Ride v Anne Reid Property Management Pty Ltd ATF McInnes Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ride v Anne Reid Property Management Pty Ltd ATF McInnes Family Trust [2024] NSWPIC 554
APPLICANT:	Samuel Ride
RESPONDENT:	ANNE REID PROPERTY MANAGEMENT PTY LTD ATF McInnes Family Trust
MEMBER:	Anne Gracie
DATE OF DECISION:	4 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for section 66 of the 1987 Act for injury to lumbar spine and consequential injuries to the left lower extremity (left hip), right lower extremity (right hip), left lower extremity (left ankle/left hindfoot) and scarring; respondent disputes consequential injuries to right hip, left hip and left ankle/left hindfoot; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence; consideration of whether the consequential injuries developed as a result of the injury to the lumbar spine sustained by the applicant; Kooragang Cement Pty Ltd v Bates; Kumar v Royal Comfort Bedding Ltd; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan; Moody v Evolution Traffic Control Pty Ltd; Moon v Conmah Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timber Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; Jaffarie v Quality Castings Pty Ltd; Mason v Demasi; Roads and Traffic Authority (NSW) v Malcolm; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd; Australian Security and Investments Commission v Rich; Frost v Kourouche; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes; Held – the applicant has developed consequential conditions in his right hip, left hip and left ankle/left hindfoot as a result of the injury sustained by the applicant to his lumbar spine on 16 December 2020; matter remitted to the President for referral to a Medical Assessor pursuant to section 321 of the 1998 Act for assessment of the whole person impairment of the applicant’s lumbar spine, scarring, left lower extremity (left hip), right lower extremity (right hip) and left lower extremity (left ankle/left hindfoot) due to the injury sustained on 16 December 2020.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential injury to his left hip as a result of the injury to his lower back on 16 December 2020. 2. The applicant sustained a consequential injury to his right hip as a result of the injury to his lower back on 16 December 2020. 3. The applicant sustained a consequential injury to his left ankle/left hindfoot as a result of the injury to his lower back on 16 December 2020. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 December 2020. Body parts: lumbar spine (personal injury); skin/TEMSKI (consequential injury); left lower extremity (left hip) (consequential injury); right lower extremity (right hip) (consequential injury), and left lower extremity (left ankle/left hind foot) (consequential injury). Method of assessment: whole person impairment. 5. The material to be referred to the Medical Assessor is as follows: (a) Application to Resolve a Dispute and annexures; (b) Reply and annexures, and (c) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

Samuel Ride, the applicant is 29 years of age. He commenced employment with Anne Reid Property Management Pty Ltd ATF McInnes Family Trust, the respondent, in 2017 as a truck driver. The applicant ceased working with the respondent in
March 2021 and commenced working with another employer as a truck driver in November 2021.
There is no dispute that the applicant sustained an injury to his lumbar spine on
16 December 2020 during the course of his employment when he was manually lifting a bus shelter roof to put a sling on it so that the bus shelter roof could be lifted with a crane.
The applicant lodged a workers compensation claim with the respondent on
15 March 2021.
Liability was accepted for the injury to the lumbar spine by the respondent.
The applicant underwent surgery to his lumbar spine in July 2021.
On 17 November 2023, the applicant’s solicitor served a notice of claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of permanent impairment to his lumbar spine, scarring as a result of the lumbar surgery, left lower extremity - left hip, right lower extremity - right hip, left lower extremity - left ankle/ left hindfoot due to the injury sustained on
16 December 2020. The claim was based on a report from Dr Patrick dated
15 November 2023 (see page 251 of the Application to Resolve a Dispute (ARD)).
On 4 April 2024 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The s 78 notice disputed that the applicant had suffered the injuries to his left lower extremity, (left hip), right lower extremity, (right hip), and left lower extremity (left ankle / left hindfoot) due to the injury sustained on 16 December 2020.
By an ARD, registered in the Personal Injury Commission, (Commission) on
31 July 2024, the applicant claims lump sum compensation for an injury sustained to his lumbar spine and scarring and lump sum compensation in respect of consequential injuries to his left lower extremity (left hip) right lower extremity (right hip) and left lower extremity (left ankle/left hindfoot).
The matter was listed for preliminary conference on 28 August 2024. The matter did not resolve on that day. The matter was then listed for conciliation/arbitration on
24 September 2024. Conciliation of the matter was unsuccessful and the matter proceeded to an arbitration hearing.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained consequential injuries to his left hip, his right hip and his left ankle/left hindfoot as a result of the accepted injury to his lumbar spine that occurred on 16 December 2020, and
(b) the degree of permanent impairment resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration via Microsoft Teams on 24 September 2024. The applicant was represented by Mr Tryon of counsel instructed by Mr Farooq, solicitor. The applicant, Mr Ride was present. The respondent was represented by Ms Goodman of counsel, instructed by Mr Miles, solicitor.
Mr McAndrew, from the insurer EML, joined the conciliation phase of the proceedings but was excused by consent from the arbitration phase of the proceedings.
The matter had been listed for a preliminary conference on 28 August 2024. On that day, an order was made by consent that the ARD was amended to plead the left and right hips and the left ankle/left hindfoot as consequential injuries.
A further direction was made for the parties to agree on the monetary amount claimed by the applicant pursuant to s 66 of the 1987 for 23% whole person impairment, as pleaded. I was advised by Ms Goodman at the commencement of the arbitration that the monetary amount for 23% whole person impairment together with the 5% uplift in respect of the lumbar spine injury was $64,746.09.
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) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No oral evidence was called. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties.

Applicant’s evidence

The applicant has provided a statement dated 28 May 2024 (see page one of the ARD).
The applicant relies on the discharge summary from Canberra Hospital dated
21 January 2021 (see page 7 of the ARD). an MRI of the lumbar spine dated 4 March 2021, (see page 8 of the ARD), a report from the applicant’s treating general practitioner Dr Chow dated 23 March 2021, (see page nine of the ARD), several reports from the applicant’s treating neurosurgeon Dr Ow-Yang dated 16 April 2021, 16 June 2021, 12 July 2021 and
25 August 2021 (see pages 11,13, 14 and 17 of the ARD). The applicant also relies on the clinical notes from the Hughes Family Practice, the Hyperdome Medical Centre records, the Matrix Physiotherapy records and Western Creek Physiotherapy records (see pages 18, 83, 106 and 228 of the ARD). The applicant also relies on two reports from independent medical specialist, Dr Patrick, general surgeon dated 15 November 2023 (see page 251 of the ARD) and 9 July 2024 (see page 258 of the ARD).

Respondent’s evidence

The respondent relies on a report from independent medical specialist Dr Powell dated
28 March 2024 (see page one of the Reply). The respondent also relies on a report from
Dr Eriz dated 2 June 2018 (see page 22 of the Reply) and the Emergency Department Discharge Letter from Canberra Hospital dated 21 January 2021 (see page 23 of the Reply). The respondent relies on the liability acceptance letter from EML dated 8 June 2021 and the s 78 Notice from EML dated 4 April 2024.

Applicant’s submissions

Mr Tryon took me to the decision of Member Homan in the matter of Moody v EvolutionTraffic Control Pty Ltd [2024] NSWPIC 420 (Moody) which he submits provides a framework for his submissions in relation to consequential conditions on behalf of the applicant.
Mr Tryon also noted the relevant legal principles set out in the decision of Moon v ConmahPty Ltd [2009] NSWWCCPD 134 (Moon).
Mr Tryon submits that any symptoms or restrictions in the applicant’s left and right hips and the left ankle/left hindfoot have resulted from the lumbar spine injury.
Mr Tryon confirmed that based on the authorities, it is not necessary for the applicant to show that there has been a pathological change or specific injury to establish a consequential condition. (See Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan)).
Mr Tryon took me to the statement of the applicant to support the severity of the injury the applicant sustained to his back and the subsequent treatment and resultant surgery that he underwent. Mr Tryon also pointed out the ongoing symptoms that the applicant continues to experience in his lower back and left lower extremity.
Mr Tryon took me to the relevant sections of the report from Dr Patrick dated
15 November 2023 which he noted the following history had been taken by Dr Patrick:
“Samuel Ride was in the process of lifting the bus shelter roof manually and whilst doing so he experienced an onset of immediate pain in his lower back.
As a result of the onset of pain Samuel Ride had to let go of the bus shelter roof for a while and then attempted to strap it another way. He continued to work on that day but with continuing pain… it was not until the New Year subsequent to the Christmas break that Samuel Ride felt forced to seek medical attention at the local hospital (Canberra). Following this he was seen by GP, who has referred him onto neurosurgeon Dr Michael Ow-Yang of Capital Neurosurgery, and he was also sent for physiotherapy…
I do note that Mr Samuel Ride did suffer significant injury to his lumbar spine and psychological sequelae as a result …
Samuel Ride had significant ongoing problems with the restricted ability to return to work and restricted ability to enjoy usual social activities. He was very much aware of weakness in the left leg and foot with altered gait. (Dr Patrick’s emphasis). He had restricted ability with regard to sitting and standing for long periods of time.
He has come quite appropriately to surgical intervention… where he has undergone a left L4/5 laminotomy and rhizolysis and microdisectomy. This surgery has had a good result.
… Samuel Ride continued to work with pain until about the first quarter of 2021, following which he had no alternative but to cease work completely at that time. His hours had been inconsistent naturally due to the fluctuation of his symptoms.
Subsequent to the surgery carried out by Dr Ow-Yang, Mr Ride was able to return to work in the November of 2021, but with a different employer and he is now working with Cracka Excavations and he is working at present.
PRESENT SYMPTOMS
…4. He has numbness into the left leg and foot.
5. He has weakness in the left leg with altered gait.
6. Sitting or standing for long periods is difficult for him
PHYSICAL EXAMINATION
It is evident when lying supine that he has very limited adduction at both right and left hips, each of which attracts 2% WPI. This is quite evident.
There is a left lower extremity ankle/hindfoot problem and this attracts 3% WPI for both planter flexion and extension and there is also an assessment for eversion at the hindfoot in accordance with Table 17-12.
OPINION…
3. The disabilities suffered as a result of the accident of 16 December 2020 are as mentioned being lumbar spine requiring surgical intervention, and also the limitations in adduction in both right and left hips, as well as the ankle/hindfoot plantar flexion and extension and also the eversion. The skin scarring does bother him.”
Mr Tryon then took me to the supplementary report from Dr Patrick dated 9 July 2024. In that report Dr Patrick confirms his opinion that there is a causal relationship between the originating injury to the applicant’s lumbar spine and the symptoms he experiences in his right hip, left hip and left lower extremity/left hindfoot.
Dr Patrick comments on the report from Dr Powell dated 30 April 2024. Dr Powell has noted the persisting features of left lumbar radiculopathy. Dr Patrick has examined and recorded the range of active motion of the left and right hips, in which he noted “very limited adduction” and the range of motion in the left lower extremity, left ankle and left hindfoot in which he noted limitations in plantar flexion, extension and eversion.
Dr Patrick states that he has included assessments of whole person impairment in respect of the left and right hips and the left ankle/left hindfoot as he had recorded restrictions of movement and in his “experience as not only a general, vascular and trauma surgeon, but also in my many years examining patients as an IME it is not at all unusual or uncommon that the hips have been affected as a result of the lumbar spinal injury”.
Mr Tryon submits that it is sufficient for the applicant to there being symptoms in the claimed body parts. The symptoms are set out in the applicant’s statement. In combination with the assessment undertaken by Dr Patrick and his observation of restriction of movement,
Mr Tryon submits that the applicant has satisfied the legal test as set out in Moon. Mr Tryon submits that I should find that the applicant has sustained consequential injuries to his left and right hips and his left ankle and left hindfoot as a result of the injury he sustained to his lumbar spine on 16 December 2020.

Respondent’s submissions

Ms Goodman confirmed that liability for the lumbar spine and consequential scarring has been accepted and these two body parts can be referred for assessment.
Ms Goodman submits that the Canberra Hospital Discharge Letter dated 21 January 2021 only recorded complaints of pain in the lumbar region. Ms Goodman then notes that further in the Discharge Letter a reference to intermittent left lateral buttocks numbness and numbness to the left lateral thigh. Ms Goodman submits that this represents a sciatic type distribution. There is no mention of hips or left ankle/left hindfoot pain.
Ms Goodman then took me to the clinical notes from the Hyperdome Medical Centre (see page 91 of the ARD). Ms Goodman pointed out that in an attendance with Dr Alaebo on
20 January 2021, there is no reference to the injury to the back or symptoms in the left and right hips and left ankle/left hindfoot. Dr Alaebo also records that the applicant is able to go to work as a truck driver. I note this was the day before the applicant’s presentation at Canberra Hospital. The applicant then attended Dr Lau on 24 January 2021, three days after his presentation at the emergency department of Canberra Hospital and provided a history of lower back pain for two months but made no mention of pain in his left and right hips or left ankle/left hindfoot. Dr Lau examined the applicant’s left and right hips and reported full range of motion. Ms Goodman noted that the next attendance at the Hyperdome Medical Centre was not until 8 March 2022.
Ms Goodman then took me to the report from Mr Bloom from the Weston Creek Physiotherapy practice dated 4 March 2021 (see page 160 of the ARD). In that report,
Ms Goodman submits Mr Bloom recorded pain in the applicant’s left lumbar spine and numbness in the left thigh and lower leg representing classic symptoms of radiculopathy.
Mr Bloom did not record pain or symptoms in the left and right hips or the left ankle/left hindfoot. Mr Bloom did not record a history of the injury on 16 December 2020, but rather a history of back pain over the last 10 years. Mr Bloom referred the applicant for an MRI scan.
Ms Goodman made passing reference to the MRI scan that was taken on 3 March 2021 (see page 8 of the ARD). On the basis of the MRI scan results, the applicant was referred to a neurosurgeon, Dr Ow-Yang by the general practitioner he commenced seeing from the Hughes Family Practice, Dr Chow on 10 March 2021. The applicant first attended Dr Chow on 10 March 2021. Ms Goodman took me to the report from Dr Chow dated 24 March 2021 and once again pointed out that the report only made reference to the severe lower back pain and left L5 radiculopathy but not the left or right hips or the left ankle and left hindfoot. (see page 9 of the ARD).
Ms Goodman then took me to the reports from Dr Ow-Yang dated 16 April 2021 (see page 11 of the ARD), 16 June 2021 (see page 13 of the ARD) and 25 August 2021 (see page of 17 the ARD). The applicant first attended Dr Ow-Yang on 16 April 2021. Ms Goodman pointed out that there was no mention of the left and right hips and the left ankle/left hindfoot in the reports.
Ms Goodman then took me to the clinical notes from the Hyperdome Medical Centre and an entry on 6 December 2022 where the applicant complained of his left foot going numb after standing for long periods at a festival with some radiation of lower back pain to left thigh. (see page 93 of the ARD). Ms Goodman took me to an entry in the clinical notes for an attendance on 1 December 2023 where Dr Hussain has recorded a history of low back pain “yesterday” after lifting a ramp weighing 80kg and a notation that the applicant’s hips were “OK”. (see page 95 of the ARD). Ms Goodman submits that the clinical notes do not record pain or symptoms in the left and right hips nor the left ankle/left hindfoot.
Ms Goodman submits that on the contemporaneous material there are “absolutely no complaints of anything other than back and left leg sciatic type pain”.
Ms Goodman then referred to the report from Dr Powell dated 28 March 2024 (see page 1 of the reply). In summary, Dr Powell accepts the injury the applicant sustained to his back however the pain and symptoms the applicant is experiencing in his left lower extremity, left leg, are radicular/sciatic problems and as such should not be assessed as separate injuries. Dr Powell examined the applicant’s hips, ankles and subtalar joints and advised the clinical/screen examination was “unremarkable”.

Ms Goodman made reference to the reports from Dr Patrick. In summary, Ms Goodman’s submissions in respect of the reports from Dr Patrick were that the reports did not provide an appropriate history to explain the assessments of impairment he has provided in respect of the left and right hips and the left ankle/left hindfoot. Further Dr Patrick has not addressed causation in respect of these alleged consequential injuries.
Ms Goodman submits that it is necessary to examine the chain of causation in relation to the claimed consequential conditions. Ms Goodman further submits that based on the evidence that she has taken me to, I would not be satisfied that there was an unbroken chain of causation between the original injury to the lumbar spine and the consequential conditions the applicant has claimed in respect of his hips and his left ankle/left hindfoot and those body parts should not be referred to a Medical Assessor as separate conditions. Ms Goodman submits that there is a complete absence of evidence dealing with causation. Ms Goodman further submitted that there is no evidence from the applicant to provide the causal connection. The ARD does not claim that the alleged consequential injuries have arisen as a result of an altered gait or something else.
Ms Goodman submits that Dr Patrick’s reports did not comply with the principles established in the decisions of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita), Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock), Paric v John Holland (Constructions) PtyLtd [1985] HCA 58 (Paric) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) but did not elaborate on this submission.

Applicant’s submissions in reply

In reply, Mr Tryon conceded that Dr Patrick did not explicitly identify the chain of causation between the injury to the lumbar spine on 16 December 2020 and the alleged consequential injuries to the left and right hips and the left ankle/left hindfoot.
Mr Tryon submits that this is not insurmountable and it is open to me to infer the causal chain based on his findings. Dr Patrick has identified restriction of movement of the left and right hips and the left ankle/left hindfoot. Dr Patrick has observed an altered gait. Dr Patrick has provided details of his “experience as not only a general, vascular and trauma surgeon but also in” his “many years examining patients as an IME” and states that “it is not at all unusual or uncommon that the hips have been affected as a result of the lumbar spinal injury”.
Mr Tryon submits that the opinion expressed by Dr Patrick does not offend the principles established in the cases such as Makita. Mr Tryon submits that it is open to me to form my own opinion in relation to the causal link based on all of the evidence before me.
Mr Tryon points out that the applicant was not cross examined. Mr Tryon referred to the case of Frost v Kourouche [2014] 86 NSWLR 214 at 41 in relation to procedural fairness.
Mr Tryon also relies on the decision in Mason v Demasi [2009] NSWCA 227 in relation to the applicant’s reporting of symptoms to his health providers and this aspect of the applicant’s claim should be approached with caution. Mr Tryon points out that the applicant has returned to work which may explain his reluctance to report all of his symptoms to his health providers. The applicant’s absence of regular attendance with his treating doctors for reporting and review of his ongoing symptoms, should similarly not be construed unfavourably. In this respect I note both Dr Patrick and Dr Powell have recorded significant ongoing symptoms in their respective reports and these symptoms are also recorded in the applicant’s statement. Mr Tryon points out that the applicant reported the symptoms he is having in his left leg and left foot and his altered gait to Dr Patrick.

Respondent’s further submissions in reply

With Mr Tryon’s agreement, Ms Goodman made one further submission in reply in relation to the applicant’s submission that the applicant had not been cross examined as to why he had not reported symptoms in his left and right hips and his left ankle/left hindfoot to his treating doctors. Ms Goodman pointed out that applicants are not required for cross examination in this jurisdiction and no adverse inference should be drawn by the fact that the applicant was not cross examined. Furthermore, Ms Goodman submits that the onus is on the applicant to prove his case on the balance of probabilities. This onus does not shift. It is not a matter for the respondent to cross examine the applicant to potentially fill in the gaps in the applicant’s evidence.

CONSIDERATION OF THE EVIDENCE, FINDINGS AND REASONS

The respondent has accepted liability for the injury the applicant sustained to his lumbar spine and the consequential scarring of his lower back as a result of the surgical procedure performed by Dr Ow-Yang.
In this respect, the respondent agrees to those body parts, that is the lumbar spine and scarring, to be referred to a Medical Assessor in relation to the applicant's claim pursuant to s 66 of the 1987 Act. The issue for me to determine is whether or not the applicant has also sustained consequential injuries to his left and right hips and his left ankle/left hindfoot and if so, those consequential injuries should be included in the referral to a Medical Assessor.
It is apparent that the applicant developed significant L5 radiculopathy as a result of the lumbar spine injury. This is confirmed in the reports from Dr Patrick, Dr Powell, Dr Ow-Yang and Dr Chow.
I note Dr Powell has provided an additional 3% whole person impairment in respect of radiculopathy to his base assessment of whole person impairment of the lumbar spine. In contrast, Dr Patrick has not provided an additional percentage amount to his assessment of whole person impairment of the lumbar spine in respect of the radiculopathy but rather, based on his examination of the applicant, Dr Patrick has provided separate assessments of whole person impairment in relation to restrictions of movement that he found on examination in the applicant’s left and right hips and left ankle/left hindfoot.
I acknowledge that the applicant has experienced back pain prior to the accident on
16 December 2024. The applicant has confirmed this in his statement at paragraph 8. (see page one of the ARD). The applicant has also reported this prior history to all of the medical providers he has seen for his injury.
The prior history is confirmed in numerous medical reports. Importantly, in a report from the National Home Doctor Service dated 2 June 2018, 18 months before the accident, the doctor has recorded “severe back pain… no neurological changes/pain radiating to lower limbs” (see page 23 of the Reply).
In the material before me there is no evidence of the applicant suffering from any pain or symptoms in the left and right hips or the left ankle/left hindfoot prior to the accident on
16 December 2024.
In his statement at paragraph 60 the applicant confirms “I have never had the symptoms that I now have in my left leg and left thigh prior to the injury” (see page 5 of the ARD).
In his report Dr Powell found the applicant to be “a most compliant and cooperative patient throughout the taking of history and examination. There was no suggestion of overreaction or exaggeration. He was observed to be in mild discomfort at times during the assessment” (see page 3 of the reply).
Based on this, I have no difficulty accepting the applicant as a witness of truth and I accept that his statement of 28 May 2024 is an honest account of his injury and the development of his subsequent problems and current symptoms.
It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In this regard in Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 8 (Kumar), Roche DP provided a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd V Bates (1994) 35 NSWLR 452 (Kooragang) (at [46] to [48]):
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463 - 464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death results from a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore’ identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”
In Moon, Roche DP stated (at [44-46]):
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that the restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads and Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272)
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury”.
As discussed in Moon and in the submissions made by Mr Tryon on behalf of the applicant, all the applicant has to establish is that he has symptoms and restrictions in his left and right hips and his left ankle and left hindfoot which have resulted from the accepted lumbar spine injury. Whether the applicant can establish this is a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence including, where applicable, expert opinions. I accept the submission made by Mr Tryon on behalf of the applicant that based on the authorities it is not necessary for the applicant to show that there has been a pathological change or specific injury to establish a consequential condition.
I have considered the applicant’s statement dated 28 May 2024 (see page 1 of the ARD). In the statement, the applicant advises that following the injury in December 2020 he had pain in the lower back shooting into the left buttock (see paragraph 32 of the statement). The applicant states this progressively got worse (see paragraph 34 of the statement). According to his statement he returned to work after the Christmas break and the pain was getting worse (see paragraph 35 of the statement). By 21 January 2021 the pain had become unmanageable and excruciating. He had pain in the left leg and hip area and the pain was now going down into the left buttock and down the left leg (see paragraph 36 of the statement). In March 2021 the pain was so bad that he went to see a physiotherapist who recommended that he undergo an MRI scan and put in a workers compensation claim (see paragraph 39 of the statement). By March 2021, he was getting pain in the left foot, left ankle and left toes as well as reduced power in his left ankle and left toes. He could not move his left ankle and left toes (see paragraph 40 of the statement). He underwent surgery to his lumbar spine in July 2021.
Despite the surgery the applicant states that he continues to have numbness in the left leg and left foot and advises that this has never got better and is still the same.
Under the heading “Current symptoms”, the applicant advises that he is currently experiencing the following disabilities: pain in the left lower limb, tenderness in the left lower limb, weakness in left leg with altered gait, pins and needles from left side of his hip to his left foot and left foot drop. He has noticed power loss in his left leg and left foot and toes after strenuous movement. He has restriction of motion of the left lower limb. He has developed a limp. He has difficulty sitting or standing for long periods and has feeling of unsteadiness. He is unable to sit for too long or stand for too long and has a reduced sensation in his left thigh. He is unable to walk for long periods. Importantly, the applicant goes on to say that he has never had the symptoms that he now has in his left leg and left thigh prior to the injury. He also states that the numbness in his left leg and left foot has never got better and is still the same.
The applicant’s medical evidence supports the symptoms the applicant has developed since the initial injury.
I note the respondent’s submission that despite the fact the ARD was amended by consent at the preliminary conference to specifically plead the injuries to the left and right hips and left ankle/left hind foot as consequential injuries, no application was made at that time to amend the ARD in respect of the cause of injury to include a brief description as to how the injuries to the left and right hips and the left ankle and left hind foot were consequential to the lumbar spine injury. At this point I note that cases are determined on the evidence and arguments presented, not on the pleadings or particulars which are only a “means to an end” (Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes)).
The respondent submits that the symptoms the applicant may have in his left and right hips and his left ankle and left hindfoot are all directly attributable to the L5 radiculopathy that the applicant has developed as a result of his lumbar spine injury and should not be treated as separate consequential injuries.
I disagree with this submission for the following reasons.
It is clear, as I have said at the outset, that the applicant has developed L5 radiculopathy as a result of the injury to his lumbar spine. The assessments of impairment provided by
Dr Patrick in his report are based on a thorough examination of the applicant for the purpose of providing assessments of whole person impairment for the lumbar spine and scarring and also for any additional impairments that he has identified that are referable, or consequential to, the injury to the lumbar spine.
I agree with the respondent’s submission that Dr Patrick has not clearly spelt out the causal chain between the lumbar injury and the assessment of whole person impairment of the left and right hips.
In this regard, I see some correlation between the way in which Wood DP approached evidence from Dr Patrick in Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero), where she stated (at [129]-[130]):
“The Arbitrator approached the consideration of Dr Patrick's evidence by expressing the opinion that it was always difficult when the first reference to the condition was in a medico legal report. It may be said that in some cases, that fact may pose a difficulty. However, it is not always the case. In this case, the factual basis upon which the consequential condition relies, that is the high tibial osteotomy, altered gait, limping and over-pronation, and a deteriorating condition in the right knee, is well made out in the historical reports.
Additionally, Dr Patrick was not the first doctor to record the onset of left knee symptoms. The onset of left knee symptoms was recorded by Dr Breit in September 2016, and the history provided was that the symptoms had been present for approximately 12 months.That history largely accords with Mr Arqueros evidence.”
In this respect I note Dr Patrick has taken a history from the applicant that since the injury he has developed an altered gait and he walks with a limp. The applicant has confirmed this in his statement. Dr Chow in her report dated 24 March 2021, noted dragging of the left foot. The clinical notes from the Hughes Family Practice have numerous references to ongoing weakness in the applicant’s left leg and at an attendance on 24 March 2021, the doctor has recorded that “his employer has indicated that there are no suitable duties for Sam given his injury and ongoing left leg weakness. He would normally operate a truck (manual) so unable to cont [sic] this. They cannot provide automatic. Concerns about prolonged sitting. Increased falls risk given altered gait.” (see page 25 of the ARD). I do note on that occasion, the doctor recorded a full range of motion of the hips, knees and ankles but noted the dragging of the left great toe. There are numerous other references to the applicant’s altered gait and restricted movement of the applicant’s left ankle and left foot in the clinical notes and treating medical reports. I find the facts upon which Dr Patrick has based his opinion in relation to the applicant’s left and right hips and left ankle/left hindfoot to be reasonable and supported on the evidence.
At his first attendance for treatment on 24 January 2021 with a medical provider following the initial injury, the applicant complained that he had experienced lower back pain for two months. This attendance was with Dr Lau at the Hyperdome Medical Centre. Dr Lau recorded a full range of motion of the hips with no pain and no abnormality detected with the applicant’s gait. Dr Lau did however record that the applicant reported mild pain associated with movement. This attendance was three days after the applicant had presented at Canberra Hospital where he had received pain killing injections. This may be an explanation for his improved presentation. The applicant advised that he “felt much better” and was fit to return to work as a truck driver. Dr Lau provided the applicant with a medical certificate advising that he would be fit for work as a truck driver from 25 January 2021.

At this point I note the clinical notes from Dr Chow confirm that as of March/April 2021, the applicant was the primary care giver for his three children under the age of four. His partner had been admitted for inpatient psychiatric care. It is therefore not without good reason that the applicant may have understated his symptoms to enable him to return to work.
Dr Ow-Yang has not specifically addressed the left and right hips however he does record “ongoing weakness in the left lower limb” (see page 13 of the ARD). Dr Ow-Yang also expressed concern that the applicant had already developed wasting in the left calf as a result of the L5 injury and this was permanent. For this reason, Dr Ow-Yang described the proposed treatment plan as “urgent surgical decompression”. He did however warn that weakness or numbness can still be present even after maximal surgical treatment. In Dr Ow-Yang’s last report dated 25 August 2021, Dr Ow-Yang notes resolution of lower limb radicular pain however he does not comment on ongoing weakness and restriction of movement of the applicant’s left and right hips and left ankle and left hindfoot that were recorded by Dr Patrick in his report. It is not clear from this report from Dr Ow-Yang, if he examined the applicant to determine if the applicant had been left with any permanent impairment to his hips or left ankle/left hindfoot as a result of the L5 radiculopathy experienced by the applicant following the initial lumbar spine injury. Similarly in her clinical note from an attendance on 17 August 2021, Dr Chow records that the applicant is making excellent progress and has minimal back pain. The attendance does not however mention the left and right hips or the left ankle/ left hindfoot restrictions that were identified by
Dr Patrick. It is apparent from the clinical notes and the last report from Dr Ow-Yang that the applicant was keen to return to work as soon as possible and as such, I accept the applicant’s submission that he understated his symptoms and was not one to attend doctors on a regular basis. It is noted that by October 2021, only three months after the surgery,
Dr Chow had advised the rehabilitation provider IPAR that the applicant was fit to return to full time work as a truck driver on a graduated return to work program.
I note one of the applicant’s submissions was that the respondent did not seek leave to cross examine the applicant in relation to the applicant’s failure to specifically report the symptoms he is alleging to his left and right hips and his left ankle/left hindfoot to his treating medical providers and also the gaps in treatment in the applicant’s medical history. I am satisfied that the applicant’s statement has addressed the alleged gaps in the applicant’s medical evidence and the respondent’s submission that the applicant failed to report his left and right hips and his left ankle/left hindfoot to his medical providers. There are also numerous references to left leg symptoms in the medical provider’s reports and clinical notes. There are numerous references to the applicant’s altered gait. The reports contain references to pain and weakness affecting the left lower limb. It is not clear from the generalised description of left leg symptoms in the reports and clinical notes whether these entries were referable to symptoms in the left hip and the left ankle/left hindfoot however I am satisfied that the symptoms the applicant was experiencing in his left lower limb included symptoms in his left hip and his left ankle/left hindfoot. In particular the respondent submitted that the discharge summary from Canberra Hospital dated 21 January 2021 did not include a reference to the left and right hips and the left ankle/left hindfoot. I note however that the report does make reference to intermittent left lateral buttock numbness radiating to the left lateral thigh.
The respondent made a submission in relation to the report from Dr Chow dated
23 March 2021 (see page 9 of the ARD). The report does not specifically refer to the left and right hips and/or the left ankle/left hindfoot however, Dr Chow did record pain and weakness affecting the left lower limb, dragging of left foot and weakness in the left foot in extension of the great toe and in dorsiflexion and eversion of the left ankle. This report supports the weakness in the left ankle/left hindfoot identified by Dr Patrick in his report dated
15 November 2023 (see page 251 of the ARD).
The respondent made a further submission in relation to the reports from Dr Ow-Yang. On my reading of the reports from Dr Ow-Yang, Dr Ow-Yang confirms that he is not providing an assessment of impairment or commenting on causation. Dr Ow-Yang did find that the applicant could not dorsiflex his left ankle or extend the toes of his left foot. Dr Ow-Yang found paraesthesia of the left foot and a moderate weakness in the left ankle dorsiflexion and severe weakness in the extension of the toes of the left foot. Dr Ow-Yang warned the applicant that due to the severity of the nerve damage he will probably have permanent damage with no recovery likely to the wasting of the muscles in the left leg.
At this point it is important to acknowledge the decision of Mason v Demasi [2009] NSWCA 227 where Basten JA opined that inconsistencies between a party's evidence and medical histories in clinical notes should be treated with caution. In this case, I do not believe there are inconsistencies between the applicant’s evidence and the clinical notes but rather a lack of detailed reporting in the clinical notes.
In relation to the claim for the right lower extremity (right hip) the evidence is scarce. The applicant’s statement does make reference to pain in “my hip area” (see paragraph 36). It is unclear if this is referrable to both hips. There is a reference to right sided leg pain and right leg weakness in the clinical notes from Caitlin Howard from the Matrix Physiotherapy & Sports Injury Clinic (see page 153 of the ARD). There is no evidence before me that the applicant was suffering from restricted adduction of the right hip prior to the injury to the lumbar spine on 16 December 2020. Based on this evidence and the reports from Dr Patrick and the numerous references to the applicant having an altered gait as a result of his lumbar spine injury, I am satisfied that, despite a lack of recorded reporting by the applicant to his medical providers of symptoms in his right hip, that the applicant is also experiencing right hip symptoms resulting in the limited adduction as found by Dr Patrick.
I have also considered the physiotherapy notes from the Matrix Physiotherapy & Sports Clinic (see page 132 of the ARD). The applicant attended the clinic on 33 occasions for treatment of his injury between 24 March 2021 and 4 November 2021. At his first attendance on 24 March 2021 his main symptoms were reported as power loss in the left foot, constant numbness in the left foot and occasional low back pain on the left side with associated shooting leg pain. He advised the physiotherapist that he did not immediately seek medical treatment following the injury but started physiotherapy in February 2021 with Mr David Bloom who he advised the applicant that he couldn't really help him. The subsequent physiotherapist, Ms Caitlin Howard, has recorded at the applicant’s attendance on
24 March 2021 right sided low back pain and leg pain and right leg weakness. Ms Howard has also recorded that the applicant has developed an adaptive gait pattern (see page 154 of the ARD). The clinical notes support ongoing treatment for the lumbar spine to address the left leg radiculopathy symptoms. The physiotherapist has recorded reduced sensation in the dorsum of the left foot and shank at the last appointment (see page 132 of the ARD). The physiotherapist has also recommended hip flexor stretches (see page 136 of the ARD). The report from Ms Howard, physiotherapist dated 15 April 2021 (see page 161 of the ARD), confirms that on her initial assessment, the applicant had “an antalgic gait” and was “stiff”. She also noted that the applicant’s left toe extension was noticeably weak and he had a “very tight” straight leg raise bilaterally. I do note in this report that the applicant’s gait pattern had “improved” however the report does not say that it had fully recovered. I note in the referral from Dr Chow to the exercise physiologist at the Matrix Physiotherapy and Sports Clinic dated 7 April 2021 (see page 206 of the ARD), Dr Chow introduces the applicant in the following way “Thank you for seeing Sam for your opinion. He is currently seeing one of your physios for management of lumbar spine pain with associated radiculopathy. He has ongoing left foot weakness and an alteration in his gait”.
Ms Goodman took me to the report from the first physiotherapist the applicant attended after the accident, Mr Bloom (see page 160 of the ARD). The applicant attended Mr Bloom on
8 February 2021. Ms Goodman submitted that Mr Bloom recorded symptoms of L5 radiculopathy but no restrictions in the hips or the left ankle and left hindfoot. The applicant was however only able to perform a straight leg raise to 10’. Importantly Mr Bloom records in his report dated 4 March 2021, marked power loss to the extensor hallicus longus which is the tendon which assists in dorsiflexion of the foot and ankle and raising the toe. He also noted loss of power in the peroneal tendons which provide stability to the ankle.
In addition to the medical evidence from the applicant’s health providers, I now turn to the reports from the independent medical examiners, Dr Patrick and Dr Powell.
Mr Tryon provided me with a comprehensive summary of the opinion expressed by
Dr Patrick. Having considered the evidence as a whole I accept the opinion presented by
Dr Patrick. In his report dated 15 November 2023, Dr Patrick has recorded weakness in the applicant’s left leg, an altered gait and a limp. Dr Patrick has also recorded numbness in the applicant’s left leg and left foot. Importantly Dr Patrick noted limited adduction of the left and right hips. Dr Patrick also noted limitations of movement in the left ankle/left hind foot with respect to plantar flexion extension and eversion. On the basis of his examination Dr Patrick assessed 12% whole person impairment of the lumbar spine, 1% whole person impairment re scarring, 2% whole person impairment in respect of the left lower extremity (left hip), 2% whole person impairment in respect of the right lower extremity (right hip) and 7% whole person impairment of the left lower extremity (left ankle and left hindfoot). This assessment was based on 3% impairment attributable to limitations in plantar flexion, 3% impairment attributable to limitations in extension and 1% impairment attributable to limitations in eversion.
In his supplementary report dated 9 July 2024, Dr Patrick has confirmed that there is a causal relationship between the original injury to the applicant’s lumbar spine and the symptoms he now experiences in his right and left hips and his left ankle and his left hindfoot. Dr Patrick bases his opinion on his experience as a general, vascular and trauma surgeon and also his many years’ experience as an independent medical examiner. In this respect I note that an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89]). As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and InvestmentsCommission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports. In this respect I reject the respondent’s submission that Dr Patrick’s reports do not comply with the principles established in the decision of Makita. Dr Patrick has relied on his many years’ experience to reach his opinion that the restrictions of movement and symptoms in the left and right hips and the left ankle/left hindfoot are causally related to the initial lumbar spine injury.
Dr Patrick has performed a thorough examination of the applicant and found “very limited adduction” in the left and right hips and limitations in the left ankle and the left hindfoot which he attributed to the injury to the lumbar spine.
On the evidence it is apparent that the applicant has had an altered gait since the original injury. There is no evidence to suggest that the applicant had an altered gait before the injury. I acknowledge that there is a gap in the treating medical evidence in relation to the period between 2022 and November 2023 (the attendance with Dr Patrick). I note however, the applicant returned to work in December 2021 and Dr Chow has noted that the applicant was highly motivated to return to work and provide for his family. Furthermore, following extensive physiotherapy and the surgical procedure performed by Dr Ow-Yang the applicant experienced some relief in his lower back pain. Dr Ow-Yang had advised the applicant that the damage caused by the L5 radiculopathy was likely to be permanent and despite resolution of the radicular pain following surgery the applicant was left with lower limb weakness and wasting of the left lower limb. Dr Ow-Yang also states that “there is never recovery of the wasting of the muscle" (see page 11 of the ARD). In the circumstances it is not surprising that the applicant did not seek further treatment in respect of the limitations of movement that Dr Patrick has identified in the applicant’s left and right hips and his left ankle/left hindfoot. The applicant had been advised by Dr Ow-Yang that the weakness he was experiencing in his left lower extremity would likely be permanent.
The report from Dr Powell dated 28 March 2024 is before me. The applicant did not specifically address me on the report of Dr Powell but rather relied on the comments made by Dr Patrick in his supplementary report dated 9 July 2024 in relation to the report from
Dr Powell (see page 258 of the ARD). Dr Patrick notes that he agrees with Dr Powell that the applicant has persisting features of left sided lumbar radiculopathy. Dr Patrick has provided separate assessments of whole person impairment in relation to the left and right hips and the left ankle/left hindfoot however Dr Powell opines that clinical examination of these joints was “unremarkable”. Dr Powell does however provide an additional 3% assessment to his assessment of the lumbar spine referable to the ongoing L5 radiculopathy. Dr Powell does not provide separate assessments in relation to the left and right hips and the left ankle/left hindfoot. Dr Powell noted a slight limp with a shortened stance on the left side. Dr Powell also recorded 1.5cm of thigh wasting but does not identify which thigh he is referring to. Dr Powell advises that his screen examination of the applicant’s hips, knees, ankles and sub talar joints was unremarkable. Dr Powell opines that the sensory changes and subjective weakness in the form of an activity related foot drop is related to the lumbar spine. Dr Powell states that there is “no history of any work-related injury to the hips or feet”.
The respondent submits that I should prefer the opinion expressed by Dr Powell over the opinion expressed by Dr Patrick.
I do not accept the opinion expressed by Dr Powell for the following reasons.
Dr Powell has not addressed the applicant’s claim that the left and right hips and the left ankle/left hindfoot are consequential injuries. On page 6 of his report, he states “there is no history of any work- related injury to the hips or feet”. (see page 6 of the Reply). It is clear from the applicant statement and medical evidence that the applicant did not injure his left and right hips and his left ankle/left hindfoot on 16 December 2020.
Dr Powell noted a slight limp but did not take a history from the applicant of his altered gait or symptoms in his left ankle/left hindfoot.
Dr Powell noted that his “Screen examination of the hips, knees, ankles and subtalar joints was “unremarkable”. It is unclear what Dr Powell meant by “unremarkable”. Dr Powell did not provide assessments of impairment in relation to the left and right hips and the left ankle/left hind foot.
Dr Powell has provided a detailed summary of his examination of the lumbosacral spine however apart from commenting that examination of the applicant’s hips, ankles and subtalar joints was “unremarkable”, he provides no measurements or detail about what tests he performed to reach his conclusion that his examination of the applicant’s hips, ankles and left hindfoot was “unremarkable”.
By providing an additional 3% whole person impairment in respect of the persisting left sided radiculopathy, Dr Powell has acknowledged that the applicant continues to experience pain and symptoms in his left leg. Despite this Dr Powell could find no evidence of any injury to the applicant’s hips and ankles. Dr Powell found restricted range of motion and persisting features of a left sided lumbar radiculopathy however Dr Powell does not identify what parts of the applicant’s left lower extremity have been impacted by the persisting symptoms of the left sided radiculopathy apart from “some sensory changes and subjective weakness in the form of an activity-related foot drop”.
Although I was not taken by either party to the definition of radiculopathy in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment and in particular part 4.27 dealing with radiculopathy, I have considered the definition. In applying the additional 3% whole person impairment to his assessment of whole person impairment of the lumbar spine, Dr Powell has not made a medical judgement but rather applied the amount prescribed for ongoing symptoms of radiculopathy prescribed by the Guidelines. Interestingly, the AMA Guides to the Evaluation of Permanent Impairment, 5th edition makes no allowance for radiculopathy. Dr Patrick confirms that he has provided separate assessments of whole person impairment for the left and right hips and the left ankle and left hindfoot based on his examination of the applicant and his findings of consequential injuries. Dr Powell states that his assessment of the hips and ankles was “unremarkable” and could find no evidence of injury. The respondent submits that the symptoms the applicant has in his hips and left ankle/left hindfoot should be considered part of the symptomology of the ongoing L5 radiculopathy still experienced by the applicant and by including the additional 3% whole person impairment in his assessment for the lumbar spine Dr Powell has addressed these issues. This is clearly incorrect as Dr Powell has found that on examination of the applicant’s left and right hips and left ankle and left hindfoot that there were no restrictions and described his findings on examination of those parts of the applicant’s body “unremarkable”.
Dr Powell found restricted range of motion and persisting features of a left sided lumbar radiculopathy however he did not identify what parts of the applicant’s body had restricted range of motion as a result of the left sided lumbar radiculopathy.
Dr Powell only consulted with the applicant once. In this regard his observations and examination of the applicant need to be compared to the clinical notes and reports from his treating practitioners which I have already referred to. It is not clear whether or not Dr Powell had available to him the clinical notes and reports from the applicant’s treatment providers.
For the reasons I have set out above I prefer the opinion of Dr Patrick over the opinion provided by Dr Powell.
Having determined that I prefer the opinion of Dr Patrick over the opinion expressed by
Dr Powell I now have to consider whether the applicant has provided me with sufficient evidence to overcome his onus to establish consequential injuries to the left and right hips and the left ankle/left hindfoot as a result of the initial injury to the lumbar spine sustained on 16 December 2020.

In accordance with the matter of Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) I need to feel a sense of actual persuasion that the applicant has met his onus on the balance of probabilities. In this regard the evidence only has to establish that it was more probable than not that the applicant has sustained consequential injuries to his left and right hips and left ankle/left hindfoot as a result of the injury he sustained to his lumbar spine which has resulted in persisting left sided lumbar radiculopathy.
In this respect the applicant’s clinical notes and reports have recorded an altered gait and permanent weakness and limitations in the left foot in dorsiflexion and eversion of the left ankle and extension of the left great toe.
In the circumstances I have no difficulty accepting Dr Patrick's opinion in finding that the applicant has met his onus in proving that he has developed consequential injuries and symptoms in his left and right hips and his left ankle/left hindfoot as a result of the injury he sustained to his lumbar spine on 16 December 2020. In line with the decision of Nguyen I confirm that I feel an actual persuasion in this regard.
Whilst it would have been preferable for the applicant’s treating doctors to have provided reports specifically dealing with the causation issues, the information and opinions expressed in their reports and clinical notes are helpful in providing the necessary evidence to support the opinion expressed by Dr Patrick in order for me to feel the necessary sense of actual persuasion that the applicant’s left and right hip symptoms and left ankle/left hindfoot symptoms are a consequence of the injury the applicant sustained to his lumbar spine on
16 December 2020. It would have been helpful if Dr Patrick had expressly provided his opinion in relation to causation rather than just providing a general opinion on causation based on his experience as an independent medical examiner and experienced general, vascular and trauma surgeon without specifically identifying the causal link in his summary. In the absence of this, it has been necessary for me to consider all of the evidence to be able to satisfy myself on the balance of probabilities that the findings on examination by Dr Patrick in his report dated 15 November 2023 and his opinion in relation to the consequential injuries to the applicant’s left and right hips and left ankle/ left hindfoot have resulted from the original lumbar spine injury. I am so satisfied. Despite the paucity of evidence in relation to the right hip I am also persuaded by the report prepared by Dr Patrick who provides his opinion as an experienced independent medical examiner and an experienced general, vascular and trauma surgeon. I agree with Dr Patrick’s opinion that it is not at all unusual or uncommon that the hips have been affected as a result of a lumbar spinal injury. The evidence concerning the applicant’s altered gait was largely unchallenged apart from a submission by the respondent that in the Commission we often see people who have developed other problems following a back injury but generally not hips. This is not my experience and I disagree with this submission.
It is clear that the applicant has experienced significant restrictions and symptoms in his left lower extremity for several years since the original injury on 16 December 2020. According to the decision in Moon all that the applicant has to establish is that he has symptoms and restrictions in his left and right hips and left ankle/left hindfoot which have resulted from the lumbar spine injury. The injury to the lumbar spine has set in train a series of events resulting in the consequential injury to the applicant’s left and right hips, left ankle and left hindfoot. Based on the evidence before me there is no break in the causal chain. I am satisfied that the applicant has developed consequential injuries to his left and right hips and left ankle and left hindfoot as a result of the injury to his lumbar spine on 16 December 2020.

SUMMARY

I find that the applicant has sustained consequential injuries to his left hip, right hip, left ankle /left hindfoot resulting from the accepted lumbar spine injury which occurred on
16 December 2020.
As a result of my findings, the applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the 16 December 2020 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, in order for that Medical Assessor to assess the level of the applicant’s whole person impairment in relation to his lumbar spine, right lower extremity (right hip) left lower extremity (left hip) left lower extremity (left ankle/left hindfoot) and scarring.

[2024] NSWPIC 554

4 October 2024