Robinson v Technamill Plc Pty Limited
[2021] NSWPIC 344
•13 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Robinson v Technamill PLC Pty Limited [2021] NSWPIC 344 |
| APPLICANT: | Neil George Robinson |
| FIRST RESPONDENT: | Technamill PLC Pty Limited |
SECOND RESPONDENT: | 2XM Recruit Pty Limited |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 13 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Claim for ongoing weekly benefits, section 60 of the Workers Compensation Act 1987 expenses and lump sum compensation in respect of separate injuries with separate employers; whether consequential left hip condition resulting from injury to right lower leg in the course of employment with the second respondent; Held - worker sustained a consequential left hip condition; matter remitted to President for referral to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant has sustained a consequential condition at the left hip as a result of the injury to his right calf on 17 May 2014. |
| ORDERS MADE: | 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 17 May 2014 Left lower extremity (hip) Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor are to include all documents admitted in these proceedings. 4. The matter to be listed for further teleconference upon receipt of the Medical Assessment Certificate to deal with the outstanding disputes. |
STATEMENT OF REASONS
BACKGROUND
Mr Neil George Robinson (the applicant) was employed by Technamill PLC Pty Limited (the first respondent) when he sustained an injury to his left groin on 28 August 2013. Liability for that injury was accepted by the first respondent’s insurer.
The applicant sustained a second injury, to his right lower leg, on 17 May 2014 whilst in the employ of 2XM Recruit Pty Limited (the second respondent). Liability for that injury was determined in the applicant’s favour in proceedings in the former Workers Compensation Commission.[1] The applicant claims that he has sustained a consequential condition affecting his left hip as a result of the injury on 17 May 2014.
[1] Workers Compensation Commission 3950/16.
The applicant made a claim for lump sum compensation in respect of the 17 May 2014 injury on 26 February 2021 in reliance upon an assessment of permanent impairment made by occupational physician, Dr Andrew Porteous, dated 20 September 2020.
The alleged consequential left hip condition and liability to pay lump sum compensation were disputed by the insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 April 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. The applicant seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with Dr Porteous’ assessment. In addition, the applicant seeks weekly compensation and expenses pursuant to s 60 of the 1987 Act in respect of both the first and second injuries.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 2 August 2021. The applicant was represented by Mr Paul Stockley of counsel, instructed by Mr Stephen Groves. The respondents were represented by Mr Tony Baker of counsel, instructed by Ms Naomi Tancred.
During the conciliation conference, the parties agreed that the Commission should determine the liability dispute with regard to the alleged consequential left hip condition prior to a referral of the 17 May 2014 injury to a Medical Assessor. Consideration of the applicant’s entitlement to weekly compensation and s 60 expenses would be deferred until the Medical Assessment Certificate was received to avoid the potential for inconsistent findings.
The matter proceeded to arbitration and submissions on the disputed left hip condition were made. Unfortunately, the respondents’ solicitor’s line became disconnected soon after the submissions commenced and she was not reconnected until after the primary submissions had been completed. To avoid any prejudice to the second respondent, I directed that a transcript of the proceedings be made available to the parties. A timetable was established for any further submissions to be served and lodged in writing. The parties were advised of my intention to determine the dispute at the conclusion of that timetable. No further submissions were received.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues are presently in dispute:
(a) whether the applicant sustained a consequential left hip condition as a result of the injury to his right lower leg on 17 May 2014, and
(b) the degree of whole person impairment resulting from the 17 May 2014 injury.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) Reply lodged by the second respondent and attached documents, and
(c) Reply lodged by the first respondent, admitted under cover of an Application to Admit Late Documents lodged on 2 July 2021, and all attachments.
Having regard to the vast volume of material in evidence and the existence of a separate dispute between the applicant and the first respondent, I indicated to the parties that for the purposes of determining the present disputes I would only take into account the evidence to which I was referred in submissions.
No party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 25 January 2016, 4 July 2016, and 5 February 2021.
First injury
The applicant described the injury to his left groin with the first respondent. The applicant said that he first experienced pain in the left groin region on 25 October 2010 when he was trying to find a conveyor belt drive shaft in a large box of drive shafts and was lifting and straining to move these big heavy items. This strain seemed to resolve fairly quickly and the applicant continued working his normal heavy duties.
The applicant experienced symptoms again on 9 June 2011 whilst lifting a heavy object and again on several occasions during 2012 and early August 2013. On 28 August 2013, the applicant was lifting a floor panel plate weighing approximately 20 or 30 kg when he again felt pain in his left groin. This time the pain did not go away overnight. When the applicant returned to work the next day, he was standing on a machine when he reached over to do some work and felt a sudden aggravation of the pain in his left groin.
The applicant went off work for about a week before returning to normal duties on 9 September 2013. At some stage, the applicant had another flareup of pain and consulted his usual general practitioner, Dr Peter Clarke at Penrith Medical Centre. The applicant was sent for an ultrasound and referred to surgeon, Dr Fardil Khaleal.
Dr Khaleal did not think the applicant required an operation at that stage. Dr Clarke referred the applicant for an injection which gave some relief.
On 4 February 2014, the applicant was moving heavy objects when he had a recurrence of the pain in his left groin area. The applicant was referred back to Dr Khaleal who requested and received approval to perform a laparoscopic hernia repair on 19 November 2014.
The applicant said that because of the injury to his right calf in the employ of the second respondent he was limping heavily and taking a lot of weight with his left leg around this time. The applicant started noticing the pain in his left groin again in January or February 2015. Through 2015 and into early 2016 the left groin pain got gradually worse. The applicant was referred for a further ultrasound on 28 April 2016, which found a recurrent left inguinal hernia.
On 12 September 2018, Dr Neil Halpin admitted the applicant to Holroyd Private Hospital for surgery described to the applicant as a lengthening procedure to his adductor longus tendon. The applicant found that the pain in his groin improved and he had less restriction of movement.
By about August or September 2019, the left groin was starting to become painful again. The applicant was referred back to Dr Halpin who, after reviewing an up-to-date ultrasound, told the applicant that he needed to repeat the previous surgery. The applicant was readmitted to the Holroyd Private Hospital for the further surgery on 4 December 2019.
The applicant had some initial benefit from the surgery but a few weeks later experienced an aggravation and was given a cortisone injection. The injection provided some temporary relief but the pain returned and the applicant was given a Platelet Rich Plasma (PRP) injection. This also provided some temporary relief.
At some stage after 23 April 2020, the pain in the applicant’s groin got worse.
Second injury
The applicant also described the injury to his right lower leg in the employ of the second respondent. The applicant was employed by the second respondent as a casual maintenance fitter.
The applicant noted that he had previously had some issues with pain and slight swelling in his right knee but did not recall any injury to his right knee. The knee had been investigated and arthroscopic repair of the right knee offered but the applicant could not afford to take time off work and did not do anything about it. The applicant had continued to perform his normal duties and his right knee was not that troublesome. The applicant’s work involved a lot of kneeling, squatting and climbing and most of the time the knee did not give him trouble. Between 2008 and 17 May 2014, the applicant did not have any treatment for the right knee. It was just a minor irritant which occasionally flared up.
On 17 May 2014, the applicant was standing on a conveyor attempting to pick up a large metal object weighing approximately 20 kg when he developed pain and weakness affecting the outside of his right knee and right lower leg. The applicant was unable to bear weight on his right leg due to the pain.
After a day of rest, the applicant continued to work for a further three days but found the pain in his lower leg gradually worsened. The applicant consulted Dr Clarke who noted that the applicant’s right knee was very swollen. The applicant was prescribed anti-inflammatories. The applicant was subsequently sent for an x-ray and then an ultrasound and referred for physiotherapy.
The applicant was eventually referred to Dr Sherif Rizkallah and underwent an MRI which revealed significant damage to the medial meniscus. Dr Rizkallah recommended surgery, liability for which was declined by the insurer. The applicant continued to undergo self-funded physiotherapy.
On 29 December 2014, the applicant was stepping out of his car after having lunch when he felt his right leg was going to give way. The area around the applicant’s upper calf below his right knee was extremely painful. The applicant continued to undergo physiotherapy but this made the problem worse.
On 17 January 2015, the applicant was referred for ultrasounds of his right lower leg. The applicant’s new general practitioner referred him to a new specialist, Dr David Abraham, who sent the applicant for an MRI and nerve conduction studies. Dr Abraham recommended ultrasound guided aspiration of a ganglion and cortisone injection into the right knee. This did not improve the applicant’s symptoms.
The applicant was also referred for investigations and injections to his lumbar spine.
A neurologist, Dr Simon Coffey, believed the applicant might have lower leg nerve problems. In August 2015, Dr Coffey performed a nerve exploration and removed a ganglion in the applicant’s right calf.
After a further MRI scan in September 2015, the applicant was referred to a new specialist, Dr Corey Cunningham. Dr Cunningham recommended PRP injections which improved but did not completely resolve the problem in the applicant’s right calf. Dr Cunningham taught the applicant certain exercises which the applicant commenced.
In his statement of 25 January 2016, the applicant said he continued to have weakness in his right calf, could not walk properly or push off his right foot. The applicant said he walked in a slightly strange fashion and could not walk very fast or very far. The applicant had great difficulty walking up or down stairs, on ramps or on rough or uneven ground. The applicant felt his right calf had wasted and was not as big as his left calf.
In the same statement, the applicant described developing pain in his left hip which he felt was secondary to limping and taking all of his weight on his left leg. The applicant was being treated by his general practitioner for his left hip problem.
In his statement of 5 February 2021, the applicant stated that the injections recommended by Dr Cunningham gave the applicant temporary improvement in his right calf but he subsequently went backwards and the calf became extremely painful again. The pain would be exacerbated by factors such as standing, walking and driving. The condition would regularly fluctuate up and down in severity.
The applicant was referred by his general practitioner to the Western Sydney Pain Centre and came under the care of Dr Sushama Deshpande. Dr Deshpande referred the applicant for physiotherapy and pulsed radiofrequency procedures. Liability for this treatment was declined by the insurer. The applicant was approved by the second respondent’s insurer to see an exercise physiologist for one visit and funded further visits himself. The applicant found the exercises and stretching shown to him by the exercise physiologist to be beneficial.
On 23 January 2018, the applicant was admitted as a day patient to undergo a right sciatic nerve block procedure performed by Dr Deshpande. The nerve block made no difference to the applicant’s pain. The applicant also underwent hydrotherapy between December 2017 and April 2018.
The applicant was eventually referred to an orthopaedic surgeon, Dr Yasser Khatib who referred the applicant for nerve conduction studies.
In mid-March 2019, Dr Halpin gave the applicant a cortisone injection into his right calf with no improvement in symptoms.
In mid-March 2019 the applicant also saw Dr Noel Dan, who referred the applicant for further nerve conduction studies.
In approximately September or October 2019, the applicant started developing pain in his left hip and left hamstring. The applicant was referred by his general practitioner for an ultrasound of the left hip which showed left hip bursitis and hamstring tendinosis. The applicant attributed the problems at his left hip to changes in his gait in order to avoid standing on his right leg due to the injury to his right calf. The applicant said he limped on his right leg, putting strain on his left hip and left upper leg.
The applicant said he continued to have quite strong pain in his right calf region. The applicant found it very difficult to load bear and put more weight on his left side.
Relevant treating medical evidence
45.On 30 July 2014, orthopaedic surgeon, Dr Sherif M Rizkallah wrote to the insurer indicating that he had examined the applicant in relation to an injury to his right knee in the course of employment on 17 May 2014. Clinical examination demonstrated an obvious limp. The knee had moderate effusion. Plain x-rays and MRI scans demonstrated the presence of a medial meniscal tear. The applicant was offered a right knee arthroscopic meniscectomy and chondroplasty.
46.Orthopaedic surgeon, Dr Simon Coffey saw the applicant on 29 May 2015 in relation to right lower limb pain beginning in May 2014. Dr Coffey noted that the applicant’s pain had been difficult to define. Dr Coffey considered the applicant suitable for exploration of posterior tibial nerve in the right lower limb.
47.The report of an x-ray and ultrasound of the left hip dated 3 July 2015 said there was no evidence of hip joint effusion, no suggestion of trochanteric bursitis and the gluteal tendons were unremarkable.
48.Sport and exercise medicine physician, Dr Corey Cunningham prepared a report for the applicant’s general practitioner on 7 October 2015. Dr Cunningham took a history of the injury on 17 May 2014 as follows:
“He felt immediate pain in the lateral aspect of his right knee and calf, followed by difficulty weight bearing and walking. Over the last 15 months, Neil has continued to experience significant symptoms despite anti-inflammatories, lots of physio treatment. hydrotherapy, cortisone injection into the cyst identified as coming from the proximal tib fib joint and surgical exploration of CPN as well as excision of the proximal tib fib ganglion.”
49.The applicant’s present symptoms were described:
“At present, he describes constant ache in the lateral gastroc region extending down the proximal fibula and difficulty walking, predominantly due to the combination of muscle weakness and inability to straighten the knee.”
50.Dr Cunningham noted on examination that the applicant was unable to comfortably single leg weight bear through the right leg. There was mild wasting of the right calf and tenderness over the lateral gastroc. Dr Cunningham recommended PRP injections.
51.An ultrasound of the right calf dated 23 June 2016 was reported to show a slightly smaller but incompletely healed lateral gastrocnemius myotendinous tear.
52.On 13 October 2016, Dr Cunningham reported that the applicant’s right calf pain was well-controlled although weakness in walking, stairs, accelerating and getting in and out of the car was the main issue. It was noted that the applicant had been seen at the Pain Clinic in Penrith. Dr Cunningham noted that he had seen a current MRI scan of the hip/pelvis in light of ongoing groin pain. Dr Cunningham said clinically he would be concerned about intra-articular hip pathology and would suggest hip joint cortisone injection for diagnostic and probably therapeutic purposes.
53.On 18 January 2017, Dr Sushama Deshpande reported that the applicant had been troubled with persistent, long-standing right calf pain since the injury in 2014. Several interventions and medication had not helped improve the pain. Dr Deshpande gave the opinion that the applicant had developed a pain disorder secondary to the persistent pain including nociception and central sensitisation. There was a significant amount of fear avoidance, passive coping strategies and stressors related to the injury and pain.
54.On 19 January 2017, Dr Cunningham reported that the applicant continued to struggle with posterior lateral right calf pain:
“There is a constant background ache and any attempt at walking or calf strength exercises simply flares up his pain. He has quite limited mobility throughout the day with walking tolerance <50m.”
55.Dr Cunningham noted that pain was the main ongoing limiting factor, consistent with the regional pain syndrome. It was noted that there was no wasting through the calf.
56.On 20 April 2017, Dr Cunningham reported:
“On examination, he walks with a slow antalgic gait. There is tenderness in the same position over the lateral gastroc and proximal fibula about 10cm distal to the knee joint. There is no tenderness along the lateral knee joint or proximal tib fib joint. He is unable to perform a single leg heel raise.”
57.An MRI of the right calf dated 18 June 2018 noted:
“Atrophy and some fatty replacement of all calf muscles, especially the medial and lateral gastrocnemius without associated tears”.
58.The applicant was seen by orthopaedic surgeon, Dr Yasser Khatib on 16 July 2018. On examination, Dr Khatib noted:
“Neil has a fixed flexion deformity of the right knee, which is likely secondary to his background of degenerative arthritis with the knee range of motion measuring between 10-115°. He does not have any significant atrophy of the right calf, which measures 40.5 cm in girth a hands breadth distal to the tibiofibular joint line. This measurement is exactly the same on the left side.”
59.Dr Khatib gave the opinion:
“His main problem remains with tightness in the calf and lateral aspect of the leg which sports and exercise medicine physician, Dr Neil Halpin reported on 26 September 2018 that the applicant had undergone left-sided adductor surgery at Holroyd Private Hospital. Affects him at various points, including at rest and during walking. He has difficulty lying on his right side due to irritation of the lateral aspect of his right leg, which occasionally becomes very severe to the point where he has required ambulance treatment.
The only significant cause of Neil's pain that I can find on today's assessment, remains with possible irritation of the gastrocnemius myotendinous junction.”
60.Sports and exercise medicine physician, Dr Neil Halpin, reported on 26 September 2018 that the applicant had been admitted to Holroyd Private Hospital that day for left-sided adductor surgery.
61.On 15 April 2019, Dr Halpin referred the applicant to neurologist, Dr Noel Dan.
62.On 16 April 2019, Dr Dan, examined the applicant and noted:
“Examination revealed he is a big man with the right calf smaller than the left. His ankles and feet were quite oedematous. Straight leg raising was unremarkable on the left and at 60 degrees caused calf tightness on the right. Lower limb power was intact. The reflexes were all soft but symmetrical. Pin prick was reduced down both feet and legs consistent with peripheral neuropathy. There was a scar at the upper posterolateral right leg consistent with his surgery.”
63.In a further report on 21 May 2019, Dr Dan noted that the applicant had evidence of generalised sensorimotor neuropathy and was being seen by a cardiologist.
64.An ultrasound of the left hip on 5 June 2019 was reported to show a partial tear of the left adductor tendon at its pubic bone insertion site and a small indirect fat containing partially reducible left inguinal hernia.
65.An MRI of the left hip on 20 June 2019 showed bilateral adductor longus tendinopathy and features of gluteal minimus tendinopathy with trochanteric bursitis.
66.On 2 September 2019, Dr Halpin reported that the applicant had undergone corticosteroid and local anaesthetic injections into his hip joints on both sides with very good relief of pain. Dr Halpin stated:
“You will recall that I performed left-sided adductor surgery on Neil on 26-9-2018. On clinical grounds I thought there was little doubt that his pain was due to an adductor enthesopathy and he was very much better for 1-2 months afterwards. His pain has slowly returned and he told me that if anything he is actually worse than he was prior to surgery. He has had an ultrasound and MRI scan and these have been in my opinion over reported indicating tears of adductor longus. These are post-operative changes because the operation itself is a partial tenotomy/lengthening procedure which will give the appearance of a tendon tear.
The commonest cause of recurrence of pain after this operation is scarring and/or calcification of adductor longus at the operation site, and I warned Neil prior to surgery that this occurs in something between 3-5% of patients. If his symptoms are persistent surgical revision may be required.”
67.Dr Halpin saw the applicant again on 24 October 2019 in relation to the left groin injury. In a report to Dr Khaleal, Dr Halpin noted that when he first saw the applicant he had an antalgic gait and was markedly tender at the pubic origin of the adductor longus. Dr Halpin expressed the view that the applicant’s continuing symptoms were again suggestive of adductor enthesopathy the likely cause of which was scarring at the operation site. Dr Halpin could find no other cause for the applicant’s symptoms. Dr Halpin suggested surgical revision would be the applicant’s best option.
68.The surgical revision was eventually performed on 4 December 2019 and, on 20 December 2019, Dr Halpin reported that the applicant was “essentially pain-free”.
69.A left hip ultrasound performed on 12 November 2019 showed evidence of trochanteric bursitis and thickening at the ischial insertion of the hamstring with focal tenderness in keeping with tendinosis.
70.On 6 February 2020, Dr Halpin noted that the applicant had been given a corticosteroid injection into his left adductor longus two weeks previously which resulted improvement in the order of 80 to 90%. The applicant still had little pain along the line of the adductor longus but was overall very much better. On 19 February 2020 the applicant was given a PRP injection by Dr Halpin for continuing left-sided groin pain.
71.A further ultrasound of the left hip performed on 25 February 2020 was reported to show:
“Evidence of moderate degree of trochanteric bursitis. Normal gluteus tendon. Patient has been booked for ultrasound guided injection for a subsequent date”.
72.On 11 March 2020, Dr Halpin reported that he had seen the applicant regarding his left leg:
“He has continuing symptoms as before. He has an antalgic gait, he has moderate peripheral weakness. His level of pain is variable but on balance stable, and he reports being no better or worse than when I first saw him.”
73.In report dated 12 March 2020, Dr Halpin reported to the applicant’s general practitioner stating:
“I understand that you are treating him for trochanteric bursa for which he had another injection last week. He certainly has had relief from these. I do not believe that this is directly related to his groin pain.”
74.On 22 July 2020, Dr Cunningham saw the applicant again in relation to left groin pain. On examination, Dr Cunningham noted:
“On examination Neil walks with an antalgic gait trendelenburg gait. Left hip flexion range is 100·, IR 30 and ER 30. Quadrant loading reproduces both groin and adductor pain. The main finding is tenderness ++ around the adductor longus insertion with prominent adductor spasm. The wound site looks excellent. His strength on testing resisted adduction is only slightly reduced. Clinically, the cause of Neil's chronic pain is uncertain but there is definitely an element of central sensitisation, peripheral neuropathy as well as the adductor enthesopathy.”
Arbitrator Sweeney’s Certificate of Determination
A Certificate of Determination prepared by Arbitrator Sweeney in relation to the 17 May 2014 injury was issued by the former Workers Compensation Commission on 3 November 2016.
Arbitrator Sweeney found the applicant sustained an injury in the nature of a tear of the right calf muscle and aggravation of a pre-existing ganglion and osteoarthritis in his knee. The effects of the injury to the applicant’s right knee including the ganglion had ceased by 28 July 2014. The applicant was found to have been partially incapacitated for work as a result of the injury to his right calf muscle from 17 May 2014 to date and continuing.
Historical medicolegal reports
There are a number of historical medicolegal reports in evidence relating to both the first and second injuries.
Dr Richard Deveridge prepared a report for the applicant’s solicitors on 2 June 2016 in relation to the 17 May 2014 injury. Dr Deveridge took a history of the injury and subsequent treatment which was consistent with the applicant’s statement evidence. On physical examination, Dr Deveridge noted:
“He walked without an obvious limp, he could perform heel and toe walking and perform a near complete squat. He was able to step up confidently taking full weight on the right leg.
There is a 6.5cm surgical scar on the lateral calf just below the knee joint (site of ganglion excision). The scar has some trophic and pigmentary changes. There is significant calf muscle wasting with girth reduction of 2.1cm compared to the contralateral limb (distal thigh girth measurements were equal, an observation which tends to support your client's contention that the pain was not arising from his arthritic right knee joint).
The right knee has a reduced range of motion from 5° to 130° (compared with 0° to 140°on the left). McMurray's sign is equivalent for the medial joint compartment.”
Dr Deveridge gave the opinion that the applicant had a pre-existing extensive tear of the medial meniscus as well as degenerative osteoarthritis at the right knee as demonstrated on a 2008 MRI scan. The applicant also had a complex ganglion in the right calf muscles with an area of calcification indicating that it was long-standing as seen on the MRI scan of 2008.
Dr Deveridge considered there may have been a temporary aggravation of the right knee condition by the work injury, gastrocnemius lateral belly tear and aggravation of a pre-existing ganglion condition.
Dr Deveridge said the applicant had multifactorial incapacity for work, stemming from the non-work related right knee joint arthritis and derangement, left groin hernia, as well as the calf muscle tear which had resulted in ongoing calf pain and weakness.
Dr Deveridge prepared a further report on 13 July 2017, in which he noted the further treatment of the applicant’s injuries. On examination Dr Deveridge noted:
“He had some mild right sided antalgia. He could perform a three quarter squat. Right calf - scarring is still conspicuous and disfiguring. He still has moderate right calf muscle wasting with mid-calf girth measurement reduced by 2.1 cm compared to the left leg (there was no significant thigh muscle wasting).”
Dr Deveridge again considered that the applicant’s incapacity for work related to the combination of his left groin and right calf injuries.
General surgeon, Dr Neil Berry, prepared a report for the applicant’s solicitors in relation to the first injury on 12 September 2016. Dr Berry noted the second injury to the right leg. It was noted that the applicant underwent surgery to his right knee by Dr Simon Coffey but this had not helped the applicant’s right calf. The applicant described right calf pain coming on after virtually any activity. The applicant then massaged the calf and the pain would ease.
Dr Berry prepared a further report on 7 December 2020. The applicant reported pain down the outside of his right leg into the foot all of the time. The applicant was unable to straighten the leg properly and was always subject to severe pain on walking for a few minutes.
Dr Berry indicated that he had not seen any imaging to confirm any osteoarthritis in the hips and the applicant did not show any limitation of hip movement upon examination as would be expected if there was significant symptomatic arthritis. The applicant was tender in the left adductors.
On 16 April 2019, occupational physician, Dr Andrew Keller, prepared a report for the insurer in relation to the first injury. Dr Keller also noted the second injury. The applicant’s presenting complaints were described at that time as:
“Mr Robinson reports he experiences left hip weakness. There is intermittent left hip pain rated up to 5 out of 10 in intensity. It is aggravated by prolonged driving or standing. He al reports constant right calf pain and altered sensation with increased sensitivity in the right foot.”
Upon examination, Dr Keller noted:
“He was observed to walk with a marked limp favouring putting weight on the left side to avoid straining the right calf.”
Dr Keller’s examination of the left hip revealed a full range of motion, symmetrical with the right side. There was some left groin tenderness. Inspection of the right calf was normal although the applicant reported increased sensitivity in the right calf and foot to light palpation.
Orthopaedic surgeon, Dr Anthony Smith prepared a report for the insurer on 1 July 2020 in relation to the first injury. Dr Smith performed an examination of both hips and gave the opinion:
“In essence, it would appear that this man is complaining of intermittent groin pain, which is more marked on the left than the right. He has, on clinical examination, a restriction in the range of movement of both hips and also both knees. On clinical grounds, it appeared to me that he has bilateral hip arthritis and bilateral knee osteoarthritis.”
Dr Porteous
The applicant relies on medicolegal reports prepared by occupational physician, Dr Andrew Porteous, dated 16 January 2019, 29 April 2020 and 20 September 2020.
In his first report, Dr Porteous took a history of an injury to the applicant’s right knee and right leg. The applicant underwent exploratory surgery on 5 August 2015 to decompress the common peroneal nerve and excise a posterior lateral ganglion. The surgery by Dr Coffey did not make any significant difference. A tear in the lateral gastrocnemius in the posterior lateral proximal calf area was subsequently diagnosed following MRI scan. The applicant saw Dr Cunningham and had PRP injections into the area with improvement in symptoms. More recent MRIs indicated that the tear in this area had resolved.
Dr Porteous noted that there were marked degenerative changes in the medial compartment of the right knee but the applicant’s ongoing pain was not related to this.
The applicant had ongoing chronic pain for which he had been referred to a pain clinic:
“Currently, Mr Robinson said he has right lateral proximal foreleg pain at the inferior aspect of the surgical scar rated 8/10 to 9/10 on a pain scale for the last two weeks with it generally around 5/10 to 9/10. He said sometimes the pain is felt in the posterior lateral aspect of the proximal foreleg. He said he gets intermittent tightness in the right calf. The pain increases after walking 10 to 20 metres and after standing for one or two minutes. It increases after sitting or driving for five to ten minutes, and he has to stop and get out and move around for a bit.”
Dr Porteous noted that the applicant had a history of chronic left anterior medial groin pain since straining at work on 28 August 2013 and had undergone surgery to release the left adductor on 26 March 2018.
The applicant reported that he had developed some left lateral hip area pain approximately one month ago which had been diagnosed by a physiotherapist as being due to a gluteus maximus insertion strain.
Dr Porteous noted on examination that the applicant had an antalgic gait limping on the right leg.
Dr Porteous made a diagnosis as follows:
“The diagnosis is a right proximal foreleg common peroneal nerve injury on 17 May 2014 in the course of his employment with subsequent surgery for exploration of this that resulted in aggravation of the nerve and the substantial increase in the pain symptoms in this area. In line with the subsequent MRI scan, there was also a tear in the proximal myotendinous junction of the right lateral gastrocnemius in the foreleg in the posterior lateral proximal calf area, with a latter scan indicating this had resolved, as expected.”
Dr Porteous made an assessment of whole person impairment resulting from the calf injury. Dr Porteous found no impairment for unilateral wasting. The applicant had restriction of right knee flexion, limited ankle associated muscle function and restricted ankle movement, resulting in 24% whole person impairment.
In his supplementary report, dated 29 April 2020, Dr Porteous noted:
“He reports a new ongoing pain in the lateral hip area diagnosed as a left hip trochanteric bursitis, despite having had injections into this. He reports ongoing aching pain in the left hamstring in the area of the left tensor fascia lata sprain and on the lateral left thigh in the area of the left iliotibial band.
…
He had subsequently gone on in 2019 to have diagnosed left and right trochanteric bursitis, left hamstring tendinosis, left tensor fascia lata sprain and iliotibial band inflammation on the left having had three Cortisone injections into the left hip bursa and one into the right bursa.”In his final report, dated 20 September 2020, Dr Porteous found the applicant’s examination was consistent with a left hip bursitis. The applicant said he had ongoing left area hip pain since 2013.
Dr Porteous offered the opinion:
“A left hamstring tendinosis, a left tensor fascia lata sprain and left iliotibial band pain are consistent with his symptoms and would all contribute to the chronic left hip area pain, and these are reasonable diagnoses. These, in my opinion, are separate to the prior left groin adductor injury.”
With regard to causation, Dr Porteous stated:
“In my opinion, favouring the right foreleg with its considerable chronic pain would have led to altered gait. This would have resulted in altered left hip and associated soft tissue function and a degree of abnormal strain and extra use.
It is more likely than not that further soft tissue injuries occurred including aggravation of bursitis, aggravation of left hamstring tendinosis, aggravation of a left tensor fascia lata sprain and aggravation of the left iliotibial band have resulted from the right leg injuries and are consequential.”
Dr Porteous assessed the applicant as having 26% whole person impairment including 3% whole person impairment for the left hip trochanteric bursitis.
Dr Wallace
The respondent relies on a series of medicolegal reports prepared by orthopaedic surgeon, Dr Raymond Wallace, dated 28 July 2014, 27 March 2017, 15 May 2019, 4 August 2020 and 29 March 2021.
In his first report, Dr Wallace took a history of injury to the right knee on 17 May 2014. The applicant disclosed episodic right knee pain over the previous two years requiring review by his local medical officer but no treatment. The applicant’s present complaints were described as:
“He notes no current pain at the right knee, but intermittent aching pain at the posterior aspect of the right upper calf. The pain is worse with walking, and is relieved by remedial massage.”
Dr Wallace’s examination revealed:
“His calf circumference measures 40cm on the right, compared to 41cm on the left. His right calf shows no swelling or deformity. There is some tenderness at the middle third of the calf at its medial aspect.
He walks with some 10° flexion at the right knee, with a slightly antalgic gait on the right side.”
Dr Wallace gave the opinion that the work-related right knee injury of 17 May 2014 had resolved and there was no current pain at the right knee. The applicant’s residual knee disability was due to pre-existing symptomatic degenerative tricompartmental osteoarthritis at the joint. Dr Wallace noted that there was also evidence of a degenerative ganglion, posterior to the head of the fibula, containing intra-articular loose bodies, which he said was not related to the work incident of 17 May 2014.
In his report of 27 March 2017, Dr Wallace noted that the applicant’s present complaints were:
“Mr Robinson now complains of a constant aching pain at the lateral upper gastrocnemius muscle of the right calf which is worse with stair climbing, walking distances or any activity and is relieved by lying down with his right leg elevated.”
On examination, the applicant had a calf circumference of 40 cm bilaterally. The applicant was noted to walk with an antalgic gait on the right side only partially weight-bearing on the right foot.
Dr Wallace diagnosed the 17 May 2014 work injury as consisting of a minor temporary aggravation of pre-existing degenerative tricompartmental osteoarthritis of the right knee which had now resolved and a tear of the distal lateral gastrocnemius myotendinous junction at the right calf. Dr Wallace accepted that the current right calf symptoms were due to the work injury of 17 May 2014.
Dr Wallace noted that it was now some three years post injury and said it was highly unlikely that further formal conservative treatment would lead to a durable reduction in the level of symptoms or increase in function at the right calf.
In his report of 15 May 2019, Dr Wallace noted that the applicant had continued with the use of medications including Panadol, Targin and Cymbalta since his last review with the applicant. In 2019, the applicant attended self supervised hydrotherapy twice a week. There had been an adductor release at the left hip by Dr Halpin in September 2018.
The applicant had no pain at the right knee, a constant aching pain at the right calf worse with walking long distances, shopping, driving or prolonged activity. The applicant complained of weakness at the right calf.
On examination, the calf circumference measured 40 cm on the right compared to 42 cm on the left. The applicant walked with a bilateral antalgic gait.
After reviewing further investigations, Dr Wallace gave the opinion:
“He has no evidence of ongoing pathology at the right calf on recent investigations including MRI investigation of the right calf carried out on 18 June 2018 and Ultrasound of the right calf carried out on 3 April 2019.
He does have evidence of severe bilateral lower limb neuropathy on Nerve conduction studies carried out on 16 August 2018.
His work-related right leg injury of 17 May 2014, some 5 years ago, has resolved.
His employment with 2XM Recruit Pty Ltd is not a substantial contributing factor to any current right leg condition.”
In the report dated 4 August 2020, Dr Wallace noted that the applicant’s present complaints were:
“Mr Robinson’s right knee symptoms have resolved. At the right calf, he notes intermittent sharp pain at the lateral and posterior aspects of the right calf at the junction at the upper and middle thirds. The pain has no precipitating factors and is relieved by medication.”
On examination, the applicant’s right calf circumference measured 39 cm compared to 41 cm on the left. The applicant was noted to walk with a slight bilateral limp. Dr Wallace reiterated his previous opinion:
“As detailed in my previous medico-legal report of 15 April 2019, Mr Robinson's right knee condition has resolved. He complains of no current symptoms at his right knee. There is no evidence of ongoing pathology at his right calf on investigations carried out to date or on clinical examination at the time of review on 30 July 2020. His current complaints of ongoing right calf symptoms cannot be explained on the basis of any known pathology in relation to his work incident some 6 years ago on 17 May 2014.”
In his final report, dated 29 March 2021, Dr Wallace recorded the applicant’s present complaints as:
“At the left hip he now complains of intermittent aching pain at the left anterior and superior iliac crest accompanied by pain at the left abductor tendon medially. He describes the pain as an intermittent ache which is not present on a daily basis. The pain is worse on standing or walking and is relieved by lying down.
He notes no paraesthesia, numbness or weakness at his left leg. He notes no stiffness at his left hip. He notes no current symptoms at his right knee.
At the right calf he notes sharp pain at the lateral aspect of the right calf radiating to the upper posterior right calf. The pain is worse on standing or walking and is relieved by lying down. He notes no swelling at the right calf.”
Dr Wallace’s examination showed a reduced calf circumference on the right by 2 cm compared to the left. The applicant was noted to walk with 20° fixed flexion at the right knee.
Dr Wallace again expressed the view that the applicant’s work-related injuries at his right knee and right calf had resolved. With regard to left hip bursitis as assessed by Dr Porteous, Dr Wallace expressed the opinion:
“Mr Robinson had no evidence of greater trochanteric bursitis of the left hip on clinical examination at the time of review on 9 March 2021.
In particular, he had no evidence of tenderness at the trochanteric bursa at the left hip at that time. There was no evidence of any significant abnormality of his left hip on clinical examination. There was no objective medical evidence that Mr Robinson has suffered a consequential injury at the left hip as a result of his previous right leg injury.
His previous work-related injury at the right leg in May 2014 has resolved.
I refer you to the AMA Guides for the Evaluation of Disease, Injury and Causation, 2nd Edition, page 769 which states one unsupportable myth is that favouring one lower extremity will often result in the illness or injury in the opposite lower limb. Studies related to poliomyelitis noted that ‘The force transmitted in the affected lower extremity was reduced but the force in the opposite limb was the same as in normal individuals. There is no medical scientific basis for the notion that an injury to one lower limb may cause an injury in the opposite normal lower limb.’
Mr Robinson noted some tenderness at the anterior aspect of the left hip below the iliac crest which may relate to an underlying unrelated hernia.”
Applicant’s submissions
Mr Stockley submitted that the only direct expressions of opinion relevant to the issues in dispute were contained in the reports of Dr Porteous and Dr Wallace.
Mr Stockley referred to the opinion on causation given by Dr Porteous in his report of 20 September 2020, that favouring of the right foreleg with its considerable chronic pain would have led to altered gait. This would have resulted in altered left hip and associated soft tissue function and a degree of abnormal strain and extra use.
The chronic pain referred to by Dr Porteous was that reported by the applicant as a result of the injury with the second respondent in May 2014, which had been described as a soft tissue strain and peroneal nerve injury to the right calf.
The symptomatic consequences of that injury had continued for several years.
Opposed to Dr Porteous’ opinion were the opinions of Dr Wallace annexed to the Reply. In summary, Dr Wallace confirmed a right calf injury caused by work. Dr Wallace later concluded that the calf tear had resolved and the applicant’s symptoms could no longer be explained. With regard to the allegation of a consequential left hip condition, Dr Wallace concluded that the right calf injury had resolved and there was no evidence of trochanteric bursitis in the left hip.
In considering the underlying assumptions on which the conclusions of Dr Porteous and Dr Wallace were based, Mr Stockley noted that Dr Porteous observed at his examination on 16 January 2019 that the applicant had an antalgic gait.
The applicant described protecting his injured right leg. The applicant’s account was not conclusive but was relevant in considering when the symptom complex arose. The Commission would otherwise have regard to the clinical history. The applicant himself considered there was a connection between the left hip symptoms and the right leg injury.
There were other references to right calf symptoms causing a limp in the report of Dr Keller in April 2019. The applicant was observed to walk with a marked limp putting weight on the left side to avoid straining the right calf. This constituted incidental confirmation of gait derangement which was presumed by Dr Porteous to be the mechanical cause of the symptoms in the left hip.
In addition to Dr Wallace’s conclusion that there was no symptom complex in the right calf attributable to the injury, Dr Wallace also expressed an opinion that there was no such thing as a lower limb consequential condition. In his report of 29 March 2021, Dr Wallace referred to the AMA Guides for the Evaluation of Disease, Injury and Causation, 2nd Edition, in support of his view that there was no medical scientific basis for the notion that an injury to one lower limb may cause an injury in the opposite normal lower limb.
In giving this opinion, Dr Wallace dismissed the proposition that there was evidence of pathology or significant abnormality at the left hip. Mr Stockley submitted, however, that the applicant’s case was not that he sustained significant pathology as a result of the right leg injury but rather that the hip was rendered symptomatic. A complaint of symptoms was sufficient to establish a consequential condition.
Mr Stockley submitted that it was not clear what Dr Wallace meant when he referred to an absence of objective medical evidence. Dr Wallace’s reference to the AMA Guides was unsatisfactory as its scientific credibility or utility was not identifiable. There might be other expressions of opinion from other academics contrary to the opinion on which Dr Wallace relied. This reference would not assist the Commission unless there was greater insight into that document and its status.
Mr Stockley submitted that this reference to the AMA Guides appeared in every recent opinion he had seen from Dr Wallace. Dr Wallace had formed the academic conclusion that the type of mechanism on which the applicant relied did not exist. Clearly, Dr Porteous and a body of other practitioners were of the opinion that it did exist. Mr Stockley submitted that the Commission would use its own intuition together with the expert and lay evidence to make a determination.
Mr Stockley referred to the decision of EMI (Australia) Ltd v Bes[2]. The applicant’s case was that the mechanism had a plausible and logical basis. On the balance of probabilities, the necessary nexus was made out.
[2] [1970] 2 NSWR 238.
Mr Stockley noted that the question of consequential condition was considered in Kumar v Royal Comfort Bedding[3], which differentiated between causation for an injury and causation for a consequential condition. Reference was also made to the commonsense test in Kooragang Cement Pty Ltd v Bates[4].
Second respondent’s submissions
[3] [2012] NSWWCCPD 8.
[4] (1994) 10 NSWCCR 796 at [810].
Mr Baker submitted that the Commission would not be satisfied that the relevant onus was discharged on the opinion provided by Dr Porteous. Mr Baker noted that Dr Porteous was an occupational physician rather than an orthopaedic surgeon like Dr Wallace. Dr Wallace used his clinical examination and experience as an orthopaedic surgeon in coming to his conclusion in addition to the academic opinions.
Mr Baker observed that a number of statements had been provided over time by the applicant in relation to the May 2014 injury, the earlier left groin injury and his general body condition.
Mr Baker noted the applicant’s evidence that on 12 September 2018, Dr Halpin admitted him to the Holroyd Private Hospital for surgery which he described as a lengthening procedure to the adductor longis tendon in his left groin. This surgery related to the separate first injury.
The applicant gave evidence that his left groin became painful following the surgery. The applicant returned to see his general practitioner and was referred back to Dr Halpin and underwent a repeat surgery by Drs Khaleal and Halpin on 4 December 2019.
The applicant got some benefit from the surgery then suffered a further non-work related aggravation leading to PRP injections. The applicant was certified totally unfit and the pain in the groin later got worse. Dr Smith thought the applicant suffered congenital issues (hip and knee arthritis).
Mr Baker noted that the applicant was at pains to say he had no issues in relation to the left hip previously. The applicant suggested that there was nothing wrong with the hip but his incapacitating symptoms were all to do with the groin. Mr Baker submitted that the evidence in the applicant’s statement was inconsistent with the assumptions made by Dr Porteous.
The first mention of a left hip condition was in Dr Porteous’ reports. Dr Porteous’ opinion was predicated on the assumption that there were long standing issues at the right leg. Whilst the applicant may have been limping at examinations in 2019, Mr Baker submitted that the issue needed to be looked at historically.
Mr Baker referred to the proceedings which resulted in the Certificate of Determination issued by Arbitrator Paul Sweeney in November 2016, about 2.5 years after the injury in May 2014. The determination made by Arbitrator Sweeney was that the effects of the injury to the right knee had ceased and that the applicant was partially incapacitated.
The medical evidence at the time of Arbitrator Sweeney’s determination included a medicolegal report prepared by Dr Richard Deveridge, dated 2 June 2016, which referred to the applicant walking without an obvious limp, being able to perform heel and toe walking and step up confidently taking full weight on the right leg. Mr Baker noted that this was two years after the event and significant information.
Mr Baker referred to the MRI taken on 9 September 2008 and the x-ray taken on 29 May 2014. The applicant had a very significant disruption to the right knee in 2008 demonstrated on MRI and x-ray in 2014. No history of this was provided to Dr Porteous. The history provided to Dr Porteous was manifestly inadequate.
Dr Deveridge considered that the right knee condition was pre-existent but there may have been a temporary aggravation by the work injury. Dr Deveridge did not consider that a right knee arthroscopic surgery was required as a consequence of the subject injury. The applicant’s incapacity stemmed from the non-work related right knee joint arthritis and derangement, the left groin hernia as well as the work-related calf muscle tear which had resulted in ongoing calf pain and weakness.
Mr Baker submitted that this opinion was significant. If the applicant had restrictions in the right knee presumably it was the ongoing degenerative change in the knee which may be causing the altered gait. Dr Porteous did not have that history.
Mr Baker noted that the medicolegal report of Dr Berry dated 12 September 2016 was prepared after the arbitral decision. Dr Berry noted that the applicant’s calf pain appeared to resolve with simple massage. Upon examination, Dr Berry noted that the applicant moved with normal posture and gait although he did indicate that he was experiencing discomfort in the left groin. No complaint was made with regard to the right calf. The examination showed tenderness at both hips. There was normal range of knee movement and normal range of ankle movement. Mr Baker submitted that there was no evidence of a consistent limp after right calf injury.
In relation to the first injury, the applicant underwent surgery in in 2018. Dr Halpin reported that the applicant was very much better for one to two months afterwards before his pain slowly returned and became worse. Dr Halpin said the commonest cause of recurrence of pain after this operation was scarring and/or calcification of the adductor longus at the operation site. Dr Halpin could find no other cause for his symptoms.
In December 2019, Dr Halpin reported that the applicant seemed to be going well and was essentially pain-free. The applicant was not taking analgesics for his groin.
By 11 March 2020, the applicant was reported by Dr Halpin to have an antalgic gait. On 12 March 2020, Dr Halpin reported that the applicant was about 80% better overall but he was still quite tender at the pubic origin of adductor longus and had mild pain with resisted adduction.
Mr Baker observed that there was not one reference in Dr Halpin’s reports to the applicant having a right sided limp which could account for his left hip issues. The applicant asserted that the onset of issues in the left hip occurred in September or October 2019 but the treating doctor’s contemporaneous material did not make that out. If anything, the treating evidence suggested an unusual gait to protect the left groin.
Mr Baker submitted that Dr Porteous was oblivious to the material from Dr Halpin and the evidence related to the right knee.
Given the contemporaneous material demonstrating no limp two to three years after the injury and the evidence of a limp favouring left leg, Mr Baker submitted that the Commission would not be satisfied that the history provided to Dr Porteous was consistent with the treating evidence.
Mr Baker noted that Dr Porteous’ examination on 29 April 2020 showed that the applicant’s calf measurements were the same. There was no clear wasting which might be expected if there was a limp.
Mr Baker observed that Dr Porteous did not consider the limp was related to the applicant’s right knee despite finding 18% whole person impairment related to restriction of movement of that knee. Mr Baker said this inconsistency marked the whole report as an attempt to advocate for what the applicant was proposing.
Mr Baker submitted that the MRIs demonstrated that the tear on the calf had healed. There was reference to chronic pain but in 2016, the applicant was walking normally, with no limp and no issues in relation to his calf and knee. Mr Baker said there was a “complete divergence” between Dr Porteous’ assumptions and the treating medical evidence.
No reference to left hip issues was made to Dr Wallace at the time of his 2020 report. In Dr Wallace’s 29 March 2021 report, he took a history from the applicant of a gradual onset of pain at the anterior aspect of the left hip. He was reviewed by his Local Medical Officer and underwent a series of three corticosteroid injections at the left hip, the last carried out in February 2020. These injections provided only temporary relief of his left hip pain. The applicant complained of an intermittent ache which was not present on a daily basis. The pain was worse on standing or walking and was relieved by lying down.
Dr Wallace found the applicant’s previous work-related injuries at his right knee and right calf sustained as a result of a work incident in May 2014 nearly seven years ago had resolved. This was said to be consistent with the Certificate of Determination issued by Arbitrator Sweeney.
Dr Wallace found no evidence of tenderness at the trochanteric bursa at the left hip. There was no evidence of any significant abnormality of the left hip on clinical examination. There was no objective medical evidence that the applicant had suffered a consequential injury at the left hip as a result of his previous right leg injury.
Mr Baker submitted that there was a complete difference in the professional opinions of Dr Wallace and Dr Porteous clinically. At the August 2020, examination there was no reference to any issues resulting from the left hip or trochanteric bursitis. As far as the applicant relied on a continuum of limping at the right leg, Mr Baker submitted that this was not made out by the majority of the contemporaneous material. There was no wasting in the right calf. The applicant’s evidence was inconsistent with the evidence from Dr Halpin.
Mr Baker submitted that the Commission would not be convinced on the balance of probabilities that there was a consequential condition applying the test in Kooragang Cement Pty Ltd v Bates.
Applicant’s submissions in reply
In response to the submission that Dr Porteous had an incomplete factual history, Mr Stockley submitted that he had provided to him a significant body of clinical material including Dr Deveridge’s report.
Mr Stockley noted the submission that the Commission would not be satisfied that the conclusions reached by Dr Porteous regarding both the altered gait and any continuing complaint in the right calf were supported by the contemporaneous records or the applicant’s statement. Mr Stockley referred the report of Dr Cunningham dated 7 October 2015, which reported mild wasting of his right calf and difficulty weight bearing and walking.
In April 2017, Dr Cunningham again noted that on examination, the applicant walked with a slow antalgic gait and had tenderness in the same position.
Dr Dan’s examination on 16 April 2019 revealed that the right calf was smaller than the left.
Mr Stockley submitted that there was a continuity of objective findings in respect of the calf.
Second respondent’s further submissions in reply
Mr Baker submitted that the reports to which the applicant referred showed that from time to time there was a limp and wasting but it was in September 2019 that the symptoms in the left hip were said to have come on. Dr Cunningham’s 2015 report was prior to the determination of Arbitrator Sweeney and prior to Dr Berry and Dr Deveridge’s examinations.
Dr Dan referred to symptoms of swollen ankles and noted that the applicant was due to see a cardiologist, had a substantial intake of alcohol and was concerned that peripheral neuropathy might require Vitamin B therapy. These were matters which in their own way were capable of causing dysfunction in the lower limb.
Mr Baker reiterated that Dr Halpin, on 9 October 2019, found the limp was on the left side.
FINDINGS AND REASONS
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has previously been determined that the applicant sustained an “injury” to his right lower leg on 17 May 2014 in the nature of a tear of the right calf muscle and aggravation of a pre-existing ganglion and osteoarthritis in his knee. What requires determination for present purposes is whether the applicant has sustained a consequential left hip condition as a result of that injury.
It is not necessary for the applicant to establish that any left hip condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[5] observed at [45]-[46]:
“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 section 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. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[5] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[6], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[6] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[7], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
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.”
[7] (1994) 10 NSWCCR 796.
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 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 Honoré 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.”
There is no dispute between the parties that the injury to the applicant’s right knee, in the nature of an aggravation of pre-existing degenerative pathology, has resolved, consistently with the findings of Arbitrator Sweeney in the previous Workers Compensation Commission proceedings.
Arbitrator Sweeney’s Certificate of Determination did not indicate that the effects of the injury had ceased altogether. Rather, the Certificate of Determination issued on 3 November 2016 stated that the effects of the injury to the applicant’s right knee, including the ganglion, had ceased by 28 July 2014. Arbitrator Sweeney accepted that the applicant remained partially incapacitated for work as a result of the injury to the applicant’s right calf muscle.
Different opinions have been expressed by the medicolegal experts qualified by the respective parties as to the ongoing effects of the injury to the applicant’s right calf on 17 May 2014.
Dr Wallace, who was qualified by the second respondent, has in his more recent reports formed the view that the effects of the injury to the applicant’s right calf had also ceased. Dr Wallace’s opinion was based heavily on the radiological investigations which indicated that the tear at the right calf had resolved.
In contrast, Dr Porteous, although accepting that radiological scans indicated that the tear in the applicant’s right calf had resolved, accepted that there continued to be symptoms of chronic pain and other restrictions in the right lower leg resulting in permanent impairment.
My review of the medical evidence before the Commission in these proceedings indicates that the view taken by Dr Porteous as to the ongoing effects of the 17 May 2014 injury is in greater alignment with the treating medical evidence and historical medicolegal evidence than that expressed by Dr Wallace.
The condition at the applicant’s right calf does appear to have fluctuated from time to time as different modalities of treatment were attempted. In particular, the injections recommended by Dr Cunningham in late 2015 and the first half of 2016 appear to have provided some relief.
On 13 October 2016, for example, Dr Cunningham reported that the applicant’s right calf pain was well-controlled although he continued to have difficulty with weakness in walking. The applicant’s own evidence indicated that the injections recommended by Dr Cunningham gave him temporary improvement in his right calf although he subsequently deteriorated. The applicant also indicated that some exercises and stretching shown to him by an exercise physiologist were beneficial.
Consistently with the treating evidence, the medicolegal evidence from around mid-2016 suggested some considerable improvements in the condition. Dr Deveridge reported that the applicant walked without an obvious limp, could perform heel and toe walking and take full weight on the right leg. Dr Deveridge did, however, accept that the applicant had continuing calf pain and weakness, which was contributing to the applicant’s incapacity for work. Dr Deveridge’s examination also revealed extensive calf muscle wasting.
Dr Berry, a few months later, similarly noted continuing right calf pain coming on after virtually any activity although the applicant’s pain was able to be alleviated with massage.
The applicant’s evidence is that his right calf symptoms subsequently deteriorated notwithstanding that radiological investigations at the time showed some resolution of the tear in the calf muscle.
By January 2017, the applicant had been referred to a pain clinic and Dr Deshpande formed the view that the applicant had developed a pain disorder secondary to persisting pain at the right calf.
Dr Cunningham’s 2017 reports also indicated constant background ache and flares of pain with any attempted walking or calf strength exercises.
On 20 April 2017, a slow antalgic gait was observed by Dr Cunningham. The applicant was unable to perform a single leg heel raise.
Dr Wallace saw the applicant in March 2017 and noted that he complained of constant aching pain at the right calf which was worse with stair climbing, walking or any activity. Although the applicant had a calf circumference on the right which was equal to the left, Dr Wallace did note an antalgic gait on the right side and commented that the applicant was only partially weight bearing on the right foot.
Dr Khatib reported on 16 July 2018 that the applicant had a fixed flexion deformity of the right knee, although Dr Khatib attributed this to the degenerative arthritis within the knee and noted that there was no significant atrophy of the right calf in comparison to the left. Dr Khatib did accept that the applicant remained with possible irritation of the gastrocnemius myotendinous junction and noted that the applicant experienced ongoing pain and weakness becoming very severe at times to the point where the applicant had required ambulance treatment.
By 2019, the doctors examining the applicant more consistently noted wasting at the right calf and antalgic gait. Dr Porteous first saw the applicant in January 2019 and noted an antalgic gait with limping on the right leg. On 16 April 2019, Dr Dan noted that the right calf was smaller than the left. Around the same time, Dr Keller prepared a report for the insurer in which the applicant was reported to complain of constant right calf pain. The applicant was observed to walk with a marked limp favouring putting weight on the left side to avoid straining the right calf. Dr Wallace saw the applicant in May 2019 and his examination on this occasion showed a calf circumference 2 cm smaller on the right compared to the left and bilateral antalgic gait.
Wasting of the right calf and limping were again noted by Dr Wallace in his report of 4 August 2020. Dr Berry noted on 7 December 2020 that the applicant reported pain all of the time and was unable to straighten his leg properly. In his final report of 29 March 2021, Dr Wallace again noted a reduced calf circumference on the right by 2 cm. The applicant was noted to walk with a 20° fixed flexion at the right knee.
Notwithstanding the applicant’s reported symptoms and the clinical evidence of right calf wasting, limping and fixed flexion the right knee, Dr Wallace formed the view that the effects of the work injury had ceased. Other than the reference to the tear in the calf muscle having apparently healed according to radiological investigations, Dr Wallace’s view is unexplained. Dr Wallace simply stated that he could find no explanation on the basis of known pathology in relation to the work incident on 17 May 2014 for the complaints of ongoing symptoms.
Possible explanations for the applicant’s ongoing symptoms by reference to a chronic pain syndrome, irritation of the gastrocnemius myotendinous junction or nerve injury, have, however, been suggested by Dr Porteous and the applicant’s treating doctors. It is clear on my review of the evidence that the applicant has consistently reported subjective symptoms at the right calf including pain and weakness notwithstanding some improvements with treatment in around 2016. The applicant has also been observed on a number of occasions since 2017 to walk with an antalgic gait. Objective findings of right calf wasting have also been recorded.
Dr Porteous has expressed the opinion that the considerable chronic pain in the right foreleg would have led to altered gait, resulting in altered left hip and associated soft tissue function and a degree of abnormal strain and extra use. Dr Porteous has said that it was more likely than not that this had caused consequential aggravations at the left hip of bursitis, left hamstring tendinosis, left tensor fascia lata sprain and the left iliotibial band.
Dr Wallace, on the other hand, has rejected the possibility of a consequential left hip condition. Dr Wallace’s opinion can be seen to arise in part from his view that the effects of the injury to the right calf had ceased by May 2019. Dr Wallace also found no evidence of trochanteric bursitis of the left hip at the time of his examination of the applicant in March 2021. Dr Wallace also expressed the view that it was an “unsupportable myth” that favouring one lower extremity will result in injury or illness to the opposite lower limb.
Neither the applicant’s submissions nor Dr Porteous’ opinion suggest that the injury to the right calf has caused the onset of pathology at the left hip. Rather it is suggested that the right calf injury aggravated pathology at the left hip resulting in an increase in symptoms at that site. Such an increase in symptoms, would, on the authorities referred to above be sufficient to establish a consequential condition. As noted by the applicant’s submissions, it has been accepted by Dr Porteous in the evidence in these proceedings and by numerous medical practitioners in numerous cases coming before the Commission that favouring an injured limb can, in some circumstances, result in an increase in symptoms in the contralateral limb.
Notwithstanding the findings of Dr Wallace, Dr Porteous recorded that the applicant had been diagnosed by his treating practitioners as having left hip trochanteric bursitis. Dr Porteous’ clinical findings were consistent with left hip bursitis. An MRI of the left hip dated 20 June 2019 was reported to show gluteal minimus tendinopathy with trochanteric bursitis. Dr Halpin has referred in his reports to the applicant undergoing corticosteroid and local anaesthetic injections into his hip joints on both sides with very good relief of pain. An ultrasound performed on 12 November 2019 showed evidence of trochanteric bursitis and thickening at the ischial insertion of the hamstring with focal tenderness in keeping with tendinosis. A further ultrasound performed on 25 February 2020 was reported to show evidence of moderate degree of trochanteric bursitis.
In a report dated 11 March 2020, Dr Halpin noted that the applicant’s general practitioner was treating him for trochanteric bursitis and he had undergone another injection for this the previous week. Dr Halpin noted that the applicant had had relief from these injections and he expressed the view that this was not directly related to the groin pain on the left side. This distinction between the trochanteric bursitis and the condition in the left groin for which the applicant was receiving treatment by Dr Halpin is significant.
I accept that Dr Halpin has not, in the majority of his treating reports, referred to a right sided limp which could account for the left hip issues. I do, however, accept that Dr Halpin was aware of the applicant’s right calf issues having referred the applicant to Dr Dan for investigation of such on 15 April 2019. The absence of any reference to a limp or consequential condition resulting from the right calf injury is, perhaps, understandable given that Dr Halpin was primarily treating the effects of the first injury to the left groin.
There is evidence of a bilateral or left sided limp in some of the more recent examinations of the applicant including those conducted by Dr Halpin, Dr Wallace and Dr Cunningham. This is also unsurprising given the recurring pathology in the left groin for which the applicant was receiving treatment by Dr Halpin.
I also accept that there is evidence that the applicant had a number of non-work-related conditions which could have impacted upon his gait and weight-bearing. These include the non-work-related degenerative change at the right knee first demonstrated on investigations in 2008 and the bilateral peripheral neuropathies noted by Dr Dan.
There is also evidence of degenerative changes at both of the applicant’s hips as noted by Dr Smith. Indeed, the applicant appears to have been treated for bursitis of both the left and right hips.
I do accept that these circumstances do not appear to have been clearly addressed by Dr Porteous in expressing his opinion with respect to the cause of the alleged consequential left hip condition or making his assessment of whole person impairment.
It is, however, trite law that a condition can have multiple causes and yet be compensable[8]. I am not satisfied that these omissions in Dr Porteous’ reasoning are fatal to his ultimate conclusion that there is a consequential left hip condition resulting from the injury to the applicant’s right calf.
[8] ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [27].
Dr Porteous’ reasoning is consistent with the applicant’s lay evidence. It is consistent with the treating medical evidence indicating ongoing subjective and objective signs and symptoms in the right calf, including pain, weakness, antalgic gait and altered weight bearing as well as the treatment of pathology involving trochanteric bursitis at the left hip. Dr Porteous’ reports demonstrate that he was aware of marked degenerative changes in the right knee, Dr Halpin’s treatment of the left groin injury, the diagnosis of bilateral lower limb neuropathies and treatment for the right hip.
Although no opinion on causation is offered by the treating practitioners, I am satisfied that there is a sufficient basis on which to accept Dr Porteous’ opinion. For the reasons given above, the opinions expressed by Dr Wallace do not lead me to the conclusion that Dr Porteous’ opinion is unreliable.
The possibility of permanent impairment at the left hip arising from other causes, would, of course, be a relevant consideration in any assessment made by a Medical Assessor of the degree of permanent impairment resulting from the 17 May 2014 injury.
Having weighed all of the evidence, I am satisfied, on the balance of probabilities that the applicant has sustained a consequential condition at the left hip as a result of the injury to his right calf on 17 May 2014.
Having made that finding, and noting the medical dispute between the parties, I consider it appropriate that the matter be remitted to the President for referral to a Medical Assessor for an assessment of the degree of whole person impairment at the right lower extremity (calf), left lower extremity (hip) and skin (scarring) resulting from the injury on 17 May 2014.
The materials to be referred to the Medical Assessor are to include all of the documents admitted in these proceedings.
The matter will be listed for further teleconference upon receipt of the Medical Assessment Certificate to deal with the outstanding disputes.
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