Date of injury: 1 March 2013 b. Body systems: right lower extremity (knee and hip) injury, the lumbar spine, and left lower extremity (knee). c. Documents referred: Application to Resolve a Dispute, Reply, Applications to Admit Late Documents dated 22, 25 and 30 September 2024.

STATEMENT OF REASONS

BACKGROUND

Mr Pincham (the applicant) was employed by the respondent, Crew on Call Australia Pty Ltd as a crew member on a show at Acer Arena, Olympic Park. He was aged 24 at the time of his injury and is presently 36.
The claim for compensation in these proceedings is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based upon an assessment by Dr Patrick in relation to the date of injury 1 March 2013, when Mr Pincham injured his right knee. The respondent has accepted that the applicant sustained an injury to his right knee however, Mr Pincham also alleges he sustained consequential conditions in his lumbar spine, right hip, right ankle and hind foot and left lower extremity, being the knee, ankle and hindfoot. The respondent disputes liability for these consequential conditions.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded in arbitration hearing on 30 September 2024. Mr John Gaitanis, counsel, instructed by Mr Paul Quinn, solicitor, appeared for Mr Pincham, who was present. Mr Andrew Davis, counsel instructed by Ms Emily Gorry, solicitor, and Ms Behne-Smith from the insurer appeared for the respondent.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-A) filed by the applicant dated 22 September 2024;
(d)    Application to Admit Late Documents (AALD-R) filed by the respondent dated 25 September 2024, and
(e)    Application to Admit Late Documents filed by the respondent dated 30 September 2024 attaching the report of Dr Hughes dated 7 August 2024.

Oral evidence

There was no oral evidence. The parties made oral submissions which were sound recorded and a copy is available to the parties. A written transcript (T) of the hearing has been made from the sound recording.

FINDINGS AND REASONS

The applicant submitted that he tends to put up with pain and that is why there is dearth of evidence about the conditions in some of the body parts which he contends were sustained as a result of the right knee injury. He also submits that the respondent’s case is inadequate because Dr Hughes proceeds on the assumption that his right knee injury had achieved excellent functioning whereas he came to surgery in 2023 and had problems with the knee in the preceding 10 years.
Before turning to the competing medico-legal opinions and considering in more detail the parties’ submissions it is useful to summarise the available treating medical evidence.
On 1 March 2013 Mr Pincham attended at the Bankstown-Lidcombe Hospital. The discharge summary records a diagnosis of a knee sprain after twisting his right knee after being hit by a tray which was rising at the back of his truck. He had pain over the medial aspect and was walking with a limp. He had a positive anterior drawer sign which had been demonstrated by the physiotherapist and the working diagnosis was medical meniscus/anterior cruciate ligament (ACL) tear. He was treated with a Zimmer splint and crutches and analgesics were offered.[1]
[1] ARD p 53.
On 7 March 2013 Mr Pincham was seen by Dr Herald, orthopaedic surgeon, in his clinic. He has a more detailed history of how the injury occurred, stating the tailgate of the truck sprung back throwing Mr Pincham off the back of the truck and landing heavily onto the ground.[2] Dr Herald records that he twisted his knee and felt a pain and he was unable to walk and taken to hospital. Dr Herald states that Mr Pincham subsequently continued to have instability and is walking with crutches and a knee brace and he was unable to sleep at night due to pain and instability. MRI scans confirmed a complete ACL rupture and small meniscal tear.
[2] ARD p 54.
On 2 April 2013 Dr Herald operated on Mr Pincham performing a right knee arthroscopy and lateral meniscal repair and ACL reconstruction. In the operation report he states that he found a complex posterior half lateral meniscal tear as well as the ACL rupture.[3]
[3] ARD p 56.
On 26 April 2013 Dr Herald reviewed Mr Pincham and reported that he had been in the splint the whole time since the operation. He recommended he start physiotherapy.[4]
[4] ARD p 58.
On 2 May 2013 Dr Chauhan recorded in his clinical notes that Mr Pincham was walking with a limp and had a “throbbing ache if walking up to an hour of constant movement around house etc.”[5]
[5] AALD-R p 369.
On 14 June 2013 Dr Herald reported that Mr Pincham had full range of movement in his knee, which was stable.[6]
[6] ARD p 59.
On 17 January 2014 Dr Chauhan recorded in his clinical notes that Mr Pincham is using his knee more at work and has stiffness above and below the knee and in the knee in the morning.[7]
[7] AALD-R p 357.
On 14 February 2014 Dr Chauhan recorded that Mr Pincham’s right knee was playing up last week.[8]
[8] AALD-R p 94.
On 5 March 2014 Ryan Szeto, physiotherapist, reported to the insurer that Mr Pincham had been attending a gym program from 23 November 2013 to 23 February 2014 to rehabilitate his right knee following the operation. It was noted that his function has approved significantly and a renewal of the gym membership was requested for three months.[9]
[9] Reply p 20.
On 9 May 2014 Dr Chauhan wrote to Kanny Chow, physiotherapist and exercise physiologist, requesting more physiotherapy because the doctor had noted that reduced muscle bulk persisted in relation to the right knee.[10]
[10] AALD-R p 315.
On 15 April 2014 Kanny Chow reported to the insurer that, with the improved function from the gym program, Mr Pincham has been able to work with Virgin Airlines as a luggage handler and has trialled to perform pre-injury duties with the respondent but they require him to lift up to 50kg. An extension of the gym program was sought to continue to upgrade his functional strength.[11]
[11] Reply p 21.
On 13 August 2014 Mr Szeto reported that there were findings of strength deficiencies, wasting, poor motor control and that Mr Pincham had reported popliteal region discomfort when performing lunging movements. Mr Szeto says that further rehabilitation in form of physiotherapy is recommended.[12]
[12] Reply pp 23-24.
On 23 December 2015 Dr Chauhan recorded in his clinical notes that Mr Pincham’s “right knee is hurting when lying down and painful at all times on and off, it is pain free on occasion”. The doctor also recorded the right ankle was painful. The doctor also notes that “the pain was present since the operation” but he does not clarify if he is referring to the right knee or ankle, or both being painful since the knee operation. The doctor requested X-rays of the right knee noting medial knee pain and posterior knee pain.[13]
[13] AALD-R p 343.
On 16 May 2016 Mr Pincham attended St George Hospital Emergency Department with supra-patella swelling thought to be due to bumping the right knee.[14]
[14] AALD-R p 242.
On 23 April 2018 Mr Pincham attended on Dr Chauhan in relation to gastroenteritis. The doctor also records he requested right knee X-rays as he has “pain worse with standing and walking, pain ever since 2013 ACL reconstruction”.[15] A referral was written to Dr Herald in which Dr Chauhan states that he has “ongoing right knee pain worse with loading ever since his ACL repair. He has right infrapatellar and lateral knee pain especially with loading the knee.”[16]
[15] AALD-R p 390.
[16] AALD-R p 389.
On 18 January 2021 Dr Kyaw, general practitioner from Mittagong Health Care Centre recorded in his clinical notes that Mr Pincham had twisted his ankle two days earlier and he complained of pain and swelling in the lateral aspect. It was noted he had moderate swelling and he was working as a tree logger. The doctor recommended a moon boot, prescribed Mobic and requested an X-ray and ultrasound of the right ankle.[17]
[17] AALD-R pp 12-13.
On 21 January 2021 Mr Pincham underwent a right ankle X-ray and ultrasound on the referral from Dr Kyaw. The clinical history on the report is “twisting injury, swelling”. No acute findings were found on either test.[18]
[18] AALD-R p 41.

On 24 May 2021 Mr Pincham saw Dr Chauhan and the clinical record states that the left ankle is sore, onset two weeks ago with no known triggers. The doctor also recorded that Mr Pincham has had on and off back pain for years and it had recently flared up over the past six months and that he tolerates it and only takes Panadol/ Nurofen Plus if severe. It was noted it was not interfering with his usual activity at this stage. On examination no major swelling was evident.[19]
[19] AALD-R pp125-126.
On 15 July 2021 Dr Kyaw recorded that Mr Pincham had pain in the lateral aspect of his left ankle on and off for six months and he requested a left ankle X-ray and ultrasound.[20]
[20] AALD-R p 12.
On 18 October 2022 Dr Herald reported to Mr Pincham’ general practitioner, Dr Tarun Chauhan.[21] He advises that Mr Pincham continues to have pain in his knee which has been intermittent since the surgery and taking the history that Mr Pincham said he has had back problems every now and again from limping and has had problems with his ankles and feet over the last nine years managed by his general practitioner. Dr Herald said he could not attribute causation of these other issues to his right knee injury because he had not seen Mr Pincham for over nine years.
[21] ARD p 60.
On 20 December 2022 Dr Herald reported Mr Pincham was tender over his lateral joint line and his knee was stable. He stated that MRI scans show a lateral meniscal cleavage tear and associated parameniscal cyst. Dr Herald advised that the tear was in the same region that was the subject of the repair and the doctor suspected it had never healed since the original surgery. He recommended a knee arthroscopy, partial lateral meniscectomy and cyst decompression.[22]
[22] ARD p 61.
On 14 March 2023 Dr Herald performed these procedures.[23] On 28 March 2023 Dr Herald reviewed Mr Pincham and found he had full range of movement with tenderness over the medial joint line.[24]
[23] ARD p 62.
[24] ARD p 63.
In his statement Mr Pincham states:
“[14] lt is correct to say that my medical treatment post-surgery was focused on my right knee. However, I now suffer from an uneven gait when I walk. In addition, I suffer tightness and pain in both hamstrings. This has caused me to experience ongoing lower back and stiffness, pain in the ankles & wasting of muscle.
[15] I am not in the habit of attending upon doctors and it is my usual practice to just put up with pain and get on with day-to-day life as best I can, however my pain and the complications arising from my accident continued to worsen.”
In his supplementary statement Mr Pincham repeats that he “was not in the habit of attending doctors to complain about post injury issues such as gait, tightness in his hamstrings and low back issues, hip, pain in both knees and ankles along with muscle wasting.”
However, I have only summarised the treatment notes where there is a reference to such body parts. I have not summarised all the attendances Mr Pincham made on doctors over the period since his 2013 injury. He has attended on many other occasions. For instance, in 2013 he had at least 13 attendances on Dr Chauhan dealing with his right knee but also his psychological symptoms and removal of warts on his hand. In 2014 he had at least eight attendances for respiratory complaints and also for his knee. The doctor noted on 30 October 2014 he gets right hamstring cramps and it is noted that Kanny Chow has advised him to continue with exercises.[25] He attended Dr Chauhan at least four times in each of 2015 and 2016 for respiratory and other personal complaints. Thereafter, he attended the doctor each year on several occasions for personal complaints until the end of 2020 and into 2021.
[25] AALD-R p 107.
Thereafter, he attended the Mittagong Healthcare Centre for personal complaints on 1 December 2020, the entry on 18 January 2021 for ankle injury two days prior, 4 April 2021 chest tightness, 15 July 2021 pain in left ankle for six months, 28 July 2021 depression, 8 September 2021 depression, 31 January 2022 body aches after Pfizer booster three days prior, 14 and 17 February 2022 for personal reasons, 19 April 2022 psychological reasons, and seven other attendances in 2022 for various conditions. The notes for these attendances are quite detailed. Mr Pincham mentioned many conditions to his doctors which I have not summarised to preserve privacy for Mr Pincham. However, the fact that he did see doctors in the years following the 2013 injury means he did have opportunity to mention the alleged consequential conditions.

Dr Patrick

Dr Patrick has provided medico-legal reports for Mr Pincham dated 6 December 2021,[26] 22 February 2022,[27] 11 December 2023[28] and 6 June 2024.[29]
[26] ARD p 32.
[27] ARD p 41.
[28] ARD p 42.
[29] ARD p 50.
In his first report Dr Patrick states that after Mr Pincham’s injury he was off work for a considerable time. He added:
“He has sustained significant consequential injuries not just at his lower back, but he was favouring (sparing) his right lower extremity (has some right hip discomfort- probably some degree of a trochanteric bursitis right hip), and was also suffering consequential injuries at his left knee, and both ankles, left worse than right.”
He sets out his history of Mr Pincham’s present complaints including that he walks with a somewhat abnormal gait, sparing his injured right knee and as a consequence he places undue pressure onto his left knee and the ankles, the left more than the right. He is troubled by lower back pain, ever since the 2013 accident and he is aware of some discomfort in the right hip more postero-laterally.
On examination Dr Patrick found marked muscular guarding at the lumbar spine. His gait was somewhat tentative. Examination of the right knee revealed cruciate and collateral laxity. In relation to the left knee Dr Patrick found five degrees flexion contracture. He added there is a genuine complaint with his ankles/hind feet and he sets out the restrictions in movement. With the hip, the doctor noted occasional hip pain but said there is no significant departures in range of active motion. He recommended MRI scanning of the lumbar spine.
Dr Patrick concludes his report with the opinion:
“I do believe that it is clear that there have been consequential injuries to his contralateral left knee, and both ankles, and I believe it is more likely than not that he has injured his lower back to some extent at the time of the workplace accident of 1 March 2013 (gone largely unnoticed).”
In his second report Dr Patrick reports on the MRI lumbar spine scan which he says shows early disc degeneration between L2 to S1 and mild disc height narrowing at L5/S1. Dr Patrick says there does not appear to be any actual nerve root impingement.
In his report of December 2023 Dr Patrick reports that he re-examined Mr Pincham and he adheres to his earlier opinion that he suffers from consequential conditions in his lumbar spine and both ankles and left knee as a result of the right knee injury in 2013. At the time of the examination, Mr Pincham was working for Prime AV as a logistics manager, a job that was largely desk bound.
In his report of 6 June 2024 Dr Patrick states in relation to the lumbar spine Mr Pincham had suffered from abnormal gait for some time and had marked muscle guarding at the lumbar spine on clinical examination since the injury in 2013. The doctor confirms that in relation to the right hip on examination Mr Pincham had limitation in adduction and internal rotation and Dr Patrick says he clearly suffered a consequential injury as a result of altered gait due to the right knee injury. Similarly, Dr Patrick reasoned that there had been a consequential injury to the left knee. Later in his report Dr Patrick says the injury to the lumbar spine was due to the mechanism of injury at the time.

Dr Hughes

Dr Hughes, orthopaedic surgeon, provided the insurer with medico-legal reports dated 1 June 2022,[30] 6 February 2024[31] and 7 August 2024. Dr Hughes in his first report recorded Mr Pincham’s present symptoms that his right knee feels stiff and he has sharp pain at times in it. He adds that it has given way on occasions and swells at times and cramping. Mr Pincham also informed Dr Hughes that he has developed symptoms in his left knee with pain and swelling and also his left hip and lower back are painful intermittently and his left ankle is also painful at times. Dr Hughes’ examination of his left knee, left hip and ankles revealed full range of movement and no abnormalities were detected. In relation to his right knee, slight laxity of the anterior cruciate ligament was detected but he found full movements in the knee. The doctor did not observe any limp. He found that the right knee had resulted in an excellent return in function after surgery in 2013.
[30] Reply p 25.
[31] ARD p 15 and Reply p 35.
In relation to the alleged consequential conditions Dr Hughes said it is false reasoning that they could be due to his limp. He adds “there is no medical evidence that consequential injuries could be sustained to his lower back, right ankle and hip or left ankle and knee.” He states he could not determine any condition of the lumbar spine and bilateral ankles.
In his 2024 report Dr Hughes adhered to his earlier view about the alleged consequential conditions. He found that Mr Pincham does not continue to suffer from the effects of the work related injury. He says that Dr Patrick states that Mr Pincham has a lumbar spinal problem but he does not state what the problem is. He disagrees with the assessment of permanent impairment made by Dr Patrick. In answer (g) Dr Hughes expressed the view that Mr Pincham was likely suffering from a degenerative disease of his lumbar spine causing symptoms.

In his report dated 7 August 2024 Dr Hughes performed a file review and commented on Dr Patrick’s reports, repeating his differing opinion to that of Dr Patrick about the existence of the alleged consequential conditions. In his 2024 reports Dr Hughes seems unaware that Mr Pincham came to further surgery in 2023.

Determination

For several reasons I accept the applicant’s overarching submission that Mr Pincham continued to suffer issues with his right knee after his first surgical procedure in 2013. Firstly, there are references in the clinical notes to him limping and having muscle wasting in the right lower limb and hamstring tightness such as on (but not limited to) 14 February 2014, 13 August 2014, 23 December 2015, 23 April 2018, and 18 October 2022. Furthermore, Dr Herald on 20 December 2022 found that Mr Pincham was tender over his lateral joint line in the right knee and that an MRI scan showed a lateral meniscal cleavage tear and associated parameniscal cyst. He stated that the tear was in the same region that was the subject of the previous repair and the doctor suspected it had never healed since the previous surgery.
I find this evidence supports the applicant’s submission and supports Mr Pincham’s evidence in his statement that his right knee continued to have symptoms following the injury and surgery in 2013. Dr Hughes took a history from Mr Pincham of the ongoing issues in his right knee in his report of 6 February 2024 but found that Mr Pincham had an excellent return to function of the right knee. I find that I cannot accept this aspect of Dr Hughes opinion as he does not deal with the years of continuing symptoms and Dr Herald’s opinion, and Dr Hughes also does not refer to the surgery performed by Dr Herald in 2023. I find these are significant omissions by Dr Hughes and, by not considering all the available evidence, I cannot have confidence in his opinion.
The respondent’s argument that Dr Patrick was the first to consider the alleged consequential conditions needs to be considered carefully. It is true that the doctor was the first to diagnose problems in these areas and link them to the 2013 knee injury. However, there are references in the clinical notes to complaints in these body parts before Dr Patrick first reported on 6 December 2021.

Right ankle/hindfoot

In relation to the right ankle, Dr Chauhan on 23 December 2015 referred to Mr Pincham complaining his right ankle was painful. However, there is no other reference to the right ankle until 18 January 2021 when Dr Kyaw records that Mr Pincham twisted his ankle two days earlier and he complained of pain and swelling in the lateral aspect. It was noted he had moderate swelling and he was working as a tree logger. The doctor recommended a moon boot, prescribed Mobic and requested an X-ray and ultrasound of the right ankle.[32]
[32] AALD-R pp 12-13.
On 21 January 2021 Mr Pincham underwent a right ankle X-ray and ultrasound on the referral from Dr Kyaw. The clinical history on the report is “twisting injury, swelling”. No acute findings were found on either test.[33]
[33] AALD-R p 41.
Mr Pincham’s counsel submitted that if the respondent submitted that any right ankle problem might be due to this twisting incident but that Mr Pincham complained of the ankle being sore in 2015.
However, Mr Pincham does not refer to this twisting incident in his statement. Unfortunately, Dr Patrick does not consider this injury to the right ankle and nor does he refer to the fact that no acute findings were found on the X-ray and ultrasound of the right ankle. I find these omissions by Dr Patrick mean I cannot place reliance on his conclusion that the right ankle/hindfoot symptoms have been caused by altered gait from the right knee injury. Dr Patrick does not actually make a diagnosis of the condition in the right ankle, he just refers to the examination findings relating to range of movement. Therefore, I find an award for the respondent in relation to this allegation.

Left ankle/hindfoot

The only reference to the left ankle is in Dr Chauhan’s records on 24 May 2021 and Dr Kyaw’s record of 15 July 2021. However, the entry on 24 May 2021 states that the left ankle is sore, onset two weeks ago with no known triggers. On examination no major swelling was evident.[34] Dr Kyaw recorded that Mr Pincham had pain in the lateral aspect of his left ankle on and off for six months and he requested a left ankle X-ray and ultrasound.[35] If Mr Pincham went ahead and had these tests the results are not in the records before the Commission.
[34] AALD-R pp125-126.
[35] AALD-R p 12.
Even though Mr Pincham states that he tended to put up with pain and did not attend the doctor with such complaints, the fact is he did complain about his right ankle and left ankle but on none of the consultations did he tell the doctors that his ankles became sore after limping due to the right knee injury. He told Dr Chauhan his right ankle became sore after twisting his ankle and there were no known triggers for the left ankle pain.
Mr Pincham has the onus of proof. He has not mentioned being advised to have an X-ray and ultrasound of the left ankle, and if he did have these tests the reports are not in evidence. I find this is a significant omission in his evidence. I find that Dr Patrick has not adequately considered these clinical records and in his reports he does not actually make a diagnosis of the condition in the left ankle. Therefore, I find an award for the respondent in relation to this allegation.

Lumbar spine

On 24 May 2021 Dr Chauhan recorded that Mr Pincham has had on and off back pain for years and it had recently flared up over the past six months and that he tolerates it and only takes Panadol/ Nurofen Plus if severe. It was noted it was not interfering with his usual activity at this stage. The doctor does not consider the cause of the back pain.
Mr Pincham’s counsel referred to the clinical notes on the MRI scan dated 20 December 2021 of “old injury, chronic back pain…” he submits that this is consistent with what Mr Pincham has stated, that his gait has caused some back problems for him. Counsel also submitted that Mr Pincham gave this history to Dr Herald when he saw him again as related in the report dated 18 October 2022.
Mr Pincham relies on the opinion of Dr Patrick that he has marked muscle guarding and pain in the lumbar spine on examination and he attributes these symptoms to the altered gait of Mr Pincham because of his right knee injury.
The respondent submitted that Mr Pincham has continued to carry out heavy work since the 2013 injury such as a baggage handler with Virgin Airways and Dr Patrick has not considered that. I note Mr Pincham’s solicitor provided the detail of subsequent employment that Mr Pincham has undertaken since his injury as follows:[36]
[36] ARD p 30.
“(a)    2010 to 2014: Burwood RSL – Audio engineer.
(b)    2013 to 2015: Virgin Australia – Baggage handling and ground crew.
(c)    2016: The Trustee for Magiboard Presentations NSW Unit Trust
(d)    2016 to 2017: AV Sales Market – Lighting technician.
(e)    2017: Audio Visual Events – Lighting technician
(f)    2017 to 2018: Grafton Sound and Lighting – Lighting technician.
(g)    2018: Leco Pty Ltd. – Lighting technician.
(h)    2018 to 2020: Prime Audiovisual – Audio engineer.
(i)    2021: Gibraltar Tree Services – Labourer
(j)    2021: Highland Sand and Soil – Labourer
(k)    2022: Tyree Industries – Labourer – electrical
(l)    2022: current: NW Group – Crewing and Logistics Manager; overseeing labour and transport for events, production staff and equipment. The role is deskbound and not labour intensive.”
However, I cannot accept the respondent’s submission about the significance of the heavy work undertaken by Mr Pincham because the respondent does not have medical evidence to support this submission. Dr Hughes has not referred to this employment as a reason for Mr Pincham experiencing symptoms in the contentious body parts, in fact he finds no abnormality in any of them except for degenerative changes to the lumbar spine.
I acknowledge that there is scant evidence about the effect of Mr Pincham’s post 2013 employment. Mr Pincham does not deal with it in his statement. Dr Patrick does refer to some of Mr Pincham’s post-accident employment and does not attribute any of Mr Pincham’s issues to that employment, although it is unclear if he turned his mind to the effects of such employment. However, the central question is whether Mr Pincham has discharged his onus of proof in establishing a causal connection with the right knee injury to the alleged consequential conditions.
His counsel relies on Kooragang Cement Pty Ltd v Bates[37] and submits the test to be applied is one of commonsense and that it is a low bar. I find it this is a trite summary of Kooragang. I do not accept this case suggests the test of causation is a low bar. What is important is whether the evidence in the case supports a finding of a causal connection between the agreed work injury to the right knee and the other so-called consequential conditions. At [463G] in Kooragang it was stated "each case where causation is an issue in a worker's compensation claim, must be determined on its own facts". Kirby P said, “what is required is a commonsense evaluation of the causal chain”. This does not mean a Member can apply her views of commonsense as to the cause of injury, but that she needs to evaluate the evidence.
[37] (1994) 35NSWLR 452, Kooragang.
I have explained why I have found that Dr Patrick’s evidence cannot be accepted in relation to the left and right ankles, because he had not considered relevant medical evidence. This, coupled with the fact that Mr Pincham did not refer to this evidence, has led me to the finding that Mr Pincham has not discharged his onus of proof to establish a causal connection between his right knee injury and the ankle/hindfoot conditions.
However, in relation to the lumbar spine Dr Patrick’s opinion is consistent with the history Mr Pincham gave to Dr Chauhan in May 2021, which was before he saw Dr Patrick. He told Dr Chauhan that his back had been painful for years, on and off, and he tolerates it taking analgesics when needed. Dr Patrick expresses the opinion that his lumbar condition has been a result of his altered gait from the right knee injury. Dr Hughes has found some impairment in the lumbar spine but he says it is degenerative, relying on his thesis that one cannot have a consequential condition due to a right knee injury. I reject Dr Hughes’s thesis because he has not taken into account the fact that Mr Pincham’s knee has not settled and he fails to taken into account Dr Herald’s finding that the ongoing complaints were in the site of the original injury and that the first surgery had not resolved the knee complaints.
Therefore, I accept that Mr Pincham has discharged his onus of proof to establish his accepted right knee injury has caused a consequential lumbar condition. The assessment of permanent impairment flowing from such a condition is a matter for a Medical Assessor.
I do not accept the respondent’s submissions that Dr Patrick is an advocate and that his opinion should be totally disregarded. Nonetheless I have approached his opinion with a degree of caution because, as Dr Herald found, it is difficult to give an opinion about causation of the contested body parts when he had not seen Mr Pincham for nine years and he suggested that the treating general practitioner and other providers records be considered. Dr Patrick is in a similar position coming into the matter so long after the original injury. He is reliant essentially on Mr Pincham’s own history which I find is fairly broad and lacking detail. For instance, Mr Pincham does not relate specific examples when his right knee was symptomatic causing particular issues in these other body parts.

Right hip

In his first report, when describing Mr Pincham’s present symptoms and referring to abnormal gait in point numbered 1 Dr Patrick said Mr Pincham was sparing his right knee but he does not refer to the right hip being affected. In point 3 Dr Patrick just states that “he is aware of some discomfort at the right hip.” Dr Patrick noted Mr Pincham had occasional hip pain but said there is no significant departures in range of active motion. Dr Patrick does not assess permanent impairment for the right hip and in his first report when expressing his conclusion at the top of page 36 of the ARD he does not include the hip.
In his report dated 11 December 2023 Dr Patrick has the history that Mr Pincham has “just occasional hip pain” but he says on examination he has significant limitation in adduction and internal rotation of the hip and assesses permanent impairment of 5% lower extremity impairment (LEI). Dr Patrick had no radiological tests available to him of the hip and I find he has not adequately explained how this hip presentation is caused by the right knee injury. He does not explain this in either report. In the 11 December 2023 at point numbered 5 he does not include the hip in his list of consequential injuries.
Mr Pincham’s solicitors, no doubt aware of these deficiencies, wrote to Dr Patrick and the doctor provided a further report dated 6 June 2024. The doctor repeated a comment in the history from the first report that Mr Pincham was “favouring (sparing) his right lower extremity (has some right hip discomfort-probably some degree of a trochanteric bursitis right hip)”. Dr Patrick later in the June 2024 report then adds the right hip has clearly suffered consequential injury as a result of abnormal gait due to the right knee injury.
Notwithstanding the earlier deficiencies in his reports, Dr Patrick has now given a more complete opinion and it is tolerably clear that Dr Patrick, because of the issues he found on physical examination with adduction and internal rotation of the hip, considers he does have trochanteric bursitis, which can be detected on clinical examination. It would have been helpful to have an ultrasound to confirm the clinical findings. However, I have accepted that Mr Pincham did have altered gait from his right knee injury and he did come to further surgery in 2023. I find taking into account all of this evidence Mr Pincham has established that there is a causal connection between his right knee injury and subsequent altered gait and the right hip condition. The degree of permanent impairment is a matter for a Medical Assessor.

Left knee

It is difficult to determine the cause of the alleged left knee symptoms when there is no reference to any doctor before Dr Patrick in 2021. However, Dr Patrick asserts he found a five degree flexion contracture in the left knee on examination which he attributes to the favouring of the right knee. Dr Hughes found no abnormality on examination. I have not relied on Dr Hughes’s opinion because he proceeded on the basis that the right knee injury had an excellent return to function after the surgery in 2013 which does not accord with Dr Herald’s findings in 2022.
Dr Hughes in his final report refers to the AMA Guides to the Evaluation of Disease and Injury Causation and says there is no evidence in these Guides that injury to one part of the body can result at a later date to a consequential injury to another part of the body. However, these Guides are not those used to assess permanent impairment under the NSW workers compensation legislation. Permanent impairment is assessed using AMA Guides to the Evaluation of Permanent Impairment – 5^th Edition (AMA 5) as modified by SIRA NSW workers compensation guidelines for the evaluation of permanent impairment. Chapter 1.6 of AMA 5 states that the legal standard for causation in workers compensation varies from jurisdiction to jurisdiction. The legal test to be applied is that discussed in Kooragang and cases such as Kumar v Royal Comfort Bedding Pty Ltd[38] and many other cases in the Commission. Therefore, I do not accept the opinion of Dr Hughes.
[38] [2012] NSWWCCPD 8 Kumar.
I accept the opinion of Dr Patrick that the altered gait from the right knee injury has given rise to a consequential condition in the left knee, however the degree of permanent impairment is a matter for a Medical Assessor to determine.
The respondent also submitted that Dr Patrick’s opinions should not be preferred to that of Dr Hughes because Dr Patrick is not an orthopaedic surgeon, unlike Dr Hughes. I have explained why I cannot accept Dr Hughes’s opinions. Even though he is an orthopaedic surgeon I find his opinion is based on an erroneous understanding of the sequelae of Mr Pincham’s right knee injury and he relies upon the wrong test of causation. I find that I should not disregard Dr Patrick’s opinion based on his qualifications, instead I have approached his opinion with a degree of caution and given reasons for those aspects I can accept and those I reject.

SUMMARY

Award for the respondent in relation to allegations of consequential conditions in the right ankle/hindfoot and left ankle/hindfoot.
Award for the applicant in relation to consequential conditions in the lumbar spine, right hip and left knee as a result of the agreed right knee injury on 1 March 2013.
The lump sum claim is referred to the President for referral to a Medical Assessor to assess permanent impairment of the following:
(a)Date of injury:             1 March 2013
(b)Body systems:           right lower extremity (knee and hip) injury, the lumbar
spine, and left lower extremity (knee).
(c)Documents referred:   Application to Resolve a Dispute, Reply, Applications to Admit
Late Documents dated 22, 25 and 30 September 2024.

[2024] NSWPIC 679

6 December 2024