Princehorn v Port Hunter Cranes Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Princehorn v Port Hunter Cranes Pty Ltd [2024] NSWPIC 180
APPLICANT:	Scott Princehorn
RESPONDENT:	Port Hunter Cranes Pty Limited
MEMBER:	Michael Wright
DATE OF DECISION:	10 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed surgery for left ankle; liability dispute for left ankle; factual and medical causation; Kooragang Cement Pty Ltd v Bates referred to; Held – left ankle injury sustained in course of employment; respondent to pay for cost of surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), the applicant sustained injury to his left ankle in the course of his employment with the respondent on 3 August 2018. The applicant’s employment with the respondent was the main contributing factor to the injury to his left ankle on 3 August 2018. 2. The surgery proposed by Dr O’Sullivan, being left ankle fusion and bone graft (the surgery), is reasonably necessary as a result of the injury on 3 August 2018. 3. The respondent is to pay, pursuant to s 60(5) of the 1987 Act, the costs of and incidental to the surgery.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Scott Princehorn (the applicant) claimed proposed medical and treatment expenses in respect of injuries said to have been sustained to his left ankle on 3 August 2018 in the course of his employment with Port Hunter Cranes Pty Limited (the respondent), or in the alternative as a left ankle condition consequential to his lumbar spine injury on 3 August 2018. The applicant claimed for the cost of proposed left ankle fusion and bone graft surgery.
The respondent did not dispute that the applicant sustained injury to his lumbar spine on
3 August 2018. In dispute notices dated 29 November 2022, 8 June 2023 and
9 November 2023 the respondent’s insurer disputed liability in respect of the applicant’s consequential left ankle condition. However, it appeared that a dispute as to a disease injury was also raised.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration of this matter on 29 February 2024, the applicant was represented by Ms Young of counsel, instructed by Mr Lewis solicitor, and the respondent by Mr R Stanton, instructed by Ms Moylan solicitor.

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 and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 22 February 2024 and attached documents.

Oral evidence

There was no oral evidence.

Evidence

Applicant’s statements and recorded medical histories

The applicant in his statement dated 3 August 2018 said that his job as a dogman involved him chaining up timber frames or trusses about 14m in length so that they could be lifted by a crane about 500m to the construction site of a block of units. He said that a load of about
10 to 15 timber trusses was stacked with no space in between, requiring him to drag or move the trusses about 75mm so he could get the chains through the holes. The applicant stated that as he did so he noticed a pulling sensation to the right side of his lower back and he stepped backwards into a pothole with his left leg, losing his footing. He said that he noticed immediate pain in his lower back and “sciatic pain” down his left side into his left leg and into his toes.
He said that he initially did not notice any other symptoms in his left ankle due to the intense sciatic pain radiating into his left leg. He stated that a few weeks after his injury he noticed that he had some problems walking up a hill, particularly with his left leg and ankle. He said that he reported the symptoms to his general practitioner (GP) and to his exercise physiologist, Mr Rees. The applicant said that from his discussions he believed that the symptoms were related to his lower back pain and the radiating pain from his back. He said that he was referred to Dr Ferch, neurosurgeon, Mr Rees, Dr Prickett, specialist pain management physician, and Dr Nicholson, orthopaedic foot and ankle surgeon.
The applicant stated that he underwent lumbar spine L4/5 decompression surgery performed by Dr Ferch on 2 March 2020. He stated that he noticed a decrease in his back pain and he was able to walk more after the surgery. The applicant stated that with reduced symptoms in his back, he increasingly became aware of problems with his left leg and ankle. He stated that he noticed that the pain was there all the time with a constant ache in his left ankle but it was not sciatic pain. He stated that he increasingly noticed difficulties with his left ankle.
The clinical note of Dr Mehta, the applicant’s GP, on 10 August 2018 recorded a history of injury to the low back at work on 3 August 2018 “while walking up the hill felt sharp pain after lifting and bending continuously…still kept working did not go to work on mon then went back on tues/wed/thursd about today severe pain no radiation…” The first express reference to the applicant’s left ankle in the clinical notes was on 13 January 2021 when it was recorded that the applicant had a painful left ankle “swollen tender lat malleola…says had ankle injury with low back…”
Dr Ferch provided a number of reports, including a report dated 20 September 2018. In that report, Dr Ferch recorded a history of employment involving repetitive lifting and a history of injury on 3 August 2018 the applicant was walking up an incline after repetitive lifting when he acutely developed pain radiating across his back in addition to pain into his left leg. On examination Dr Ferch among other things brisk symmetrical reflexes about the knees and ankles.
In his report dated 1 February 2019, Dr Prickett recorded a history of sudden onset of back pain during the applicant’s work as a crane operator on 20 November 2018. There was no controversy that the date recorded by Dr Prickett was an error and in fact referred to the injury of 3 August 2018. Dr Pickett recorded that the applicant had been loading some roof trusses ready to be lifted with his crane and was “walking on uneven ground” and had a sudden onset of back pain. He recorded that the applicant had been more recently describing some occasional radiating left leg pain and associated restless legs but without any strong evidence of radiculopathy. He noted on examination that the applicant’s major pain area was in the lower back with lumbar tenderness it seemed to be exacerbated on lumbar extension, especially on the left-hand side.
In his report dated 21 February 2019, Mr Rees noted a history of sudden onset of lower back pain on 20 November 2018 during normal duties as a mobile crane operator. He also noted that the applicant had reported developing symptoms in the past few months similar to restless legs as well as occasional radiating left leg symptoms and had trialled a variety of pain medications which was said to have only added to the applicant’s psychological distress and did not necessarily reduce symptoms. Mr Rees noted that the applicant reported that his primary limitations to returning to work were his inability to walk on uneven ground or sit/drive for extended periods of time.
In a clinical note dated 21 January 2020, Mr Rees recorded that the applicant’s gate had become antalgic with weight being shifted off the left leg and the applicant displayed “limited dorsi-flexion in the left ankle which does effect gate and ability to move through stairs or crouch position”. He also noted that “limitations in ankle mobility has remained present despite pain and have not responded to conservative approaches. Scott struggles in moving freely to ground levels… Walking uphill or on uneven ground remain notably restricted”.
In the same report, Mr Rees had noted that the applicant had progressed well in relation to self managed physical routines, steady improvement in strength and function, however this did not match the applicant’s current reports of pain. Mr Rees noted that the applicant had advised that in recent weeks he had found his symptoms increasing “mostly throughout his left hip and leg” which the applicant described “as consistent to the symptoms he had experienced prior to the SIJ injections performed in June by Dr Prickett”.
In an X-ray report dated 15 January 2021, Dr Janke recorded a clinical history of “injury 2 years still having pain and swelling”.
In a referral letter to Dr Nicholson dated 9 March 2021, Dr Mehta recorded the history of low back injury in August 2018 and “says his ankle L started to be painful after that and lately has worsened…”
In his report dated 4 May 2022, Dr Nicholson noted that the applicant had come to see him regarding injury to the left ankle that had occurred at work “approximately 2 ½ years ago”. He recorded that the applicant described “dragging some trusses out of the bush when he stepped in a hole and sustained a significant inversion injury to his left ankle. In the fall he also sustained a back injury”. He recorded that this lead the applicant to developing severe sciatic type radicular symptoms with subsequent surgery by Dr Ferch, which had relieved the sciatic symptoms.
Dr Nicholson noted that as the applicant’s neurologic symptoms had improved “his ankle issue has become more obvious. He has significant pain and swelling down the lateral aspect of his left ankle. He is not able to trust the ankle and is unable to mobilise on rough and uneven ground”. He noted on examination that the applicant had “very significant swelling on the lateral aspect of his left ankle. He is tender to palpate behind the lateral malleolus. The swelling in this region is quite boggy. There is also pain over the anterolateral aspect of the ankle”. He was of the opinion that the applicant had significant peroneal tenosynovitis and a tear of the anterior talofibular ligament with injuries to the calcaneofibular ligament.
In his report dated 27 March 2023 to the applicant’s solicitors, Dr O’Sullivan, orthopaedic surgeon, noted that the applicant presented with a stiff and uncomfortable left ankle after suffering a work related injury on 3 August 2018. He recorded a history that the applicant was operating his crane, lifting timber frames at the time “when he leaned out to catch some chains and stepped into a hole. He experienced back pain at the time which was his main concern…” He noted that the lower back injury was the main focus, requiring treatment by
Dr Ferch, Dr Prickett and Mr Rees and consultation with Dr Nicholson. Dr O’Sullivan noted that the main problem that the applicant had with his left ankle was walking up inclines open “where he finds it quite uncomfortable to the point where he walks up backwards". He noted that the applicant had no problems with his left ankle prior to the work related injury on
3 August 2018 and “has had ongoing problems even prior to his spinal surgery in March 2020”.
In his report dated 15 November 2022 to the respondent’s workers compensation insurer,
Dr Riley, orthopaedic surgeon, recorded a history that the applicant suffered a work related injury on 3 August 2018 when “he was walking on uneven ground, when he tried in a pothole, and injured his left ankle and lower back”. Dr Riley noted lumbar pain with subsequent treatment, including surgery by Dr Ferch on 2 March 2020 involving a left sided ill 4/5 decompression. He noted that after the lumbar surgery and resolution of the left leg sciatica, the applicant became progressively aware of issues with his left ankle. Dr Riley also noted that the applicant said that the ankle injury occurred on 3 August 2018 and he had mentioned it to Dr Mehta, but it had not been placed in the details on the workers compensation certificates of capacity. Dr Riley also noted that the applicant said that in the early stages following the injury most of his symptoms were related to his lumbar spine and sciatica.

Medical assessment and opinion

The opinions and diagnoses of Dr Nicholson, Dr O’Sullivan and Dr Riley will be discussed below.

Reasons

In summary, the respondent submitted the treating medical histories noted above did not record a history of stepping into a pothole nor of injury to the left ankle, and that the histories of Dr Mehta, Dr Ferch and Dr Prickett were consistent in recording a history of injury to the back and not recording a history of stepping into a pothole or of injury to the left ankle, and that these histories were tolerably consistent with each other. It was submitted that these histories raised doubts about the applicant’s statement about stepping into a pothole and injuring his left ankle and therefore on the balance of probabilities his evidence in this regard should not be accepted. It was submitted that the opinion of Dr Riley was significant in this regard in that it was his view that if the applicant had sustained injury to his left ankle on
3 August 2018 then signs and symptoms such as swelling should have been evident for a significant injury, in his view, and that such swelling and symptoms had not been recorded at that time.
I do not accept the respondent’s submissions in this regard. In my view the treating medical evidence indicates that the applicant sustained a significant back injury on 3 August 2018, following which he suffered significant pain and distress with extensive pain management consultations with Dr Pickett throughout 2019 and 2020, and indeed culminating in the applicant undergoing decompression surgery to his lumbar spine by Dr Ferch in March 2020. This, in my view, is a significant supporting background for the applicant’s evidence that it was the treatment of his back that was the focus in respect of his pain throughout that period. The reports of Dr Prickett and Mr Rees were significant in this regard.
In relation to the GP clinical notes, with due respect to the GP, in my view the notes were brief and were at best a short summary of the applicant’s consultations. In my view the GP clinical notes should be viewed with caution and the decision in Mason v Demasi[1] is of particular relevance in these circumstances. The applicant said that he did tell Dr Mehta that he had injured his left ankle at the time of the incident on 3 August 2018. I accept the applicant’s evidence and submissions in this regard.
[1] [2009] NSWCA 227.
Similarly, in my view the history recorded by Dr Ferch was a history taken in respect of a referral to a neurosurgeon with respect to significant back pain, which was noted by Dr Ferch as being reported by the applicant as 9/10. This history was also brief, although relevant to the matter in hand for Dr Ferch. Again, the caution urged by the decision in Mason v Demasi in my view should be applied here and I accept the applicant’s submissions in this regard.
In relation to Dr Prickett, although he did not record a history of left ankle pain, he did record a history that the applicant was “walking on uneven ground” at the time of injury. The applicant’s description was that he stepped into a “pothole”. In my view the description recorded by Dr Prickett was not inconsistent with the applicant’s description that he stepped into a pothole.
The size and extent of the “pothole” were not described in the evidence before me. However, in my view both descriptions were of sufficient similarity to be accepted as referring to the same thing, that is a deficiency in the surface upon which the applicant walked or stepped. Although the applicant may have referred to the term “pothole” in less than a definitive sense, I note that the definition of a “pothole” relevantly refers to a hole in the surface of a road, and does not include size or depth or other descriptor in that definition.[2] I do not accept the respondent’s submissions in this regard. In my view the history recorded by Dr Prickett provides support for the applicant’s evidence that he stepped into a pothole on
[2] Macquarie Dictionary, Eighth Edition, 2020.
3 August 2018. The report of Dr Prickett which recorded this history was made within six months of the date of injury, in the context of the pain and psychological distress in relation to the applicant’s back that was recorded by Dr Prickett, which I have noted above. Although it is the case that this was not a concurrent report, or a report closer to the time of the subject incident, it was in my view sufficiently close to the time of the incident in circumstances of a focus of treatment on the applicant’s back. Indeed the circumstances of this delay was accepted as plausible by Dr Nicholson and Dr O’Sullivan.
I find that the applicant stepped into a pothole at the time of his injury on 3 August 2018.
In relation to complaint of left ankle symptoms or pain, in my view the reports of Mr Rees are of assistance. In his initial treating report of 21 February 2019, Mr Rees did not refer to left ankle symptoms, although he did note a primary limitation in returning to work as an inability to walk on uneven ground. This was in the context of a record of back symptoms in that report, although in my view the particular history of walking on uneven ground in that report becomes significant having regard to the later report of Mr Rees, which was also noted above.
In particular, in his report of 21 January 2020 it was noted that there were specific restrictions in left ankle movement, mobility and ability to move and Mr Rees noted in that context of left ankle restrictions that walking uphill or on uneven ground “remain[ed] notably restricted”. Further, Mr Rees in the same report also noted an increase in recent weeks of symptoms mostly throughout the left hip and leg, consistent with symptoms experienced prior to injections in June 2019 by Dr Prickett.
Although of course this was prior to the lumbar spine surgery in March 2020, nevertheless this is also a history of left ankle restrictions and pain. In my view, this history was also consistent with a history of left ankle pain described by the applicant prior to June 2019. This in my view provides support to the applicant’s evidence that he sustained injury on
3 August 2018 to his left ankle. I have accepted the applicant’s evidence that he did tell his GP and Mr Rees about his problems with his left ankle within a few weeks of the injury on
3 August 2018. I find that the applicant sustained injury to his left ankle on 3 August 2018.
I therefore accept the histories recorded by Dr Nicholson and Dr O’Sullivan as being substantially correct.
The respondent also submitted that the opinion of Dr Riley should be accepted with respect to his view that the applicant had sustained a high-grade ligamentous injury to the left ankle at sometime in the past, which was always associated with significant swelling and bruising and pain and a concurrent injury to the left ankle on 3 August 2018 would have been readily identifiable several days after, and therefore there had been an undocumented significant injury to the left ankle ligaments at some time prior to 3 August 2018.
I do not accept the respondent’s submissions in this regard. First, I have accepted the applicant’s evidence and in particular I accept his evidence that he had sustained no prior injury to his left ankle. Dr Nicholson and Dr O’Sullivan both accepted the applicant’s history that he had sustained no prior injury to his left ankle in reaching their diagnoses. Second, both Dr O’Sullivan and Dr Nicholson diagnosed osteoarthritic degenerative change in the left ankle. Dr Riley also diagnosed such change, but also diagnosed high-grade ligament injury, as noted above. However, Dr O’Sullivan, with whom Dr Nicholson agreed, diagnosed degenerative changes of the ligaments about the ankle. Dr Nicholson, in diagnosing tears and injuries to the ligaments of the left ankle, agreed with Dr O’Sullivan, and also observed that the remote injuries to several ligaments around the ankle were often seen in association with severe arthritis. Both Dr Nicholson and Dr O’Sullivan accepted the applicant’s history that he had no problem with his left ankle prior to 3 August 2018 in reaching their diagnoses and conclusions. I prefer the opinions of Dr Nicholson and Dr O’Sullivan to that of Dr Riley.

Dr Nicholson was also the view that it was “entirely possible” that the applicant’s severe back pain was a “distracting injury and considered much more significant” than the left ankle injury of the same date. Dr O’Sullivan thought that the spinal injury had overshadowed the left ankle injury. I accept these opinions. In my view, the applicant’s left ankle symptoms were overshadowed or distracted by the lumbar spine injury which caused significant distress and required pain management and surgical treatment. Further, I accept the applicant’s explanation that he informed his GP and Mr Rees of his left ankle injury in the weeks following the incident of 3 August 2018. In my view, having regard to the reports of Mr Rees, it is plausible that the applicant told him of left ankle symptoms and injury.
I accept the opinion of Dr O’Sullivan, and that of Dr Nicholson, that the injury of
3 August 2018 aggravated the pre-existing degenerative osteoarthritis of the applicant’s left ankle and that such aggravation continues. I also accept the opinions of Dr O’Sullivan and
[3] (1994) 35 NSWLR 452
Dr Nicholson that the applicant’s employment was the main contributing factor to the aggravation of the pre-existing osteoarthritis of his left ankle. In my view, adopting a common sense view of the chain or circumstances of causation in the manner indicated by Kooragang Cement Pty Ltd v Bates[3], the applicant sustained injury to his left ankle on 3 August 2018.
The applicant’s case was conducted on the basis of a claim for injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. In my view, this was appropriate, although the matter may alternatively have been conducted pursuant to s 4(a).
The applicant also claimed in respect of a left ankle condition consequential to the injury to his lumbar spine on 3 August 2018. It is not necessary for me to determine that issue.
There was no dispute as to the reasonable necessity of the proposed left ankle fusion and bone graft. Both Dr Sullivan and Dr Nicholson were of the opinion that the left ankle fusion is appropriate surgery for the applicant. Dr Riley did not disagree.

[2024] NSWPIC 180

10 April 2024