Rahman v Jewel of India Admin Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Rahman v Jewel of India Admin Pty Ltd [2022] NSWPIC 535
APPLICANT:	Mohammed Shafiqur Rahman
RESPONDENT:	Jewel of India Admin Pty Ltd
Member:	Michael Wright
DATE OF DECISION:	27 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of undisputed injury to left foot and ankle and disputed complex regional pain syndrome (CRPS) left leg injury and disputed consequential lumbar spine and right foot and ankle conditions; consideration of Paric v John Holland (Constructions) Pty Ltd, Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates; Held – applicant suffered CRPS left leg injury and consequential lumbar spine and right foot and ankle conditions as a result of subject work injury; matter remitted to President for referral to MA for assessment of degree of permanent impairment.
determinations made:	1. The applicant suffered left foot, ankle and leg complex regional pain syndrome (CRPS) injury as a result of injury on 30 November 2018 in the course of his employment with the respondent. 2. The applicant suffered consequential right foot and ankle condition as a result of injury on 30 November 2018. 3. The applicant suffered consequential lumbar spine condition as a result of injury on 30 November 2018. 4. Matter remitted to the President for referral to a Medical Assessor (MA) for the assessment of the degree of permanent impairment in respect of the left lower extremity (CRPS of the left leg, ankle and foot, and also injury to the left ankle and left foot), right lower extremity (consequential right foot and ankle condition), and lumbar spine (consequential lumbar spine condition), as a result of injury on 30 November 2018. Brief to the MA to include the Application to Resolve a Dispute and attached documents, the Reply and attached documents, and the Application to Admit Late Documents dated 19 August 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an application by Mohammed Shafiqur Rahman (the applicant) for lump sum compensation for injury on 30 November 2018 in the course of his employment with Jewel of India Admin Pty Ltd (the respondent). Lump sum compensation was claimed in respect of injury to the left foot, ankle and leg, complex regional pain syndrome (CRPS) injury of the left foot, ankle and leg, and consequential right foot and ankle and lumbar spine conditions.
The respondent did not dispute liability for injury to the left foot and ankle on 13 November 2018. However, in s 78 notices dated 18 December 2020 and 3 February 2022 the respondent disputed liability for the CRPS left leg, foot and ankle injury and the consequential lumbar spine and right foot and ankle conditions.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

In the conciliation/arbitration hearing on 24 August 2022, the applicant was represented by Mr Young of counsel, instructed by Mr Gabriel solicitor, and the respondent by Mr Grimes of counsel, instructed by Ms Whiting, solicitor.
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 to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 19 August 2022 and attached documents.

Oral evidence

There was no oral evidence.

The applicant’s statement

The applicant provided a statement dated 2 May 2022. He stated that he was born in Bangladesh and came to Australia in 2002.
The applicant stated that on 13 November 2018 in the course of his employment he was trying to access a pallet containing products by operating a pallet jack. He stated that the pallet jack suddenly moved backwards and crushed his left leg between the pallet jack and the wall. He said that he sustained a swollen left leg and consulted his general practitioner (GP) at the Minto Medical Centre, where X-rays were arranged and he was prescribed with pain medication. Thereafter he underwent a CT scan and was referred to a specialist, Dr O’Carrigan. He also underwent physiotherapy.
The applicant stated that about 1.5 to 2 weeks after the accident he experienced pain and swelling in his right foot which he said he was told was due to “body balance issues as all of my weight was being sustained on my right foot”. He stated that “due to increased vascularity” he was referred by Dr O’Carrigan to Dr Crozier, vascular surgeon, and the applicant said was of the opinion that the “vascularity” was not related to the injury.
The applicant said that he returned to work and on his first day back, on a date not specified, he fell during the course of his work, which he said was “due to swelling in my feet and an inability to stand”. The applicant stated that he returned to the Minto Medical Centre and consulted Dr Hussain, who told the applicant to consult with him at the Macquarie Fields Medical Centre, which he did thereafter. Dr Hussain referred the applicant to Dr Manohar, pain specialist.
The applicant stated that both of his feet are significantly swollen and discoloured, and he was taking medication, being Endep, Lyrica and Targin in respect of his injuries. He stated that Dr Manohar had proposed surgery which was not approved by the insurer.
The applicant stated that in April 2020 he was referred to a podiatrist, Dr Parasher for treatment. He said that he continued to consult with Dr Parasher for treatment. He also stated that at the insurer’s request he consulted a new pain management specialist, Dr Dabosararky.
He stated that he had not worked since September 2019 and he had been unable to drive due to the medication that he was taking and the difficulties that he experienced in moving his feet.
The applicant stated that “the symptoms in my lower back worsened due to the altered gait due to the injury to my left foot/ankle”. He said that he experienced numbness in his left leg as well as pins and needles and he also said the pain radiated into his lower back.
He said that due to experiencing disturbed sleep and depression he was referred to a psychologist, Ms Parasher, whom he has been consulting for treatment. He said there was also referred to a psychiatrist, Dr Nepal, whom he consults from time to time.
The applicant also said that due to the weakness in his legs he had falls on 16 November 2020, when he sustained a cut above his right eye which subsequently resolved, and also in late 2020. The applicant did not outline any other outcome, other than a recommendation by his doctor to undergo a scan.

Dr O’Carrigan

Dr O’Carrigan, orthopaedic surgeon, provided a treating report dated 8 April 2019 and a referral letter dated 30 April 2019.
In his report dated 8 April 2019, Dr O’Carrigan noted a history of injury on 13 November 2018 when the applicant was using an electric forklift, which he backed up and his left foot was crushed between the back of the pallet jack and the wall and, in trying to extricate himself, the pallet jack backed onto his foot again. He recorded that the applicant had been back at work, which he was able to handle quite well sometimes, and at other times not, with intermittent significant left foot pain and swelling, with radiation of pain on the left side. Dr O’Carrigan also noted that the applicant also had some dorsal foot pain and on the right side he had some pain around the first and second metatarsal because he was putting a lot of weight on the right side.
On examination, Dr O’Carrigan noted significant varicose veins in both legs, and the
swelling was not particularly evident with range of motion close to normal on both sides. Dr O’Carrigan noted tenderness over the ankle joint, tenderness around the left midfoot, particularly the second and third metatarsal bases and, on the right side, tenderness around the first and second MTP joints with no swelling or other clinical abnormality. He noted plain X-rays were normal on both sides and CT scan of the left foot was normal with no fracture. He recommended an MRI scan of both feet. He stated “crush injuries, in my experience, are very slow to recover but I will review him with the MRI scans”.
In his referral letter dated 30 April 2019 to Dr Crozier, Dr O’Carrigan noted the crush injury to the applicant’s left foot six months previously and stated “he has ongoing pain issues in both legs and there are significant varicose veins on both sides that I think could be contributing to the swelling and discomfort”.

Dr Crozier

Dr Crozier, vascular and endovascular surgeon, provided a treatment report to Dr O’Carrigan dated 11 June 2019.
Dr Crozier recorded that the applicant was concerned with the prominence of veins of both calves and swelling of the right calf and foot particularly by the evening. Dr Crozier noted a history of an incident where there was injury to the medial aspect of the left foot beneath an electrically operated forklift with the pallet exerting blunt force injury on the foot which was protected in steel capped work boots. Dr Crozier recorded that moderate swelling was apparent shortly after the injury and the applicant favoured using his left leg subsequently. Dr Crozier noted that the applicant had become aware of prominent veins on the medial aspect of both calves and a tendency for the right leg now to be a little more swollen than the left, particularly by the end of the day.
Dr Crozier was of the view that the applicant could reasonably return to full active duties. He did not believe that there was a relationship between the soft tissue injury to the left foot and the varicose veins, which he suspected were pre-existing.

Dr Manohar

Dr Manohar, consultant physician, musculoskeletal and spine medicine, interventional pain medicine, provided treating reports to Dr Hossain including reports dated 23 September 2019 and 6 January 2020.
In his report dated 23 September 2019, Dr Manohar recorded a history that on 30 November 2018 the applicant was driving a forklift which hit him on his foot and he sustained a crush injury to the left foot. He recorded that “over the years due to abnormal weight-bearing on the right leg, he has sustained pain in both legs. The pain commences in the feet and extends up both legs to the thighs”. He noted that the applicant had been referred to Dr Crozier for his varicose veins and that Dr Crozier had stated that the varicose veins did not have a relationship to the employment.
On examination, Dr Manohar noted pain with restriction of ankle and inter-tarsal movement. Dr Manohar noted that the applicant showed him photographs of colour changes and swelling of the feet.
Dr Manohar diagnosed “sympathetically mediated pain with features consistent with CRPS Type 1”.
In his report dated 6 January 2020, Dr Manohar stated that the applicant “has CRPS type 1 and I have recommended a sympathetic blockade and a perineural blockade to help him with his pain”. He recorded that medication was causing the applicant drowsiness and dizziness and the applicant was hence unable to work. He recommended a neural blockade to decrease the pharmacological agents which were causing severe side-effects.

Dr Parasher

Dr Parasher, podiatrist, provided reports dated 14 April 2020 and 21 May 2020.
In his report dated 14 April 2020, Dr Parasher recorded a history that the applicant sustained injury while using a pallet jack which malfunctioned causing injury to the applicant’s left leg which was later found to be extensively damaged. He recorded that after a few days off work, the applicant attempted to continue to work and swelling started to occur with increased pain as time went by. Dr Parasher noted that the applicant “began feeling deep nerve style pain throughout his left side, lower back which then felt as though his left limb was paralysed following this few week period”. Dr Parasher also noted that as a result “of the severe injury, lack of movement and pain he was sustaining through his left lower limb he then began to compensate throughout his right lower limb”. He noted that the applicant was “walking with severe compensation and increased load throughout his right lower side” and a weight balance examination “revealed 90% of his weight-bearing capacity and ambulation forces were now being transferred throughout his right lower limb alone”.
Dr Parasher noted a history treatment by Dr Manohar and Dr O’Carrigan. He noted treatment by Dr Manohar for a nerve block and possible ablation “throughout his lower spine due to the pain” and treatment by Dr O’Carrigan in which it was noted that there was “increased compensation throughout his left lower limb which was therefore causing pain through now his bilateral lower limbs due to the original left lower limb injury”. Dr Parasher noted that the applicant was “deemed to be suffering from incidences of CRPS throughout his left lower limb in particular syndrome type 1”. He noted that the applicant’s right lower limb had continued to degenerate, causing increased pain. Dr Parasher recorded that “at this stage, his right lower limb has been neglected in the process of his left lower limb injury”. He recommended further investigation and addressing the applicant’s “right lower limb compensation as this is his only lower limb not suffering from severe nerve damage”, in relation to “bilateral lower limb compensation due to the chronic CRPS he suffers throughout his left lower limb”.
In his report dated 21 May 2020, Dr Parasher stated that it was “evident that Mohammed since his injury has been suffering from right lower limb compensation which is now causing increased degeneration through his right lower limb joints and soft tissue structures”. Dr Parasher noted that the CRPS in the left lower limb was not occurring in the right lower limb and indicated “an inflammatory response increased throughout his right lower limb due to the level of deformity, compensation, increase weight-bearing capacity, ground reaction forces and increased load when weight-bearing”. He stated that “it is evident that due to the lack of function and inability to use his left lower limb, he is compensating and causing increased pressure, deformity and soft tissue degeneration through his right lower limb”.

Dr Hardy

Dr Hardy, with qualifications including addiction medicine, dual diagnosis and acquired
brain injury, provided a medico-legal report to the workers compensation insurer dated 7 November 2019 and a supplementary report dated 30 April 2020.
In his report dated 7 November 2019, Dr Hardy noted the history of injury, results of investigations and treatment and opinions of and by Dr O’Carrigan, Dr Crozier and Dr Manohar. Dr Hardy recorded that the applicant said that previously he had a sore back at the time of the injury and his back pain had resolved. Dr Hardy also recorded that the applicant said that bending his trunk was a problem during his back pain but that had resolved. He took a history of the applicant taking the weight off his left forefoot with certain activities and other restrictions in functional activity.
On examination, Dr Hardy noted mild allodynia to the outer aspect of the left sole. He recorded that “there was a slight pallor and cool temperature of the left foot when compared to the right foot. There was increased perspiration on the dorsum of the left foot when compared to the right foot”.
Dr Hardy diagnosed a chronic pain syndrome of the left foot as a result of the crush injury on 30 November 2018. He also stated that the applicant “has symptoms and signs which may be consistent with a very mild variant of CRPS type I”, although there were “several other equally plausible differential diagnoses, which could account for the signs seen at examination today, namely the presence of bilateral varicose veins in his lower limbs”.
Dr Hardy was of the opinion that the chronic pain syndrome of the left foot was work-related, but “the pain of the rest of his left leg and the right leg appears to be due to the presence of bilateral varicose veins, and this is a non-compensable cause”. He stated that the reasons were that reported colour changes were present bilaterally, there were bilateral varicose veins in the presence of the varicose veins and the incidence of pain extending beyond both feet was consistent with the formation of the veins.
In his supplementary report dated 30 April 2020, Dr Hardy was asked to comment on the report and opinion of Dr Parasher. Dr Hardy did not agree with the assessment and opinion of Dr Parasher. Dr Hardy stated that “there is no compelling scientific evidence in support of compensatory or ‘favouring’ injury in the contralateral limb”. He disagreed that the applicant’s “right foot symptoms could be explained by the reported ‘overcompensation’ as a result of the type 1 CRPS of the right [sic] leg. This is not supported by the scientific literature, nor my personal clinical experience.”

Dr Dias

Dr Dias, occupational physician, provided a medico-legal report to the applicant’s solicitors dated 30 March 2021.
Dr Dias recorded a history of injury to the applicant’s left foot and ankle on 30 November 2018. He also noted a history of treatment and diagnosis by Dr Manohar of CRPS type I, ankle and leg region and also the development of symptoms of pain and discomfort affecting the right ankle, right hind foot and right midfoot “due to overcompensation for his left foot and ankle condition, within approximately 2 to 3 months of the subject accident”, with continuation of such symptoms. Dr Dias also recorded that the applicant “suffered with lower back pain, stiffness and discomfort due to altered gait mechanics since around May 2019”.
On examination, Dr Diaz noted restrictions in movement of the lumbar spine. On neurological examination, Dr Dias noted patchy loss of sensation to light touch, coupled with Caledonia and hyperalgesia over the undersurface and soul of the left foot and over the dorsum of the left foot and aspects of the left ankle and posterior left calf. Dr Dias was of the view that this appeared to conform to sensory changes consistent with complex regional pain syndrome type I with the visual appearance of the applicant’s left leg, ankle and foot. Dr Dias noted the presence of prominent varicose veins on both legs.
Dr Dias was of the opinion that the applicant “suffers from chronic complex regional I, affecting his left foot, ankle and leg, secondary to an acute crush injury of affecting the left midfoot/hind foot, which occurred on 30 November 2018”. He was of the opinion that the applicant continued to suffer from symptomatology and signs consistent with CRPS type 1 affecting the left foot, ankle and leg regions. It was also of the opinion that the applicant suffers from “chronic consequential right ankle/hind foot pain, stiffness and discomfort, secondary to prolonged overcompensation for altered gait mechanics as a result of his above-mentioned left foot/ankle injury”. He noted the symptomatology began to develop in early 2019 and the applicant has continued to suffer with it in his right ankle and hind foot region. Dr Dias was also of the opinion that the applicant suffered with “chronic non-specific lumbar spine pain, stiffness and discomfort, secondary to prolonged altered gait mechanics as a result of his above-mentioned left foot/ankle injury”. He noted that the applicant’s lumbar spine condition began to manifest in about May 2019 and he has continued to suffer ongoing symptoms since then.

Dr Wallace

Dr Wallace, orthopaedic surgeon, provided a medico-legal report, in three separate parts, to the respondent’s solicitors, each dated 13 December 2021.
Dr Wallace noted the history of injury to the applicant’s left foot on 30 November 2018. He also noted a history of treatment by the applicant’s GP, Dr O’Carrigan and Dr Manohar and a podiatrist. Dr Wallace also recorded that one month after the injury on 30 November 2018 the applicant “noted the onset of pain at his lumbar spine and right foot” and had not undergone treatment for those conditions.
On examination, Dr Wallace recorded that the applicant walked slowly with a short step and bilateral antalgic gait. He noted complaint of tenderness and restriction of movement of the lumbar spine. Dr Wallace noted no tenderness and some swelling of the left foot and ankle and tenderness globally about the right ankle and foot and no swelling.
Dr Wallace diagnosed a crush injury of the left foot that was now resolved and also a bone contusion of the cuboid and calcaneum of the left foot which was also now resolved. Dr Wallace was of the opinion that the crush injury to the left foot on 30 November 2018 would have resolved within six months of the incident with subsequent MRI showing no significant abnormality apart from the bone contusions which subsequently resolved. He was of the opinion that there was no objective medical evidence that the applicant suffered any work-related injury to the lumbar spine or right ankle. He was of the view that that “there is no medical evidence to support the notion that an injury to one lower limb can cause an ‘overcompensation injury’ at the opposite lower limb”. He was also of the opinion that there was no evidence of CRPS on clinical examination at the time of the review on 7 December 2021, and the applicant did not fit the criteria for a diagnosis. Dr Wallace stated that the applicant had not suffered consequential conditions at his lumbar spine or right ankle or foot resulting from the left foot injury. Dr Wallace was of the opinion that the applicant’s current complaints of ongoing pain and bilateral foot symptoms are due to pre-existing venous insufficiency at his lower limbs, which are constitutional in origin and unrelated to employment.

A/Prof Myers

A/Prof Myers, consultant general surgeon, provided a medico-legal report to the respondent’s solicitors dated 28 March 2022.
A/Prof Myers noted that he questioned the applicant with regard to the injury and varicose veins. He noted the history of injury to the applicant’s left foot. A/Prof Myers recorded that the applicant “tells me that he first noticed varicose veins within one month of this accident. He said they increased and get worse each day”. He noted the treatment provided by Dr Crozier.
A/Prof Myers noted the history of restrictions of activities and of swelling and pain in both feet. He noted that the applicant felt that his right foot has overcompensated and he therefore also has significant symptoms on the right side, which began about a month after the subject injury.
On examination, A/Prof Myers noted and diagnosed primary varicose veins in both legs, equally on both sides. He was of the opinion that the varicose veins were constitutional in origin, arising because of incompetence of the valves and the veins at the sapheno-femoral junctions in the groin. He was of the opinion that the primary varicose veins were completely unrelated to any crush injury on 30 November 2018.
A/Prof Myers was also of the opinion that “I know of no significant body of evidence that would be consistent with overcompensation issues with the contralateral limb”. He also stated “equally today, although I have not specifically addressed that in my report otherwise, I can see no evidence of Mr Rahman having any form of CRPS”. A/Prof Myers noted the normal examination in respect of the lower limbs colour and no evidence of sensory impairment in the lower limbs or feet and there was no other criteria that might be used to diagnose CRPS.

Clinical notes

Clinical notes were provided by the applicant’s treating GPs at the Mac-Field Medical Practice, Dr Hossain, and the Minto Mediclinic, relevantly Dr Shrivastav.
In an entry dated 11 September 2018, Dr Shrivastav recorded a history of “injury to the [right] lower leg with electric parlor jack on the 05/09/18… x-ray done the day later – was normal… Swelling decreased… Pain still present on touch, pressure and then on long walking or standing or driving” and “unable to go to work as the pain becoming worst on standing [and] his work requires a lot of standing”. On examination it was noted that the right leg was “not red, not swollen, not hot… Able to bear weight”. Management was recorded as “rest… Analgesic… Heat pack”. An entry dated 12 September 2018 noted pain was still present on walking or standing for long periods and there were similar observations on examination. There is no further reference to right lower leg symptoms until the entries noted below.
In respect of the right foot and leg, an entry on 12 January 2019 noted that “gait still not normal”. On 6 February 2019 it was noted that pain had increased with pain more in the calf of the left leg and there was also right foot pain and swelling and “pain likely due to putting more pressure on the opposite leg and on the calf due to the foot injury”. On 15 May 2019 it was noted “pain in the [right] leg – more lately”. On 19 June 2019 Dr Shrivastav recorded pain in the right ankle and the left foot and the applicant was unable to go to work. Previous entries on 12 June 2019 and 17 June 2019 had referred to “ankle pain”.
In respect of the lumbar spine, Dr Shrivastav noted on 19 May 2019 “lower back pain started 2 days back” and “back pain started after he had to carry multiple bags of carrot [from] the ground and put it on the bin which is on the chest level…he did this job for 2 hr with 5 min break in between”. On 21 May 2019 it was noted that lower back pain was improving and there was no radiation to the legs. On 28 May 2019 it was noted that back pain was “improving with exercise”. On 4 June 2019 it was noted that lower back pain was getting better with mild right sided pain still present. There was no mention of back pain in the next entry of 7 June 2019, and no further mention of back pain until an entry of 1 May 2020, when Dr Hossain recorded “ongoing pain [left] foot and right foot… Also getting problem with lower [back]”.
In a Certificate of Capacity dated 4 June 2019, Dr Shrivastav recorded a left foot injury on 30 November 2018 and back pain on 17 May 2019. Unfortunately, the copy of this document is of poor quality and difficult to read, although it would appear to note back pain on 17 May 2019 after carrying containers of carrots from the ground to the machine at chest height.

Investigations

An ultrasound of both feet report dated 14 February 2019 noted the clinical history of pain and swelling of the right foot and concluded no joint effusion was demonstrated and tendons appeared within normal limits. An X-ray of the right ankle and foot report of the same date concluded normal right ankle and foot.
An MRI of both feet and of the left ankle report dated 9 April 2019 noted with respect to the right foot that there was minor subcutaneous oedema in the dorsal foot and minor degeneration in the first MTP joint, no acute bony injury and suggestion of varicose veins in the foot. In respect of the left foot noted were an ill-defined marrow oedema and resolving contusions and suggestion of varicose veins in the foot.
A bone scan and SPECT/CT report dated 10 September 2019 noted a history of painful left ankle and foot with history of injury and swelling and concluded no evidence of stress fracture and the left foot, mild arthritis in the left subtalar joint and mild focal uptake in the right middle malleolus consistent with previous injury.
An MRI of the right ankle report dated 7 April 2020 noted a history of generalised ankle and foot pain and concluded that it was a normal study and there were prominent varicosities with no secondary evidence of entrapment neuropathy.

FINDINGS AND REASONS

The respondent submitted that the applicant’s credit was in issue in not disclosing an injury prior to 30 November 2018 and in not disclosing injury on 17 May 2019.
I do not accept these submissions. In my view, the context of this matter does not support a finding against the applicant’s credit. Following the undisputed injury to the applicant’s left foot and ankle on 30 November 2018, the applicant underwent a lengthy period of complex symptoms and treatment in and for both feet and legs and the lower back and also psychiatric treatment. Dr Hardy, who did not challenge his consistency, noted the development and treatment of and for depression following the subject injury. This history was also noted by Dr Dias. A/Prof Myers thought he was a difficult historian, and he was not sure whether this was related to the applicant’s English skills or whether there was some confusion between his examination for vascular issues and his other issues.
The incident in relation to the applicant’s right foot in September 2018, as noted in the clinical records referred to above, resulted in an X-ray, rest, analgesic and a heat pack, two consultations with the GP and no further reference to the right foot and ankle until the later records noted above.
The incident in relation to the applicant’s back May 2019 resulted in symptomatic treatment with analgesics and mild stretching exercises. There was a record of improvement, with mild symptoms recorded by 4 June 2019, and no further GP treatment consultation for back symptoms until May 2020. Notwithstanding a recommendation for treatment by Dr Manohar in September 2019 for back symptoms in respect of an unspecified history, the applicant did not undergo such treatment at that time. It seems to me that the brief history recorded by Dr Hardy in this regard, although somewhat ambiguous, that is that the applicant had a sore back “at the time of the injury” and could lift 7 to 8kg and bending his trunk was a problem during his back pain but that it had since resolved, provided support for the premise, which I accept, that by November 2019 the applicant’s back pain had resolved. This is a matter which on balance does not impeach the applicant’s credit, to the extent that the incident in May 2019 was both limited in nature and duration. At the same time, the histories recorded by the medical experts in this regard should be considered having regard to the documentary evidence, as well as the applicant’s history and statement, noting the applicant’s difficulty with the history.
In relation to the CRPS condition, while it is true that Dr Manohar did not provide a lengthy discussion of his reasoning process in respect of his diagnosis, he did note examination findings of pain with restriction of ankle and intertarsal movement and photographs of colour changes and swelling of the feet. Dr Manohar’s reports were brief treating reports to the GP which in my view did reveal a short reasoning process pointing to his diagnosis. In this regard, his report should be viewed in the context of the clinical findings on examination made by Dr Hardy and Dr Dias.
Dr Hardy recorded findings on examination which were relevantly similar to those found by Dr Dias. Both found allodynia in the left foot, slight pallor and cool temperature of the left foot compared to the right foot and Dr Hardy found increased perspiration on the left foot compared to the right foot. These findings supported the brief reasoning and diagnosis made by Dr Manohar, although Dr Hardy was of the opinion that the preferred differential diagnosis was varicose veins.
Dr Hardy explained his view that the “equally plausible differential” diagnosis which could account for the signs on examination was the presence of bilateral varicose veins accounting for colour and temperature changes in the applicant’s feet due to venous insufficiency. However, he did not account for the presence of increased perspiration in the left foot compared to the right foot, nor did he explain why it was that he found slight pallor and cool temperature of the left foot when compared to the right foot in terms of the preferred differential diagnosis. That is, he argued that the bilateral varicose veins accounted for the colour and temperature changes in both the applicant’s feet due to venous insufficiency, when his findings on examination were of slight pallor and cool temperature of the left foot when compared to the right foot and increased perspiration of the left foot when compared to the right foot. This is a significant issue when it is considered that Dr Hardy distinguished and divided the applicant’s symptoms between a chronic pain syndrome of the left foot resulting from the crush injury on 30 November 2018, presumably related to the mild allodynia, and an unrelated differential diagnosis of bilateral varicose veins, accounting for the other symptoms noted above.
In my view, it is for these reasons that the opinion of Dr Dias in relation to CRPS is to be preferred. That is, his diagnosis and reasoning accounts for all of the symptoms noted above, and in particular findings in relation to the left foot when compared to the right foot.
On the other hand, both Dr Wallace and A/Prof Myers made no such findings on examination in relation to the findings noted by Dr Dias and Dr Hardy relating to CRPS. Having regard to the findings on examination made by Dr Dias and Dr Hardy, with particular reference to the consultations and diagnosis made by the treating pain management specialist, Dr Manohar, I prefer the findings on examination made by Dr Dias and Dr Hardy, notwithstanding the competing differential diagnosis made by Dr Hardy, which I have not preferred, above. Further, Dr Wallace in my view did not explain how and why it was that the effects of injury on 30 November 2018 had ceased, and that the same and continuing symptoms were due to an unrelated varicose veins condition.
Dr Dias was of the opinion that, having regard to the frank workplace accident on 30 November 2018, the onset of the CRPS of the applicant’s left leg some two to three months following that incident of those symptoms since that time, the applicant’s employment was and remains “the main substantial contributing factor” to the current diagnosed condition, in this regard the CRPS of the left lower limb. In this regard, the incidents of September 2018 and May 2019 noted above are not relevant and I accept the opinion of Dr Dias in this regard. This, in my view, supports a commonsense evaluation of the chain of causation between the CRPS left leg injury and the incident on 30 November 2018.
I find that the applicant sustained injury, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), being CRPS of the left leg, as a result of the incident on 30 November 2018. I find that the applicant’s employment with the respondent on 30 November 2018 was a substantial contributing factor to the CRPS left leg injury, pursuant to s 9A of the 1987 Act.
In relation to the claimed consequential right foot and ankle condition, it is necessary to consider whether the applicant’s right foot and ankle symptoms and restrictions resulted from injury, being CRPS of the left leg, or injury to the left foot and ankle, on 30 November 2018. It is not necessary to establish “injury” to the right foot and ankle[1]. The test of causation is whether the claimed loss, in this case the right foot and ankle, “resulted from” the relevant work injury of 30 November 2018.[2] A commonsense evaluation of the causal chain is required in this regard[3].
[1] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at [45].
[2] Moon at [46].
[3]
As noted above, in my view there was no evidence to suggest that the incident involving the applicant’s right foot on 5 September 2018 was significant. The evidence was to the contrary.
The clinical notes referred to above indicate altered gait by January 2019, right foot problems by February 2019 due to putting more pressure on the opposite leg because of the foot injury, more pain in the right leg by May 2019, with an MRI report of 9 April 2019 showing minor degenerative changes and oedema in the right foot.
The brevity of the applicant’s statement in relation to his right foot is further supported by the history and reasoning provided by Dr Parasher. As noted above, Dr Parasher accepted the diagnosis of left leg CRPS that was made by Dr Manohar. Dr Parasher described the process of the applicant’s altered gait and the mechanism of the resulting right foot and ankle symptoms. He diagnosed soft tissue injury of the right lower limb.
This is not inconsistent with an absence of findings on investigation that was relied upon by the respondent. Indeed, having regard to the matters noted in the decision of Moon, it is not determinative that there is an absence of pathology revealed on investigation scans, as the question is whether the symptoms and restrictions in the applicant’s right foot and ankle resulted from the injury on 30 November 2018. In any event, there were relevant findings in the MRI report of 9 April 2019.
Dr Dias accepted that the applicant sustained chronic consequential right ankle/client foot pain, stiffness and discomfort that was secondary to prolonged overcompensation for altered gait mechanics as a result of the left foot/ankle injury. In my view, this opinion is supported by the clinical records from January 2019 and the findings and reasoning provided by Dr Parasher. Dr Dias explained that the symptoms in the right ankle began to develop an early 2019 and the applicant suffered with ongoing symptoms in the right ankle and hind foot region on a continuing basis since that time.
The respondent submitted that the applicant’s right leg condition was not supported by the applicant’s treating specialists, Dr Crozier and Dr O’Carrigan. However, neither doctor directly dealt with the issue of the relationship between the applicant’s right leg symptoms and the injury to his left leg on 30 November 2018.
Dr O’Carrigan in his report of 8 April 2019 noted pain on the right side, that is the right foot, because the applicant had been putting a lot of weight on the right side and, in his letter of 30 April 2019, in noting ongoing pain issues in both legs Dr O’Carrigan thought that the significant varicose veins on both sides could be contributing to the swelling and discomfort.
Dr Crozier in his report of 11 June 2019 noted that the applicant favoured using his left leg subsequently to the subject injury and that he had become aware of prominent veins on both calves. Dr Crozier stated that he did not believe there was a relationship between the soft tissue injury to the left foot and the pre-existing varicose veins.
In my view, neither Dr O’Carrigan nor Dr Crozier addressed the issue of whether any or all of the applicant’s right leg pain and restrictions resulted from the injury of 30 November 2018. Dr Crozier considered the issue of the relationship between the injury to the left foot and the varicose veins. Dr O’Carrigan did not express an opinion on the issue and referred the applicant to Dr Crozier to consider whether varicose veins on both sides could be contributing to the swelling and discomfort.
I do not accept the respondent’s submissions in relation to the opinions of Dr Crozier and Dr O’Carrigan in relation to the right leg symptoms and relationship to the left leg injury. In my view, neither of the opinions of Dr O’Carrigan and Dr Crozier are persuasive evidence in this regard.
Similarly, I do not accept the respondent’s submission that the opinion of Dr Hardy is persuasive evidence that the right leg condition is due to the pre-existing varicose veins condition of both legs, for the reasons that I have given above in relation to his opinion relating to the CRPS left leg condition. Moreover, I do not accept the opinion of Dr Hardy in which he disagreed with the view of Dr Parasher. Dr Hardy in his supplementary report considered “injury in the contralateral limb”, which is not the test in relation to a consequential condition. He also relied upon the premise that there was no compelling scientific evidence in support of compensatory injury in the contralateral limb. However, the enquiry is a commonsense evaluation of the facts determined in this case, as set out in Kooragang, based upon the concept of causation which differs from philosophical and scientific notions of causation[4], that is causation on the balance of probabilities.
[4] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at [5].

Similarly, Dr Wallace dealt with the question of whether there was any work-related injury to the applicant’s right ankle and lumbar spine and he also referred to a scientific or medical study in relation to what he regarded as there being no medical evidence to support the notion of an “overcompensation injury” to the opposite lower limb. I do not accept the opinion of Dr Wallace for the same reasons that I have identified in respect of the opinion of Dr Hardy.
A/Prof Myers also was of the view that the claim for the right ankle condition was not clinically and medically able to be sustained and he knew of no significant body of evidence consistent with overcompensation issues with the contralateral limb. This is the same argument and reasoning put forward by Dr Hardy and Dr Wallace and for the same reasons I do not accept the opinion of A/Prof Myers in this regard.
The clinical records from January 2019, and the reports of Dr Parasher and Dr Dias support a commonsense evaluation of the chain of causation between the CRPS left leg injury on 30 November 2018 and the applicant’s consequential right ankle and foot condition. I so find.
I find that the applicant sustained a right ankle and foot soft tissue condition as a result of the incident on 30 November 2018.
The respondent challenged the opinion of Dr Dias in relation to the lumbar spine on the basis that there was not a fair climate for him to provide his opinion. It might be implied that this objection applies equally to his opinion in relation to the right ankle and foot, having regard to the clinical record of injury on 5 September 2018. I do not accept this argument. As I have found above, in my view there was no evidence to suggest that the incident involving the applicant’s right foot on 5 September 2018 was significant. The evidence was to the contrary. It is not necessary that the proven facts must correspond with complete precision to the proposition on which the opinion is based[5].
[5] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, (Paric) at [9].
In relation to the claimed consequential lumbar spine condition, it is necessary to consider whether the applicant’s lumbar spine symptoms and restrictions resulted from injury, being CRPS of the left leg, or injury to the left foot and ankle, on 30 November 2018. It is not necessary to establish “injury” of the lumbar spine[6]. The test of causation is whether the claimed loss, in this case the lumbar spine, “resulted from” the relevant work injury of 30 November 2018.[7] A commonsense evaluation of the causal chain is required in this regard[8].
[6] Moon at [45].
[7] Moon at [46].
[8] Moon at [47], citing Kooragang at [463]-[464].
The respondent submitted that an alternative cause of the applicant’s lumbar spine condition was the incident recorded on 17 May 2019. It was submitted that the onset of the lumbar spine symptoms in May 2019 and the Certificate of Capacity dated 4 June 2019 followed the unrelated incident of 17 May 2019. The applicant conceded that the onset of symptoms in May 2019 and the Certificate of Capacity dated 4 June 2019 followed the incident of 17 May 2019, effects of that incident were of limited duration and unrelated to the later onset of symptoms in May 2020.
As noted above, the incident in relation to the applicant’s back May 2019 resulted in symptomatic treatment with analgesics and mild stretching exercises, with subsequent record of improvement, and with mild symptoms recorded by 4 June 2019, and no further GP treatment consultation for back symptoms until May 2020. The applicant did not undergo the lumbar treatment recommended by Dr Manohar in September 2019 for back symptoms in respect of an unspecified history. The brief history recorded by Dr Hardy in this regard, although somewhat ambiguous, was that the applicant had a sore back “at the time of the injury” and could lift 7 to 8kg and bending his trunk was a problem during his back pain but that it had since resolved. In my view, this provided support for the premise, which I accept, that by November 2019 the applicant’s back pain following the incident of 17 May 2019 had resolved, and indeed had resolved since about June 2019.
I have also accepted the history and description of altered gait and compensation through the right lower limb as provided by Dr Parasher in his report of April and May 2020. This in my view is consistent with the history recorded in the clinical records which notes the onset of lower back symptoms in May 2020 in the context of ongoing pain in the left foot and leg and the right foot and ankle.
The difficulty for the applicant is that the history recorded by Dr Dias refers to the onset of back symptoms from about May 2019, not May 2020, and also that there is no reference to an incident of lumbar spine pain on 17 May 2019. As noted above, it was the respondent’s submission that, in the absence of a history of the incident on 17 May 2019, there was not a fair climate for Dr Dias to provide his opinion in relation to the applicant’s back pain. I do not accept this submission. The clinical records do not identify any record of continuing pain or symptoms or treatment after 4 June 2019, a period of less than three weeks. This was a history that was supported, on balance, by the history recorded by Dr Hardy, as noted above. It is not necessary that the proven facts must correspond with complete precision to the proposition on which the opinion is based[9]. In the context of a consequential back condition said to result from altered gait due to CRPS of the left leg and consequential right foot and ankle conditions, in which the history recorded by Dr Parasher and in the clinical records of May 2020 indicate the onset of such a condition of the lower back, a longer timeframe for the onset of such back symptoms than recorded by Dr Dias is in my view not inconsistent with the opinion of Dr Dias where he has considered altered gait resulting from the left foot and ankle and CRPS, consequential right ankle and foot symptoms and subsequent back symptoms. In my view, there was a fair climate for the provision of the opinion of Dr Dias in this regard. Moreover, the short duration of symptoms recorded following the incident of 17 May 2019, together with there being no evidence of any continuing symptoms or treatment in that regard as supported by the history taken by Dr Hardy, in my view does not support the proposition that there was not a fair climate for the opinion of Dr Dias. In my view it is speculative to suggest that the incident of 17 May 2019 was an alternative cause of the applicant’s back condition on the basis of the evidence available.
[9] Paric at [9].
I therefore accept the opinion of Dr Dias that the applicant suffers with chronic non-specific lumbar spine pain, stiffness and discomfort, secondary to prolonged altered gait mechanics as a result of the left foot/ankle injury of 30 November 2018, being the acute crush injury to the left foot and CRPS of the left foot, ankle and leg. A commonsense evaluation of the chain of causation is that the applicant sustained on 30 November 2018 an acute crush injury to the left foot and ankle, with onset of CRPS injury of the left leg, that there was an episode of short duration of back pain following an incident of 17 May 2019, and that the applicant had altered gait due to the injury to the left leg on 30 November 2018, resulting in lumbar spine symptoms and restrictions of pain, stiffness and discomfort.
For the reasons enumerated above in relation to the consequential right foot and ankle condition, I do not accept the opinions of Dr Wallace and A/Prof Myers in respect of the applicant’s lumbar spine condition. The reasoning provided by both doctors in relation to the consequential right and foot ankle condition was also provided by both doctors in respect of the claimed lumbar spine condition.
I find that as a result of injury on 30 November 2018, the applicant sustained a consequential lumbar spine condition.

Moon at [47], citing Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) at
[463]-[464].

[2022] NSWPIC 535

27 September 2022