Smith v Toll Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Toll Pty Ltd [2022] NSWPIC 63
APPLICANT:	Alison Smith
RESPONDENT:	Toll Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	11 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Accepted injury to left ankle; worker claimed consequential conditions to lumbar spine and right ankle; evidence both conflicting and not persuasive for a finding of consequential conditions as claimed; Kooragang Cement Pty Ltd v Bates, Comcare v Martin, Grant v Dateline Imports Pty Ltd and Simpson v Ausgrid all considered; Held - worker failed to discharge onus to prove consequential conditions; the assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation; the applicant has no entitlement to lump sum compensation.
DETERMINATIONS MADE:	1. On 4 April 2017 the applicant sustained an injury to her left ankle arising out of and in the course of her employment with the respondent. 2. The applicant has not established that the medical condition in her lumbar spine and right ankle results from the accepted injury to her left ankle on 4 April 2017. 3. The assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation. 4. The applicant has no entitlement to lump sum compensation.

STATEMENT OF REASONS

BACKGROUND

The applicant, Alison Smith, was employed by the respondent, Toll Pty Ltd, as a delivery driver. Her main duties involved loading a truck of up to 60 parcels, delivering the parcels and then picking up parcels.
On 4 April 2017 whilst making a delivery she slipped and fell and fractured her left ankle.
Liability for this injury was accepted by the respondent (a self-insurer) and various payments of weekly compensation and medical expenses were paid
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 12 November 2021 she sought lump sum compensation in respect of her left lower extremity (ankle), scarring, the right lower extremity (ankle) and the lumbar spine.
The right ankle and back injuries were said to have arisen as a consequence of the accepted left ankle injury.
She had in earlier proceedings also claimed an injury to the cervical spine as a consequential injury but this claim was omitted from the current proceedings.
In a s 78 Notice dated 16 December 2019, the insurer denied liability “in respect of any secondary or consequential injuries involving the Right Ankle, Lumbar Spine and Cervical Spine” on the basis of all the available evidence to which I will refer later.

ISSUES FOR DETERMINATION

At the hearing on 4 February 2022 the parties agreed that the only issue to be determined was whether the evidence supported a finding of the consequential injuries as pleaded.
The claim was for 8% whole person impairment (WPI) in respect of the left lower extremity (ankle), 4% WPI of the right lower extremity (ankle), 6% WPI of the lumbar spine and 2% WPI for scarring, a total of 19% WPI. The assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation in accordance with the provisions of s 66 of the Workers Compensation Act1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    late document filed by the applicant on 22 November 2021.

THE EVIDENCE DISCUSSED

The applicant’s evidence

In her initial statement dated 11 November 2021 Ms Smith said
“I worked at TNT as a courier from approximately 2006 to 2011…
I suffered a minor sprain to my left ankle while playing football 15 years ago. My symptoms recovered completely, and I was able to continue playing football without any problems. No medical treatment was required as it was very slight.
I also suffered a similar injury to my right ankle also similarly while playing football. This also didn’t require medical treatment. Neither of the injuries interfered with my work or leisure activities. I continued to lead a very physical lifestyle with no problems or concerns. My passion for running, cycling, football and going to the beach were a part of my everyday lifestyle.
I was ultra-fit and healthy…
I started working for Toll Pty Ltd as a pickup/delivery driver in 2013…
On 4 April 2017 I was carrying out a delivery. I was walking down a private driveway to see if anyone was home to receive the parcel…
I stepped down onto a concrete slab and that’s where I slipped just as slipping on a glass. It was in line with a solid pot plant.
I slipped and my feet went from under me falling backwards onto my buttocks. My left foot struck a solid ceramic clay pot plant filled with soil and shattered it to pieces. It was at that time I knew I had injured my left ankle severely.
I looked down at my left ankle and it was deformed. It was at right angles to where it should be. Initially, I didn’t feel the pain, but I think I was in total shock. I could not even try to get up and I found myself dragging my whole body roughly 5 meters up the driveway to my vehicle. At this point I was in excruciating pain. I don’t know how I pulled myself up into my truck and even phoned for an ambulance. I was just running on adrenalin and panic at that time.
I was taken to Nepean District Hospital Emergency Department. I had x-rays and was given analgesics.
I remained in hospital and had a manual manipulation that same day to reduce the ankles irregular deformity…I was then treated with rest, compression and elevation until the swelling improved 4 days later.
After those 4 days, Dr Yassa Khatib performed an open reduction and internal fixation, and he installed a steel plate and 5 pins to bring the ankle back together as best he could due to the unusual angle of the break.
Ten days I was in hospital and later discharged from hospital in plaster with crutches.
I was off work for about 9 to 10 months.
During that time, I undertook physiotherapy and hydrotherapy treatment and did an exercise program designed specifically for my rehabilitation by a professional exercise physiologist. I tried to go out and do routine things as normal as I was advised to by the doctor to get it used to my normal daily habits. I returned to work doing admin duties only.
After the operation and rehabilitation, I was still getting considerable pain and swelling which just did not feel right even under the most basic activities. I went for a second opinion and it was suggested by Dr Brian Martin that we remove the plate and pins from the original operation to see if this would make any difference.
In October 2018 Dr Martin performed a second surgery to remove the plate and screws in my left ankle. The plate had attached itself to the rear bone and Dr Martin had to chisel the plate off the rear of the ankle bone as it had attached itself and there was considerable scar tissue surrounding the area. The ankle being relocated in the wrong position and nailed to the plate was restricting my movement and this seemed to be the reason for what was causing me all the pain and swelling which rendered me virtually useless. The surgery improved the mobility of my left ankle, but the pain persisted and then it just seemed like it clicked into the right spot, soon after this second surgery to remove the plate and screws. It felt like it was finally now back into its natural position.
I had a cortisone injection in March 2019 because pain and swelling continued.
Because of the injury, I had been favouring my right side now due to my body trying to compensate and protect the left ankle, I was experiencing pain and discomfort in my right ankle, legs, my lower back and neck as a consequence.
My left ankle has become swollen and painful, and I suffer cramps in my feet and legs still even though the second surgery significantly reduced the original pain caused from the first operation.
I still get a feeling as if the right ankle has been “sprained” now and again and it tends to click when I walk. I still have to stop and rest when required. I have had no injections or surgical intervention to my right ankle.
I have had physiotherapy treatment to my left ankle and have been doing some aqua aerobic exercises twice a week which helps my symptoms temporarily.
I feel as though my right foot is now suffering due to carrying most of my weight as a result compensating for the left side and it wasn’t even the ankle that was injured. Whilst the left is improving, the right is sometimes worse than the left side. I have been on a constant cocktail of endless drugs prescribed by the doctor since this accident which has affected me emotionally, physically and some people have told me that I have not been my cheerful self, I am angry, frustrated and I put it down to this numbed state of mind. I see a psychologist every few months to deal with the trauma and depression from the accident and inability to play sport again.
I have not been able to return to work since the second surgery because of the pain I am in.
I feel the pain in my left ankle has worsened although the mobility has improved…the pain in my right ankle averages about 4 out of 10.
I have pain in my lower back and neck if I sit for long periods.
I can only walk a maximum of 1-2 km on flat surfaces only although my ankles are very painful and often swollen. It is much worse if I walk on uneven surfaces or sand…
I can no longer play rugby union, rugby league or AFL. This injury has ruined my life, career and sporting life friendships with my teams that I am no longer able to be part of…”
The applicant’s solicitor filed a late document being a supplementary statement from Ms Smith dated 18 November 2021. In that statement Ms Smith repeated the contents of her earlier statement and added information about the circumstances of the accident following receipt of a surveyor’s report. She also added information about her “professional football career” then added:
“I have attempted to resume normal day-to-day and sporting activities (running, riding a bike and AFL) as the doctors advised. This has been unsuccessful due to ongoing pain in my foot and lower back. My friends and family can attest that after physically walking, I cannot move the next day and need to recover.
As per the advice of Dr Martin, I have received a total of 4 cortisone injections on 13 January, 1 and 18 March, 30 April 2020.
On 25 June 2020, Dr Martin provided a final report stating that I should not run on my foot. He advises to continue with light impact, strengthening exercises including hydrotherapy and bike riding at the gym for rehabilitation.
In addition to the loss of a life’s passions and goals, I have only ever had two enduring work careers. The first as a courier for over 25 years and the second as an Australian Army Reservist. Dr Martin’s final report confirms that these careers are no longer viable and I would be best suited to office duties.
It is crucial to understand how vital fitness and the ability to be active in sports has been to my life. When the Barrister asked: ‘What has been impacted by this accident?’ my response was ‘it is easier to ask what hasn’t been impacted…’.”
The balance of that statement dealt with the impact her injuries had on various activities.

The applicant’s medical evidence

Following her discharge from hospital, the applicant was treated by various doctors at the Plumpton Medical Centre, principally by Dr Deada.
Dr Khatib performed the surgery at Nepean Hospital. He then followed her progress throughout 2017 and 2018.
In a report dated 15 May 2017 he said:
“Allison is now five weeks after open reduction and internal fixation of fractured left ankle which required fixation. Her surgical scar is well healed and today I have put her into a Cam boot…”
On 27 June 2017 he wrote:
“Allison is now more than ten weeks after open reduction and internal fixation of fractured left lateral malleolus. Her fracture is now approaching complete bone union and she has stopped wearing the CAM boot two weeks ago. She is able to weight-bear as tolerated, without the help of crutches but she does have a limp and she does require assistance. She will need physiotherapy to improve her gait and balance, followed by strengthening exercises…”
On 14 August 2017 he wrote:
“I had the pleasure of reviewing Allison who is making good progress after open reduction internal fixation of fractured left ankle. Surgical scar is well-healed and she has recovered almost 95% of dorsiflexion and plantar flexion. Inversion and eversion are steadily improving. She has not commenced hydro-therapy or strengthening exercises to date and I have encouraged her to start with this now…”
Dr Khatib next wrote on 10 October 2017. He said:
“Allison presents for further review today with a complaint that her left ankle tends to swell after prolonged standing or walking. I have reassured her that this can be part of a normal response at this stage after her injury and after surgery. From an objective point of view, her fracture has united both clinically and radiologically and she only has some residual pain on palpation of the fibular insertion of the ATFL.
Allison has remained off work until this stage, but I believe it will be suitable for her to return to part-time light/desk duties working 3 days a week 4hours a day. I believe that if this is well tolerated, then after 6 weeks she can return to working full-time hours. If she continues to progress after that, then she may be able to return to preinjury duties.
From my point of view, unless Allison has any other reason to see me, I would like to see her in 6 months to keep an eye on her progress. If she continues to experience pain around lateral malleolus, then further investigations may be required. However, at this stage, I would rather focus on her rehab and return to work.”
His next report is dated 24 April 2018. He said:
“I had the pleasure of reviewing Allison who seems to be making good progress. However, more recently her progress has plateaued with more vigorous and strenuous activities such as dancing, running or returning to her previous occupation as a truck driver. She reports that she does not usually have any pain in the ankle, but she develops an ache with more vigorous activity…
On examination today, she has a quiet ankle and palpation of the fibula is not tender, but she has some tenderness on palpation of the tibial attachment of the ATFL. She has not had any recent x-rays. Tibialis anterior gastrocnemius, tibialis posterior and peroneal muscles all have grade 5 power.
I suspect that Allison's residual ache and possible feeling of instability is due to residual ATFL tear. She may continue with physiotherapy for the next 3 months. I have asked her to increase the intensity of activity…”
On 31 July 2018 he wrote:
“I reviewed Alison who is now 1 year and 3 months after fixation of a Webber B fracture of the left ankle. She has achieved bony union but she continues to experience vague generalised pain around the left ankle which she reports as a constant ache. This is stopping her from pursuing athletic activity such as running. She continues to be on modified light duties at work.
On assessment today there is no swelling around the lateral malleolus where the ache is reported to be. There is no tenderness on-palpation of the site of insertion of the ATFL. CFL is comfortable to palpation. Peroneal tendons are comfortable to palpation. There is no tenderness on palpation of the ankle joint line. The medial malleolus is comfortable to palpation with no pain. There is no significant swelling medially either. The fibular hardware is detectable on deep palpation but is not symptomatic. I do not believe there is irritation of the peroneal tendons. There is no neurovascular abnormality.
X-rays demonstrate united fibula fracture in anatomic position and alignment and maintenance of the mortise joint alignment.
At this stage I am at a loss as to the reason behind Alison's persistent pain. I have a letter from Ms Tanya Garrett.(physiotherapist) who reported that Alison's pain resolved completely with a course of antibiotic and that the pain recurred after cessation of antibiotic and that this occurred twice but I believe that this is coincidental and I believe that there are no signs clinically of infection and there are no signs of osteolysis on the x ray that would suggest a deep infection. I also believe that Alison had inflammatory markers with you which were not elevated.
At this stage I am uncertain as to the exact reason behind Allison's persistent pain and therefore I have offered for her to seek a second opinion from my colleague Dr Brian Martin who is a subspecialist foot and ankle surgeon. I am worried that she is developing chronic pain around her left ankle with the absence of any obvious organic dysfunction. I will include
Dr Martin on this correspondence and I look forward to the result of his assessment.”
Dr Martin’s first report is dated 28 August 2018. He diagnosed “Possible peroneal tendon irritation secondary to posterolateral plate fibula”. He proposed treatment by way of removal of the plate followed by physiotherapy following the surgery. He obtained a history of the injury and subsequent treatment. He also noted that Ms Smith’s general health was “fairly unremarkable” and there was no complaint of any symptoms other than in the left ankle.
In his next report dated 24 September 2018 Dr Martin said:
“Alison returned to see me today. She is having ongoing problems around the fibular plate.
I had a discussion today with Dr Khatib, who is happy for me to remove the plate. I had a discussion with Alison regarding this and I have warned her of the possibility of incomplete resolution of symptoms and she understands this. The symptoms are underlying the plate and slightly posterolateral… She will be able to weightbear as tolerated in a boot post-surgery…”
On 6 December 2018 Dr Martin wrote:
“I saw Allison today. The lateral wound has healed nicely from where the plate has been taken out and the discomfort she was getting around the back of the fibula is now gone. She is getting some pain in the anterolateral aspect of the ankle joint adjacent to the fracture…”
On 29 March 2019 he said:
“I saw Allison today, who is unfortunately having ongoing pain at the front. The injection did not really help and if anything probably aggravated her pain a little. She remains tender over the anterolateral aspect.
On the MRI scan I note that there is a small bone fragment in the anterolateral gutter and a small area of osteochondral damage.
I have recommended a little more time to see if things settle down. If not she may be looking at ankle arthroscopy and debridement of the region.”
On 18 December 2019 Dr Martin wrote:
“I saw Allison today. The repeat MRI scan thankfully shows no significant intra-articular lesion. There is no evidence of meniscoid lesion or chondral lesion on the lateral side. I note fairly significant scarring around the syndesmosis and she is quite tender here. I do believe this may well represent the source of her pain. I have therefore recommended a cortisone injection into the syndesmosis to see if this affects her symptoms. Hopefully it will help things settle down.
At this stage she still needs further time off work from her job as a courier…”

On 27 February 2020 Dr Martin wrote to Dr Deada and said:
“I saw Allison today. She is having ongoing problems with anterolateral pain but did feel better after the injection into the syndesmosis. She is continuing her own rehabilitation and as I understand her insurer is no longer funding physiotherapy. She is continuing her pool based regime and I have encouraged her to do so.
On examination today she remains tender around the syndesmosis and a little over the peroneals.
I have recommended a second image guided cortisone injection into the syndesmosis to see if this finally knocks her symptoms on the head…”
On 30 April he said:
“Alison has had good relief from the second injection into the syndesmosis and whilst it is not perfect it is significantly better but she is on the plateau. She has been able to do a lot more activity with much reduced pain, although she still has a little bit of generalised ache as she did before, just less intense…”
In his last report dated 25 June 2020 addressed to Dr Khatib, Dr Martin said:
“Allison has come back to see me today. She recently had a second repeat injection into the syndesmosis and has had some relief from it. She did go for run on Tuesday which she tells me was pretty light in intensity and on grass but has had a flare of pain.
Overall however Alison is fairly happy with how things are going and she does appear to be making further progress.
I have recommended that she continue with a strengthening and reconditioning program in the gym…”
On 3 November 2011 Dr Deada wrote to Ms Smith’s solicitor in an unfortunately poorly drafted report and said:
“Thank you asking me to write a Medical report for Allison SMITH .
1. History of the worker.
Ms Smith had ankle injury 4 April 2017.
Her Diagnosis is closed fracture left ankle joint secondary to fall. She had ORIF left ankle on 07/04/17.
I Have [seen] Ms Smith Multiple times for her workers compensation. I first saw Her on 28/04/2017.
Ms Allison has been seen by Dr Brian Martin an Orthopaedic Multiple times.
2 I believed that most likely, the client walking with limp flowing from left ankle, has resulted in the consequencial [sic] injuries to the right ankle and lower back .
3 I Have seen Ms Smith muitiple [sic] times regarding her right ankle injury and Her Muscular back pain.
I have seem Ms Smith on 27 October 2021
Ms Smith Stated to me that she has an undoing left ankle pain and swelling of the left ankle. She stated that she can walk normal with distance of 1-2 kilometers [sic].
She stated that she can walk on flat surface.
She stated that she has a limitation on walking uphill.
She stated that she limping in walking uphill, even in short distance. She stated that She can lift heavy object on stationary position.
She stated that her ankle pain is agrravated [sic] when She Carries heavy object when walking.. She stated that She can do grocery shopping
She stated that she used her Arm in pushing objects.
She stated that she has throbbing pain and numbness of her ankle and left foot.
Ms Smith stated to me on 20 June 2019
She stated that she noted low back pain radiating to the hamstring muscle [sic] and knees She stated that she was advice [sic] by the Physiotherapist to use a walker.
She said She could hardly walk even she was taking Panadiene forte.
Ms Smith stated to me 15 JULY 2020 That she woke with back pain.
I examined Her back and her posterior back was not swollen, non tender, no deformity, no restricted movement.
The most likely diagnosis was muscular back pain. Prescription of Panadiene forte was given.
On 30 August 2019
Ms Smith sated that She has an ungoing [sic] Back pain She requested MRI
She stated that She is Seeing A Lawyer.”
Dr Deada for some unexplained reason arranged an x-ray of the right foot and neck on 17 November 2017 done by Dr Kapoor. The referral note however reads: “Foot pain. Slipped and had a fall on 4^th April 2017”. The entry in the notes however on 16 November 2017 reads: “Sore ankle. Ungoing [sic] Swollen Ankle ungoin [sic] Radiating to lower leg. Spoken to solicitor”.
This is simply inexplicable.
Ms Smith did have an x-ray and ultrasound of her right ankle on 13 June 2019 again performed by Dr Kapoor because of right ankle pain and a questionable ligamentous injury. The scans revealed some changes but no fracture or bony injury.
Numerous medical certificates included in the Application and the Reply make no reference to any injuries or symptoms in the back or the right ankle.
Ms Smith had been treated by various physiotherapists at Sydney West Sports Medicine. She first presented on 20 January 2017 with a history of having fallen off the back of a truck and hit her head. She also complained of problems with her left knee for the past two weeks.
On 23 January she reported neck pain “over the weekend”. She continued to complain of neck pain over several consultations in January and February 2017.
On 14 November 2018 she presented to that centre and was seen by Ms Nadine George, physiotherapist. She complained of symptoms in her left ankle only, as the diagram in the notes confirms.
Ms George wrote to Dr Martin on 20 November 2018 and said:
“Thank you for referring Ms Smith who I saw in clinic on the 14th of November 2018 for treatment of her left ankle. As you know, Ms Smith underwent removal of an ORIF plate from the left fibula on the 15th of October 2018. Ms Smith reports that this was done on background of ongoing pain in the left ankle following a workplace injury some 18 months prior on the 4th of April 2017…
Ms Smith reports that whilst her range had improved and she was able to return to work by October 2017, she suffered ongoing pain and fluctuations in mobility despite ongoing physiotherapy and exercise physiology, which led her to consult yourself for opinion and management…
Treatment has commenced…”
In a report from physiotherapist Ms Nadine Booth dated 9 October 2019 addressed to
Dr Deada, she wrote:
“Ms Smith has attended 31 physiotherapy treatment sessions since 14 November 2018 for treatment of her left ankle…
By June 2019 Ms Smith was attending physiotherapy every 2-3 weeks and hydrotherapy weekly. She maintained her habit of walking each morning…
Today I reviewed Ms Smith following a 6 week break from treatment due to her recent holiday to Europe…
Ms Smith’s presentation was as follows:
No ankle joint effusion; Full open chain dorsiflexion compared to the right side…
At today’s consult, as in our last several consults, Ms Smith has expressed her concern at the fact that both her ankles feel constantly sprained, and the fact that she feels that her right ankle has compensated for the left and is also now injured. It is clear that
Ms Smith believes that this is and will be a permanent impairment. I agree that the right ankle did compensate for the left…the function of the right ankle was affected in the early stages of rehabilitation as would be expected, but as Ms Smith’s function and daily activity has increased, the right ankle has range of motion appears to have normalised. The right ankle does not appear to be effused, and all ligaments are stable (as they are in the left ankle) on clinical examination.
I have discussed with Ms Smith the reality of her situation which is that considering the injury she had to her left ankle, it is likely that it will never feel as the right ankle does…
Despite this, I do believe that Ms Smith has already regained a considerable amount of function and certainly is able to perform all normal activities of daily living with the exception of running and impact activity…
Ms Smith has also mentioned her back pain and she feels that her left ankle injury has left her with a back problem which is directly related to this ankle, and her language clearly indicates she believes this will be an ongoing problem.
Ms Smith has had bouts of mechanical low back pain associated with her ankle as a result of her altered gait mechanics and increases in loading as a part of her rehabilitation. I do not believe this is related to any structural change or injury specifically related to her ankle, but instead mechanical low back pain such as one would expect after limping for several days, or engaging in physical activity that one was otherwise unaccustomed [to].
Ms Smith has voiced concern over becoming ‘disabled’ for the rest of her life due to this injury more than once. This raises concerns over Ms Smith’s expectations regarding her prognosis, and over other psychosocial factors that might be at play. This comment stood out to me particularly, as Ms Smith had just returned from a 3 week holiday in Europe, and was able to function accordingly…
I still believe there is potential for ongoing functional Improvement [in the left ankle…”
Clinical notes from the Plumpton Medical Centre commence on 12 September 2016.
On 29 January 2017 the entry states: “a week ago, got whips/ash injury – concussion injury in the head”.
Ms Smith was seen on 9 April 2017 following her left ankle injury. Notes thereafter refer only to that injury.
The first report of back symptoms was on 2 October 2018 where the entry reads: “back pain secondary to L ankle injury (work related) going for surgery soon need pain killer and want to take days off for three days for her back”.
On 7 November 2018 the entry reads: “Back pain on CAM BOOTH/ on scratches [sic]”.
Subsequent entries refer to the left ankle condition.
The first reference to right ankle pain that I have found is on 13 June 2019 where the entry reads: “Lower back pain & right hamstring & right ankle pain? From overcompensation of L ankle problem. Said she talked to her lawyer who suggested she do a scan on her R ankle”.
Ms Smith then had investigations of her right ankle.
An MRI of the cervical spine and lumbar spine performed by Dr Dugal on 5 September 2019 revealed “minor spondolytic changes” in both the cervical and lumbar spine.
Ms Smith’s solicitor qualified Dr Graeme Mendlesohn, general surgeon and musculo-skeletal consultant to report on Ms Smith.
In his first report dated 1 April 2019, he obtained a history of the left ankle injury only, and assessed 6% WPI in respect of the left ankle injury and 2% WPI for scarring.
In his next report dated 22 July 2019 he said:
“She said that her right ankle has now become painful. She said that the discomfort in that ankle started shortly after the injury to the left ankle as she had been favouring that side and it has continued since. Recently, her symptoms in the right ankle have become more severe…
She has separately, pain in her back and her neck if she sits for long periods…”
He commented that the x-ray and ultrasound of the right ankle on 13 June 2019 “showed sprained ligaments. There was some synovial thickening within the medial joint line and appearances of low- grade ligamentous injury…”.
His diagnosis was:
“Ms Smith has suffered a fracture of the lower end of her left tibia and fibula involving the ankle joint. This required open fixation with later removal of the metalware. She has also suffered a consequent injury to her right ankle of a ligamentous nature as a consequence of favouring the left side.”
On this occasion he assessed 7% WPI for the left ankle and 4% WPI in respect of the right ankle. His assessment with respect to scarring remained the same.
In his last report dated 23 November 2020 Dr Mendlesohn said:
“Ms Smith said that she has had no further injury since she was last seen in July 2019…
Ms Smith has not worked since she was last seen. The last surgical intervention was on 15 October 2018 where plates were removed from her ankle…
As regards Ms Smith’s back, she first commenced having problems there when she started to do more exercises following the injury to her ankle. She denies any prior back problems but had recurring pains in her lower back for up to two weeks at a time. She required Codeine for this pain when it recurred. The pain has been brought on if she does much in the way of walking or gym work…
She does say that when she fell on the rock in the initial incident, she did strike her head at the same time. However, she commenced having problems with her neck following her second operation to her ankle, in 2018. This is when her back pain became more painful, also…
Her pain tends to come on after exercise in both her neck and her back…”
After commenting on the radiological material and his findings on examination,
Dr Mendlesohn concluded:
“Ms Smith has suffered a significant fracture of the lower end of her left tibia and fibula…There was a separate injury to her right ankle which would appear to be ligamentous in nature and could certainly have come about as a consequence of favouring the left side because of her ongoing problems there.
Because of her altered gait, I believe that she has also suffered a consequent injury to her lower back involving soft tissue injuries and a disc prolapse. There is no radiculopathy, however.
As regards her cervical spines, I believe that she has a mild disc prolapse without any radiculopathy…
As regards her right ankle, I believe it is fair to claim that this has been a consequent injury due to the altered gait from the continuing problems with her left ankle. It has resulted in a chronic ligamentous injury to that ankle.
As regards her lumbar spines, again I feel it is fair to claim that the altered gait has been instrumental in causing or aggravating an underlying bulge in her lower back…
As regards her cervical spines, I am unable to find a direct nexus between this and her altered gait from her original injury. Ms Smith states that she hit her head when she fell but she did not develop symptoms here until 18 months after the original injury and therefore I am unable to confidently state that her problems with her neck are as a consequence of the original injury.
Even had she had a consequent injury to her cervical spines, I believe that the situation here puts her into a DRE cervical category I which would give a 0% impairment, in any case…”
On this occasion, Dr Mendlesohn assessed 8% WPI in respect of the left ankle and 6% WPI in respect of the lumbar spine which, in addition to his earlier assessments, gave a combined WPI assessment of 19%.

The respondent’s evidence

Much of the evidence contained in the Reply replicated material contained in the Application, particularly treating doctor’s reports and clinical notes. Some of the treating doctor’s reports were omitted from the Application such that a more complete picture of the evidence was provided by the respondent.
The respondent arranged for Ms Smith to be examined by consultant orthopaedic surgeon
Dr Allen on 11 October 2019. In a report dated 23 October 2019, after obtaining a history of the left ankle injury, he said:
“Ms Smith initially underwent a closed reduction on her left ankle and, after the inflammation had settled at four days, had an internal fixation of the left ankle.
Ms Smith was rehabilitated with physiotherapy and returned to work on alternate duties for about a year.
Ms Smith had ongoing pain in her left ankle and in October 2018 the plate from the ankle was removed. This gave her benefit and she continues to have ongoing physiotherapy and hydrotherapy. She has been recommended an exercise physiologist. She does her own home exercises.
Subsequent to her fall she has developed some low back pain which is disabling her significantly at this time. She has had investigations for this.
Ms Smith reported that her current symptoms in the ankle are of lesser severity than her back symptoms but she still has some functional issues with the left ankle including a discomfort with ambulation…
Ms Smith walked with a normal gait…
Ms Smith had normal alignment of her lower extremities. Ms Smith was able to perform a squat at the side of the bed. Ms Smith had no wasting of her lower extremities…
The scar was noted over the lateral aspect of her left ankle attesting to the surgery. There was no sensory abnormality or any other functional pathology noted in the lower extremity.
Examination of the lumbar spine was performed and there was symmetric motion in all planes with no paraspinal muscle tenderness or spasm…
She reported that her most severe symptoms are originating from her lumbar spine and no longer from the ankle. Some minor residual symptoms persist in the ankle…”
Dr Allen was then asked a series of questions and responded as follows:
“Whether you would diagnose any current complaints in relation to the right ankle and, if so, set out the relationship to the condition and the injury that occurred on 04/04/2017.
There is no pathology with respect to the right ankle. Clinical examination today failed to demonstrate any objective pathology. She has a full range of motion of the right ankle as measured with a goniometer and no evidence of pathology.
It was her left ankle that was injured in the accident and not the right ankle.
Whether in your view the injury described in the course of employment would substantially contribute to any current medical condition that Allison may have in relation to her left and right ankles.
No.
Any pathology in the right ankle cannot be ascribed to the index injury on the left side nor cannot be considered a consequence thereof. Treatment for the left ankle is now complete.
Your views as to whether Allison is capable of performing her pre-injury work which would involve manual lifting, bending and carrying of weights ranging from 5 to 15kgs. Workload would vary day by day depending on business operations.
With respect to the ankle alone, I believe she has capacity for normal employment. She believes however that she does not have such capacity and reported that the major ongoing issue for her is her back.
This is not related to the index injury. If ongoing incapacity is reported then this can no longer be ascribed to the ankle fracture which has long since healed.
Your prognosis as it relates to any current conditions you may diagnose.
The ankle fracture on the left side has healed and resolved and the prognosis is excellent.
Whether you consider Allison requires any current treatment and any recommendations you would make in that regard.
Ms Smith reported significant lower back pain without any objective evidence of radicular pathology. This may benefit from treatment on its own merits but does not relate to the work-related injury of the left ankle fracture.”
Dr Allen assessed 1% WPI for scarring and 0% WPI in respect of the left ankle.
He then added:
“Accompanying your request was a report from Dr Mendelsohn, including a permanent impairment assessment. My findings at examination today differ significantly from those reported by Dr Mendelsohn and based on my assessment of Ms Smith today I believe that the impairment expressed by Dr Mendelsohn is not reflected by her current condition.
Examination of the right ankle was normal in all respects and the range of motion noted in the left ankle is greater than that recorded by Dr Mendelsohn. In assessing the range of motion of the ankle multiple techniques were used and measurement was made with a goniometer.”

FINDINGS AND REASONS

There have been numerous decisions in this jurisdiction dealing with claims for consequential injuries or conditions.
A number of principles have developed, summarised as follows.
The onus rests with the worker to establish that any consequential injury or condition has arisen as a result of the principal or accepted condition, in this case the injury to the left ankle.
There is no need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury (Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan) [2016] NSWWCCPD 23).
The principles established in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) should in general be followed.
As 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.”

The High Court in Comcare v Martin (1994) 35 NSWLR 452 (Martin) considered the extent to which one can rely on a “common sense approach”.
In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.”
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd vGSF Australia Pty Ltd [2005] HCA 26 wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd, McHugh J doubted whether there is any consistent common sense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
In short, Kooragang requires a careful analysis of all the evidence to establish a causal chain.
The principles regarding expert evidence as set out in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 should be observed.
Some of these principles were considered more recently in Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 where Deputy President Wood also made reference to the decisions in Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero) and Kumar vRoyal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar) which have relevance to the issue in dispute in this case.
Counsel for the applicant was at pains to point out that Ms Smith suffered a “significant injury” to her left ankle and underwent “significant surgery” such that it was both understandable and a matter of common sense that she would place more weight on her right leg and ankle compensating for the left ankle condition.
I accept at the outset that Ms Smith suffered a moderately severe injury to her left ankle, as reported by Dr Martin in particular, but the consequences of that must be considered in light of all the evidence.
Dealing firstly with the applicant’s initial statement she said:
“Because of the injury, I had been favouring my right side now due to my body trying to compensate and protect the left ankle, I was experiencing pain and discomfort in my right ankle, legs, my lower back and neck as a consequence.”
That is inconsistent with most of the evidence.
To begin with, the applicant did not mention the injury she had in January 2017 following which she sought treatment for headaches and neck pain.
She did not mention in her statement that she struck her head at the time of the incident in April 2017. However, she later told Dr Mendlesohn in November 2020 that she did.
I have some doubts as to the veracity of the applicant’s statement since she clearly wished to include a claim in respect of a consequential injury to her neck but in the absence of any WPI assessment, and Dr Mendlesohn’s opinion that “she did not develop symptoms here until 18 months after the original injury…” such a claim was not included. She nonetheless considered that her neck problems were as a result of her left ankle condition as she told
Dr Mendlesohn.
There is no reference in all the reports of both Dr Khatib and Dr Martin of any complaints of problems other than in the left ankle.
Indeed, Dr Khatib noted in April 2018, some 12 months after the injury, that Ms Smith had resumed “dancing, running” and his findings on examination in July 2018 suggested almost complete resolution of the left ankle injury prompting him to express concern that “she is developing chronic pain around her left ankle with the absence of any obvious organic dysfunction”.
I accept that Dr Martin formed a different view, this being his speciality, and as I said,
I do accept that Ms Smith sustained a moderately severe injury to her left ankle.
Given the extensive consultations Ms Smith had with Dr Martin, I am at a loss as to why she failed to mention all her other symptoms.
The first mention of back pain appears to be in the notes from the Plumpton Medical Centre on 2 October 2018 where the entry reads: “back pain secondary to L ankle injury (work related) going for surgery soon need pain killer and want to take days off for three days for her back”. Again, this suggests that it was Ms Smith’s opinion that her back pain was secondary to her left ankle injury.
Dr Deada did record “she noted low back pain radiating to the hamstring muscle [sic] and knees…” but there is no further reference to that until the entry on 15 July 2020 where she recorded that “she woke with back pain.”
The first reference to right ankle pain that I have found is on 13 June 2019 where the entry reads: “Lower back pain & right hamstring & right ankle pain? From overcompensation of L ankle problem. Said she talked to her lawyer who suggested she do a scan on her R ankle”.
Once again, this suggests that it was Ms Smith (or her lawyer) making a connection between the left ankle injury and symptoms in the right ankle.
There does appear to be some pathology in the right ankle but I am mindful that Ms Smith has had prior ankle injuries in her football years, such that I am left in some doubt as to any connection to the April 2017 injury.
Dr Mendlesohn’s reports in my view are of little weight. In his first report dated 1 April 2019, some two years after the left ankle injury, he does not comment on anything other than the left ankle and scarring.
In his second report of July 2019 he ‘adds’ the right ankle, curiously omitted from his April report despite the applicant’s assertion that since her injury she had been “favouring my right side now due to my body trying to compensate and protect the left ankle” as a consequence of which she “was experiencing pain and discomfort in my right ankle, legs, my lower back and neck”.
In his last report in November 2020 he then ‘adds’ the back, and this is despite the fact that in her statement the applicant said: “I have pain in my lower back and neck if I sit for long periods”.
Even if Ms Smith was sitting because of symptoms in her left ankle, I am frankly at a loss to understand how any symptoms in her back and neck could be regarded as a “consequence” of her left ankle injury in these circumstances in line with the authorities to which I have referred.
Dr Mendlesohn noted in his last report that “she commenced having problems with her neck following her second operation to her ankle, in 2018. This is when her back pain became more painful, also…”.
This is clearly inconsistent with the evidence of prior neck complaints and the applicant’s own statement.
The report of Dr Mendlesohn, unsatisfactory as it is, also seems to simply reflect what the applicant told her about her various symptoms and their connection to the left ankle injury.
I do note however that she obtained a history that on 15 July 2020 “she woke with back pain”.
She added: “I examined her back and her posterior back was not swollen, non- tender, no deformity, no restricted movement”.
In short, the only evidence that supports any finding of consequential conditions is from
Dr Deada and Dr Mendlesohn, and they are clearly relying on what the applicant told them, irrespective of the flaws in their reports to which I have referred.
Counsel for the applicant was critical of the opinion of Dr Allen. I can see that on the face of it his report does not seem to fully explain his reasons, but having said that, he was responding to certain questions asked of him.
Of more significance is his findings on examination, particularly of the back. His findings in respect of the left ankle are consistent with the opinion of Dr Khatib, although as I said, I do prefer the opinion of Dr Martin as regards the current state of the left ankle.
It is useful to note at this stage the observations of Arbitrator Rimmer (as she then was) in Simpson v Ausgrid [2019] NSWWCC 307 where she said:
“Mr Simpson expressed the opinion in his statement that ‘My left knee injury altered my gait, causing me to walk with a limp that led to the development of pain in my lower back.’ He expressed this opinion to Dr Lai and Mr Tran. The opinion is of little, if any, weight in the circumstances of this case. The rules of evidence do not apply in the Commission and so the prohibition on the reception of opinion evidence at common law or under the Evidence Act (NSW) 1995 does not apply. While it is true that it is not always necessary to adduce medical evidence to establish injury or causation in cases under the workers compensation legislation, the opinion of the worker on a causation issue will rarely be logical and probative as required by the Rules and, more importantly, it will rarely be persuasive.”
I agree, and in this case the opinion of the applicant, which really dominates the evidence, is neither probative or persuasive, particularly given the numerous inconsistencies to which
I have referred.
I have been impressed by the opinion of Ms Booth, the physiotherapist who saw the applicant on many occasions from November 2018.
Although she accepted to some extent the complaints made by the applicant about her back and neck, she concluded, tellingly:
“Ms Smith has voiced concern over becoming ‘disabled’ for the rest of her life due to this injury more than once. This raises concerns over Ms Smith’s expectations regarding her prognosis, and over other psychosocial factors that might be at play. This comment stood out to me particularly, as Ms Smith had just returned from a 3 week holiday in Europe, and was able to function accordingly…”
On my reading of Ms Booth’s report, she also was expressing some doubts as to the veracity of the applicant’s statements.
There are simply too many inconsistencies in the applicant’s evidence for me to accept that she sustained the consequential conditions which she claims.
The claim and all the evidence, particularly in Ms Smith’s second statement, suggests an earnest attempt to mount a common law claim.
However meritorious that may be on the part of Ms Smith’s legal representatives, the evidence overall does not support the finding of any consequential condition resulting from the accepted left ankle injury.
For these reasons, Ms Smith has not discharged the onus on her to establish that she sustained the consequential conditions as pleaded.

[2022] NSWPIC 63

11 February 2022