Spice v Catholic Healthcare Ltd
[2024] NSWPIC 712
•18 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Spice v Catholic Healthcare Ltd [2024] NSWPIC 712 |
| APPLICANT: | Brian Thomas Spice |
| RESPONDENT: | Catholic Healthcare Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 18 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether the applicant suffered consequential conditions to his lumbar spine, upper limbs (shoulders), left lower limb and Dupuytren’s contracture as a result of an accepted right ankle/foot injury on 27 July 2014; gaps and inconsistencies in the medical evidence; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Makita (Australia) Pty Ltd v Sprowles; Held – award for the respondent for claims relating to left lower limb and Dupuytren’s contracture; the applicant has a consequential condition of the lumbar spine, bilateral upper extremities (shoulders) as a result of accepted right ankle/foot injury; matter referred to a Medical Assessor for assessment of whole person impairment of bilateral upper limbs (shoulders), right ankle/foot, lumbar spine and scarring. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to his right lower extremity (ankle/foot) in the course of his employment with the respondent on 27 July 2014. 2. The applicant has developed consequential conditions to his bilateral upper extremities (shoulders) and lumbar spine as a result of the injury referred to in (1) above. 3. Award for the respondent with respect to the claims for left foot injury and Dupuytren’s contracture. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment arising from the following: Date of injury: 27 July 2014. Body system: right lower extremity (ankle/foot); right upper extremity (shoulder); left upper extremity (shoulder); lumbar spine, and scarring (right ankle and lumbar spine). Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor for consideration are to include: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Mr Brian Spice (the applicant) was employed as a kitchenhand with Catholic Healthcare Limited (the respondent) undertaking duties at the Jemalong Residential Village in Forbes.
On 27 July 2014, his right foot was run over by a 400kg trolley resulting in a fracture of the 4th metatarsal bone. Ongoing instability led to an inversion injury on 31 July 2016 resulting in surgery. The respondent’s insurer accepted liability for this injury. A spinal stimulator was ultimately inserted for pain control after a diagnosis of complex regional pain syndrome.
In August 2017, the applicant fell down stairs at home due to his unstable right foot and sustained injuries to the left shoulder.
On 22 October 2022, the applicant claimed lump sum compensation under the Workers Compensation Act 1987 (the 1987 Act) for the right ankle/foot injury and scarring. He also claimed lump sum compensation for impairment arising from consequential conditions to the bilateral upper extremities (shoulders), lumbar spine, left foot and Dupuytren’s contracture.
On 25 January 2023, following assessment, the respondent’s insurer declined to make an offer of lump sum compensation for the right foot/ankle as its medical assessment was below threshold. It also proceeded to deny liability for the claims relating to the bilateral shoulders, lumbar spine, left foot and Dupytren’s contracture on the basis its qualified medical evidence determined those conditions did not result from the right ankle/foot injury and therefore were not consequential conditions and nor was it satisfied that ‘injury’ as defined by ss 4 and 9A of the 1987 Act occurred to those areas.
Requests for internal review were unsuccessful resulting in an Application to Resolve a Dispute (ARD) being filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway ultimately proceeding to conciliation/arbitration where parties requested a determination of the claims relating to the consequential conditions following which (depending on my findings) the matter would be referred to a Medical Assessor for assessment of impairment. The parties accept the claims for the left foot and Dupytren’s contracture cannot be referred to a Medical Assessor in the absence of an impairment rating.
At arbitration, Mr Boulton of counsel instructed by Ms Barlow represented the applicant.
Mr Hanrahan of counsel, instructed by Mr Dissanayake represented the respondent.
Ms Duarte was the insurer representative. During the course of decision making I had regard to the submissions of counsel, the ARD and the Reply. No oral evidence was called.
EVIDENCE
Documentary evidence
Applicant’s statement
The applicant’s statement[1] informs me of the trolley incident and his inability to weight bear for a prolonged period which was initially thought to be due to muscular issues and swelling. He was treated with a CAM boot. He continued to work with foot swelling, pain and altered gait and it was not until about two years later, after an inversion injury to the right ankle that his ankle was formally investigated revealing he had suffered a fracture of the base of the fourth metatarsal, likely from the 2014 incident, which was ultimately fused on
24 February 2017. The development of CRPS resulted in the insertion of a spinal cord stimulator, which was complicated by infection.[1] Folio 1-7 of the ARD.
The applicant informs me he fell at home whilst negotiating stairs using his crutches and struck his left shoulder. Since that time he has had trouble lifting the left arm above shoulder height and the use of crutches caused pain. It was considered he had suffered a partial tear in the rotator cuff.
Pain in the right foot was so significant that he requested amputation, a request declined by his specialists.
The applicant states he now has a carer who assists with grocery shopping, laundry and general household tasks, visiting about three times per week for a few hours at a time. The inability to work has caused depression.
The statement emphasises that whilst he had injured his back in the 1980’s he did not have any real problems unless he was performing repetitive manual lifting or forward bending but since the foot injury, the pain is constant even at rest. His low back pain has been worse due to his inability to weight bear on the right heel, his limp and altered gait. He cannot wear average footwear. He wears oversized slippers as the sensation of shoes touching his feet causes severe pain. He continues to use a crutch.
Dr Andrew Porteous, occupational physician
Qualified by the applicant and reporting on 12 September 2022,[2] the history taken by
Dr Porteous in relation to injury, treatment and daily impact is, to the extent that it overlaps, consistent with the applicant’s statement.[2] Folio 16 of the ARD.
On examination, there was restricted movement of the lumbar spine, right lower limb and shoulders.
As regards causation, he considered the right foot condition was entirely due to being struck by the linen trolley. He opined underlying pre-existing shoulder pathology had been aggravated by the long use of crutches which he considered was a consequential condition. Despite assessing a whole person impairment for the lumbar spine, his report was silent on the history of injury or symptoms arising out of the workplace events.
In a supplementary report dated 13 June 2024,[3] Dr Porteous again confirmed the right foot sprain injury and metatarsal fracture. He considered the prolonged use of crutches due to the right foot injury supporting a significant amount of body weight (85kg) on the balance of probabilities aggravated any pre-existing shoulder pathology. No left foot pain was reported.
[3] Folio 39 of the ARD.
As regards the lumbar spine, he reported (unedited):
“with the pain and restriction in his right foot, and with the associated altered gait favouring that and the altered vector of forces through his lumbar spine, he has more likely than not on the balance of probabilities, aggravated, accelerated or deteriorated any pre-existing age related lumbar pathology…
Noting the above it is more likely than not when weighing the evidence that the right foot injury made at least a material contribution to the bilateral shoulder injury/pain and the lumbar back injury/pain. “
Dr Porteous disagreed with the respondent’s qualified opinion (Dr Powell), maintaining it failed to take into account that the prolonged use of crutches aggravated the pre-existing age related degeneration and other pathology in both the bilateral shoulders and lumbar spine.
Following reassessment on 2 September 2024,[4] it was recorded the applicant had sustained a number of falls, attributed to right foot and ankle pain, had ongoing back pain even at rest, had marked right foot pain and ongoing bilateral shoulder pain. Pre-existing injuries to the shoulder (about 35 years earlier) and lumbar back pain were again recorded but despite these being significant, did not prevent the applicant from working and it was not until the ankle injury that he ceased work after rehabilitation had failed in 2017. The spinal stimulator was noted to be insitu but the battery was flat! It was recorded the applicant uses a walking stick “all of the time when he is out and at home sometimes now”. His opinion on causation remained unchanged from that previously reported.
[4] Folio 44 of the ARD.
Dr Michael McGlynn, hand and plastic surgeon
Dr McGlynn reported on 10 October 2022 and assessed scarring with reference to the TEMSKI resulting from the insertion of the spinal stimulator to manage the right lower limb pain and fusion surgery from the 4th metatarsal fracture.[5] The Dupuytren’s contracture was considered to be unrelated to employment injury or its sequelae.
[5] Folio 32 of the ARD.
Dr Tim Low, sports doctor
The applicant was referred to Dr Low by his general practitioner. In his report dated
9 September 2016[6] he recorded the injury to the metatarsal in July 2014 and the inversion injury on 31 July 2016. He noted pain when weight bearing and that the applicant adopted an altered gait due to “pain every day”.[6] Folio 72 of the ARD.
Dr Ian Thong, pain physician
Following referral by the general practitioner, Dr Thong diagnosed neuropathic pain with features of chronic regional pain syndrome (CRPS) arising from the fracture and surgery on 30 May 2017.[7] The pain was noted to cause an antalgic gait. Relevantly he reported (unedited):
“the pain is causing an antalgic gait and this is causing other issues including hallicus longus tendonitis, muscle cramping, aggravating back pain and hip pain. The underarm crutches are causing shoulder, arm and chest wall pain and are an unsuitable appliance…
Functionally, he is unable to walk without an aid and unable to work because he cannot walk and cannot wear appropriate shoes”.
If he is not manageable with conservative treatment (medications) then the next recommendation is spinal cord stimulation.”
[7] Folio 82 of the ARD.
At assessment on 30 June 2017,[8] the applicant was using forearm crutches yet was still unable to wear a shoe, unable to weight bear, was intolerant to touch, needed crutches to mobilise and was unable to drive or use public transport.
[8] Folio 86 of the ARD.
On 25 August 2017, Dr Thong recorded the CRPS was getting worse and the applicant had fallen down stairs when using his crutches and injured his left shoulder likely resulting in a supraspinatus partial tear.
Professor Cousins, pain management specialist
Following assessment on 6 November 2017, Dr Cousins noted CRPS right foot, ankle and leg, severe irritability and depression, reduction in range of movement in the neck, lumbar spine and left foot/ankle and abnormal movement in the right foot/ankle. He stated, “he would need to relearn normal movement in the foot/ankle on the right side and to a lesser extent on the left side”. A trial stimulator was recommended. [9]
[9] Folio 97 of the ARD.
Dr Michael Neale, vascular surgeon
At assessment on 7 February 2019,[10] the applicant’s request for amputation of the foot was discouraged. It was recorded the applicant was unable to weight bear on the foot and walked with crutches with constant pain.
[10] Folio 130 of the ARD.
Forbes medical centre
The clinical notes are extensive[11] and record treatment from 2002. The records demonstrate a pre-existing back condition for which regular opioid medication was prescribed and there were several attempts to wean off the medication. Multiple records including in 2021[12] confirm despite interventions, the pain required the applicant to ambulate with a walking stick. The records show regular contact with the practice and my review of the 139 folios of clinical notes confirms there are no further injuries recorded to either the back, lower or upper limbs, with the exception of the workplace injury, a concession made by both counsel at arbitration. The lumbar complaints prior to the 2014 ankle injury are well recorded but increase following ankle surgery. There was a reference to a request for shoulder surgery in or about 2009 but the particulars are sparse. I could not identify any complaints relating to the left foot.
[11] Folios 189 to 323 of the ARD.
[12] Folio 233 of the ARD.
Respondent’s evidence
Dr Powell was qualified on behalf of the respondent. In his report dated 4 January 2023,[13] he takes a consistent history that a trolley with an estimated weight of 400kg struck the lateral aspect of the forefoot, going up onto the foot and then dropping back off. He had three months off work and then returned to work for two years with swelling and repeated bandaging (so that he could apply his footwear) but did have difficulty taking weight and was limping. In 2016, he recorded the applicant suffered an inversion injury to the right foot. This prompted investigation with a bone scan which identified a fracture in the fourth metatarsal from the original injury in 2014, which ultimately led to surgical intervention. The surgical intervention and history of treatment is consistent with other practitioners.
[13] Folio 1 to 20 of the Reply.
He noted the applicant cannot wear shoes and presented with a stick to ambulate, carried in the right hand.
Examination revealed a loss of balance with single leg stance and there was some restricted range of movement in the upper limbs, lower limbs and lumbar spine with an antalgic gait to the right despite the use of a walking stick.
As regards the upper extremity, he considered any rotator cuff tendinopathy or arthrosis was constitutional and not connected with the use of crutches, which he reported ceased being used several years ago and nor was there any influence on rotator cuff pathology from the minimal use of a walking stick.
As regards the lumbar spine it was considered that there was no activity from any degenerative disease at the lumbar region and as the applicant gave no symptoms of back pain, the slight restriction in range of motion was due to age related changes. Dr Powell specifically reported (unedited):
“The aetiology of lumbar spondylosis is principally age and constitutionally related. It would appear that Mr Spice has had some symptoms in the lumbar region for more than 20 years, which would indicate an underlying disorder.
Simple limping in isolation has not been shown to influence the natural history of lumbar spondylosis, neither through cause of degenerate disease nor of influencing its natural history. Mr Spice’s level of mobility and day to day function have been substantially reduced since 2016, such that mechanical loading in the lumbar region even if age related disease, has been reduced and is more likely to slow the progress of a degenerate disorder.
As outlined above, despite the limited information, it is most likely that Mr Spice has constitutionally related degenerate disease which is common throughout the community and there has been no indication in his history of any other contributing factor.”
As regards the right upper extremity, Dr Powell reported (unedited):
“The use of crutches and walking sticks do not influence the natural history of rotator cuff disease. (Mr Spice has not used crutches for many years now and his use of a walking stick is also minimal as his level of mobility has been severely restricted due to his symptoms for many years.)”
As to symptoms in the left upper extremity and generally he considered (unedited):
“As outlined above, this condition is not influenced by the use of crutches and Mr Spice utilises his walking stick in his opposite hand.
There is no evidence that Mr Spice has “overused” crutches nor a walking stick and his level of use of crutches when he did use them was minimal, as he quickly gave up only getting as far as the shops.
The prognosis with respect to Mr Spice’s other areas of complaint would depend upon the natural history of his progression of degenerate disease, but given his very minimal level of physical activity, deterioration is likely to slow and gradual.
The reasons for my assessment have been outlined above, and therefore do not coincide with those of Dr Porteous, as I cannot identify any plausible connection between the effect of the workplace incident on 24 July 2014 at the right lower limb with those of other areas”
Submissions
A summary of key submissions on behalf of the applicant were;
(a) the evidence establishes on the balance of probabilities the right ankle injury has resulted in the development of consequential conditions in the lumbar spine (due to altered gait) and both upper extremities due to the over reliance of crutches both at the time of rehabilitation and present. The applicant also suffered an injury (tear) to the left shoulder following a fall due to his unstable ankle. No other factors are relevant to the applicant’s presentation. He is credible. The applicant admits that he had pre-existing back pain but this did not prevent him working in a physically demanding job where he was on his feet all day. It was not until the ankle injury that symptoms and disability became quite pronounced;
(b) the applicant has discharged his onus with reference to the factual and medical evidence and with reference to the common sense test, and
(c) the respondent’s qualified medical evidence cannot be relied upon as it is inaccurate with regards to the applicant’s daily activities, his treatment history and ongoing complaints of pain.
A summary of key submissions on behalf of the respondent were;
(a) the right ankle injury is not in dispute;
(b) the evidence does not establish that the applicant suffered consequential injury to the lumbar spine or both upper extremities. The applicant’s statement does not attribute any upper extremity pain to the use of crutches and there is no medical evidence that the applicant has continually used crutches beyond the initial rehabilitation period and following his surgical procedures;
(c) the applicant failed to disclose that surgery to the right shoulder was recommended as early as June 2009;[14]
(d) the clinical notes are silent on any left ankle injury or symptoms;
(e) the report of Dr McGlynn rules out Dupytren’s contracture being related to any employment injury or its sequelae;
(f) the opinion of Dr Porteous should be rejected as he seems to have accepted the statements of the applicant and then fails to offer any real explanation of how the claimed consequential conditions are related to the original right ankle injury. If there is a ‘material contribution’ it must be demonstrated with a logical pathway of reasoning. Dr Porteous fails to explain how the dynamics of using a stick/crutches has resulted in the consequential conditions in the upper limbs or lumbar spine, there is a lack of a scientific or medical explanation to explain how the biodynamics were allegedly altered by virtue of the right foot injury;
(g) the clinical notes show that the applicant has experienced multiple whole body aches (predominantly the lumbar spine) with prescriptions of MS Contin, a strong opioid being prescribed on a regular basis since at least 2002;
(h) the applicant is a poor historian and should be deemed unreliable as the history he gave to Dr Porteous and Dr Powell are at odds, specifically with regards to the ongoing use of crutches, and
(i) the applicant has failed to discharge his onus of proof.
[14] Folio 315 of the ARD.
In response the applicant submitted;
(a) any deficiency in the statement is easily corrected with reference to the contemporaneous medical reports which clearly document ongoing complaints in the ankle/foot, lumbar spine and upper limbs;
(b) the applicant worked with a broken foot for a period of two years before the fracture was discovered. He soldiered on despite pain and swelling, with an altered gait which, and application of ‘common sense’ would clearly explain the symptoms in the lumbar spine and shoulders, and
(c) Dr Powell’s history that the applicant abandoned the use of crutches shortly after his rehabilitation was complete is incorrect as the medical records show the applicant has continued to use crutches and other aids.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[15] (Kumar);
[15] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
(b) each case must be determined on its own facts;
(c) it is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act[16] (Moon);
(d) in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions[17] (Kooragang);
(e) a finding of a consequential condition does not require the identification of pathology[18] (Kumar);
(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(i) it is not necessary the applicant prove he suffered from ‘injury’ to the conditions claimed to be consequential, all he needs to demonstrate is that the symptoms arise from the accepted right ankle/foot injury;
(j) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury[19] (Sidiropoulos), and
(k) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition[20] (Baker).
[16] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[17] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[18] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[19] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.
[20] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
Having regard to the authorities above and the medical evidence, I find that the respondent’s criticism of the applicant’s qualified medical report was appropriate. Dr Porteous has failed to provide any rational explanation for the left foot complaints and disregarded the applicant’s statement that he hurt his left shoulder in a fall, attributing upper limb pain to the use of crutches exclusively despite this event.
However, I also find the opinion of Dr Powell to be somewhat ipse dixit. He asserts on a wholesale basis that the applicant’s symptoms in the lumbar spine and upper limbs are entirely due to preexisting age related degenerative changes and/or conditions failing to explain why that was the case. He discounts the use of crutches as impacting the spine and upper limbs on the basis that use was short term, however this is inconsistent with the applicant’s statement evidence and the contemporaneous clinical notes.
I found both qualified opinions to be wanting and only of limited assistance in my overall assessment. I preferred the contemporaneous reports of the various specialists.
In regard to the claims, I find;
Right ankle/foot
This is an undisputed injury which has significantly disrupted the applicant’s life. There is evidence that at one stage the pain was so bad that the applicant pleaded for an amputation. A spinal stimulator has provided limited relief. He has worn altered footwear since his surgery and is reliant on aids to ambulate. He has had an altered gait as a result since the injury in 2014. It is appropriate that this injury be referred to the Medical Assessor.
Left foot
There is a paucity of evidence both contemporaneous and qualified as to how symptoms in the left foot relate to the right ankle injury. There are no ongoing complaints in the general practitioners notes. For these reasons, I cannot be satisfied on the balance of probabilities and with a degree of actual persuasion (Nguyen) that this claim has been made out, I find in favour of the respondent.
Dupytren’s contracture
The applicant’s qualified evidence (Dr McGlynn) determined this to be unrelated to any workplace event or its sequelae. There were scant complaints in the general practitioners notes. For these reasons, I cannot be satisfied on the balance of probabilities and with a degree of actual persuasion (Nguyen) that this claim has been made out, I find in favour of the respondent.
Lumbar spine
There is no dispute the applicant sustained a back injury several decades ago. The clinical notes demonstrate he presented on multiple occasions since 2002 to his general practitioner and was prescribed MS Contin, a strong opioid for pain. The records however demonstrate the applicant continued to work and the back pain had little impact on his work capacity until after the right ankle injury. The respondent asserts the applicant is a poor historian and has not been entirely forthcoming about his history and so his statement and qualified evidence should be rejected outright as a complete history has not been provided. I disagree. I find the applicant to be a stoic individual who just got on with it. The evidence reveals he continued to work for two years with a fracture, adapting his gait, and footwear and undertaking daily foot strapping of the ankle so that he could continue to work. In the interim he did complain of altered gait and pain in the back and ankle to the various treating doctors including his general practitioners, Dr Low, Dr Thong and Professor Cousins.
I accept the respondent’s submission that the applicant’s statement does not outline with any precision how the use of crutches has affected his back and Dr Powell recorded that the applicant ceased to use crutches shortly after his fusion surgery in 2017.
Certainly, the applicant’s statement poorly recounts the symptoms in the lumbar spine to the use of crutches but he does make it clear that he has walked with an altered gait for many years, and that this has contributed to this back pain, a situation confirmed by his specialists. I accept Dr Porteous finding the altered gait since at least 2014 has influenced the biomechanics of the spine resulting in aggravation of the well-established pre existing problems. Dr Powell rejects this premise stating that there is no evidence to demonstrate that the use of crutches alter such dynamics. In doing so he does not refer to any medical literature and ignores the contemporaneous reports of back complaints made by the applicant to his various providers. Dr Powell made his conclusion on the basis that the applicant had made no complaint to him of any back symptoms. This may or may not be the case, but this does not override the bulk of the contemporaneous medical evidence confirming ongoing complaints of back pain following the right ankle fusion surgery arising from the altered gait and presumably the use of crutches to assist with gait.
Dr Powell postulates the applicant’s inactivity following his surgical procedures prevent a finding he aggravated pre-existing lumbar spinal pathology. It cannot be ignored that this injury occurred a decade ago. The applicant has had an altered gait since that time. The ankle pain was reportedly so extreme that he sought amputation. Spinal stimulation has failed and there has been a heavy reliance on opioid medication. I reject
Dr Powell’s theory that a decreased level of activity must mean that all symptoms are attributable to pre-existing degenerative changes. The contemporaneous records post-surgery and during pain management rehabilitation confirm ongoing complaints of back pain largely due to altered gait. I accept the opinion of Dr Porteous in this regard and specifically the altered gait has been responsible for the altering of forces of the spine, resulting in aggravation, acceleration or deterioration of any pre-existing lumbar pathology. This is consistent with the applicant’s complaints since injury.I therefore find that the balance of probabilities, and with a degree of actual persuasion the applicant has a consequential lumbar spine condition, admittedly multi factorial but related to the right ankle injury. This finding is made following a common sense evaluation (Kooragang) of the sequence of events (causal chain) which reveals the back complaints arose from the altered gait, now present for more than a decade. This condition will therefore form part of the referral to the Medical Assessor.
Upper limbs
I found the opinion of Dr Porteous to be lacking in this regard. The applicant clearly informed the doctor that he suffered a significant injury to his left shoulder when he fell down stairs due to the ankle instability, yet Dr Porteous has failed to take this significant event into account in the overall assessment of causation. Dr Powell considered that the applicant did not suffer any condition in the left shoulder as he uses his walking aid primarily on the right hand side. Dr Porteous failed to respond to this claim and specifically reference that the applicant suffered a tear in the left shoulder following a fall due to his unstable ankle!
Putting that issue aside, it is clear from the contemporaneous reports, particularly by the pain specialists, that the applicant experienced symptoms in the upper limbs as a result of the prolonged use of crutches and the fall onto the left shoulder.
Dr Powell rejects the use of crutches as being a causal factor to any condition in the upper limbs on the basis that the applicant ceased using crutches many years ago. This appears to be inconsistent with the medical evidence which reveals certainly in 2021 and beyond that the applicant continued to rely on both crutches and sticks for ambulation.
In this regard, I prefer the contemporaneous evidence which clearly establishes that applicant complained of upper limb symptoms due to use of crutches and when he struck his left shoulder during a fall. This is largely consistent with Dr Porteous’ views. The evidence suggests that the applicant has relied on either crutches or sticks since at least his surgery in 2017, if not earlier and I accept that the crutches contributed to symptoms in the upper limbs. Dr Thong documented the applicant most likely suffered a tear of the supraspinatus in the left shoulder following his fall due to ankle instability.
Overall, despite the deficiencies in the qualified evidence, my global assessment of the contemporaneous medical reports causes me to find on the balance of probabilities, and with a degree of actual persuasion the applicant has consequential conditions in both upper limbs (shoulders) as a result of not only the fall down stairs as a result of his unstable ankle but also the prolonged use of crutches/aids which have been necessary as a result of his right ankle injury. This finding is made following a common sense evaluation (Kooragang) of the sequence of events which reveals the applicant has been reliant on walking appliances for almost a decade. I acknowledge the respondent has identified the applicant was apparently awaiting right shoulder surgery as early as June 2009. This submission arises from a single entry in the clinical notes for which there is little explanation. The applicant’s statement is silent on this. My assessment of the clinical notes reveal no further complaints relating to the shoulders until the use of crutches in his post ankle rehabilitation and the fall following ankle instability. I therefore refer both upper limbs (shoulders) for assessment to the Medical Assessor.
Scarring
The scarring arises from surgical procedures relating to the right ankle/foot surgery and insertion of the spinal stimulator. This is uncontroversial and so appropriately referred to the medical assessment for assessment.
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.
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