Toprak v Payless Shoes Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toprak v Payless Shoes Pty Ltd [2022] NSWPIC 448
APPLICANT:	Serap Toprak
RESPONDENT:	Payless Shoes Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	9 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation in respect of injuries caused by falls for which the applicant had not sought medical treatment while employed and by the nature and conditions employment; finding that the applicant suffered injury to her lumbar spine as result the nature of the employment; finding that she had not discharged the onus of establishing injury caused by the falls; Held — decline to refer the matter to an Medical Assessor as worker’s assessment of back impairment did not surpass the section 66 threshold of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her lumbar spine will arising out of and in the course of employment on and before 1 October 2017 namely an aggravation of a degenerative condition of low back. 2. The applicant’s employment was a substantial factor to the injury. 3. The applicant has not established on the balance of probabilities that she suffered injury to her right knee, right wrist/elbow or left ankle arising out of or in the course of employment. 4. As there is no assessment of whole person impairment in respect of the back which surpasses the s 66 threshold decline to remit the matter to the President for referral to a Medical Assessor to assess a medical dispute.

STATEMENT OF REASONS

BACKGROUND

Serap Toprak (the applicant) worked for Payless Shoes Pty Ltd (the respondent) between 1 January 2002 and 1 October 2017 when the company ceased to trade. She has not worked since that time. She alleges that during her employment with the respondent she sustained injuries to her lumbar spine, neck, right knee and left leg.
By a s 78 Notice the respondent’s insurer disputed that the applicant suffered injury in the course of her employment or, alternatively, that the employment was a substantial contributing factor to these injuries in accordance with s 9A of the Workers Compensation Act 1987 (the 1987 Act). It also disputed that the applicant had an entitlement to weekly compensation or to medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

When the matter came on for conciliation and arbitration on 28 July 2022, Mr Curran of counsel represented the applicant and Mr Grant of counsel represented the respondent. While Mr Curran indicated a willingness to negotiate, I was informed by Mr Grant that his client was not prepared to make any offer of settlement.
By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. The “Injury description” in the Application to Resolve a Dispute (the Application) is as follows:
“2004, 2010, late-2016 and nature and conditions from 2002-2017 Lumbar spine, right arm, right leg, left leg, right knee, neck, right ankle”
The applicant claims 19% whole person impairment (WPI) as a result of injuries during her employment to the lumbar spine, right upper extremity, right lower extremity and left lower extremity. The claim is based upon the report of an orthopaedic surgeon, Dr Medhat Guirgis, who saw the applicant at the request of her solicitor and provided a report dated 22 May 2019.
At the telephone conference and the conciliation conference, I used my best endeavours to bring the parties to an agreed resolution of the dispute. However, the respondent was averse to any consideration of settlement.

EVIDENCE

The documents before the Commission are:
(a) the Application and the documents attached, and
(b) the Reply and the documents attached.
There was no objection to any of the material referred to above. Neither side made an application to adduce further evidence.

Submissions

The submissions of the parties are recorded and I do not propose to address each of the arguments of counsel in these short reasons. The greater part of counsels’ address was taken up with an analysis of the medical records and reports of the applicant’s treating practitioners between 2005 and the time when she saw Dr Tomka, her present general practitioner (GP), on 19 November 2019.
Mr Grant emphasised the absence of any recorded medical history associating the claimed body parts with the applicant’s work. Conversely, there were complaints of back, neck, and shoulder pain caused by a motor vehicle accident in 2005 and right knee pain caused by a fall after she had ceased work. Mr Curran pointed to the long history of low back pain recorded in the notes of the GP and submitted that there were also entries corroborative of left ankle pain while she was at work.
Mr Grant submitted that it had not been proven that the nature of the applicant’s work over the years was sufficiently arduous to generate spinal or other pathology. Mr Curran submitted that the accounts of the work by his client and the witness, Ms Dur, established that the work which the applicant performed was sufficiently vigorous to cause back pain. He observed that the respondent’s qualified specialist, Dr Panjratan, had accepted that it was possible that these duties materially contributed to the applicant’s back pain. He argued that the applicant had performed this work over a very long period of time. It was unsurprising that it caused her to develop pain in her back.
Mr Grant argued that the applicant’s failure to acquaint the qualified medical practitioners with the motor vehicle accident in 2005 and her post-employment fall on her right knee necessitated a finding that her history and evidence was unreliable. Mr Curran submitted that there was no real basis in the circumstances of this case to make such a finding.
It will be necessary to return to the submissions of counsel in resolving the issues in dispute. It is first necessary, however, to set out in summary form the evidence of the applicant and her witness, Ms Dur. I also propose to briefly summarise the reports of Dr Guirgis, Dr Tomka and Dr Marolia, the applicant’s initial GP in the applicant’s case and the report of Dr Panjratan in the respondent’s case. In neither case do I intend these summaries to constitute a comprehensive survey of the evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

The applicant

The applicant provided four brief statements between 22 February 2019 and April 2022. By her initial statement, she says that she commenced work for the respondent as a store assistant. She continues:
“My duties involved packing shelves, customer service, stocktake and cashier work. Eventually I was promoted to manager. The company went into liquidation in or about 2016 and as a result we were all forced to find alternative work.
During my 14 year span of employment with Payless Shoes there were multiple incidents where I had fallen from ladders when attempting to get shoes from high to reach places. The work was also very repetitive at the cashier and we were forced to hold heavy boxes in the shop.
I began to develop pain in my right knee, my right wrist, by back and my left ankle. The pain would at the very beginning come and go and I did not take much notice of it however it has now become increasingly worse. I eventually attended upon my GP and underwent investigative scans which indicated significant damage to those parts of my body.”
By a supplementary statement, dated 12 March 2020, the applicant says that she experiences pain and discomfort in the neck, back and right arm. Her right knee is also painful. It stems “from an incident that occurred in or about 2008 whilst in the course of my employment when I fell, landing heavily on my right knee.” She states that she saw a GP in Hurstville following this injury. She continues:
“The other injuries I had affecting my neck, back and right arm occurred during the course of my employment with Payless however these injuries were not well recorded and no claims for compensation were made at the time. As I recall, I did not submit a claim for compensation in respect of the 2008 injury to my right knee.”
The applicant says that her current GP is Dr Tomka who has referred her for an MRI scan of the neck and back and also referred her to a neurosurgeon.
By a third statement of 22 October 2020, the applicant reiterates the evidence that she gave in her two earlier statements. She recounts that at the “very beginning” her pain would come and go and she did not take much notice of it.” She states:
“Prior to the injuries I had never suffered from any previous physical injuries to my right knee, right wrist, back and left ankle. I have not been involved in any motor vehicle accidents, public liability type accidents or other accidents.”
By her ultimate statement, the applicant refers to the statement of the witness, Ms Dur, which was obtained following further enquiries after her previous proceedings in the Commission were discontinued on 2 June 2022. She also elaborates on the injury in 2004. She states this occurred when she was using a step ladder to put away shoes about “3 or so from the floor”. She states that she missed a step and fell onto the floor “landing heavily on my back and right side in a rolling ball.” She states her right knee and ankle made direct contact with the floor at this time.
The applicant recalls that she was severely shaken after the fall and experienced pain in the back and neck. She states that she was in a “high degree of pain” the following day. She took sick leave for a period of two weeks. She states that as she was young she felt that she would “come good”. After that incident, she had some degree of aching and was afraid that if she made “any issue about things” she could lose her job.
The applicant states that she had a second fall in about 2010 at the Hurstville store which happened in “a similar way to the first fall”. She fell heavily on her right side. She says that she again suffered pain in her neck, back, right arm and her right knee and ankle. Once again she says that she took things “easier at work for a few weeks and continued on in her employment.”
A third fall occurred in a store at Bankstown in late 2016. The applicant describes the event thus:
“Unfortunately I was towards the top of the ladder and slipped and fell off it again landing on my feet but my momentum carried me in a heavy fall down onto the floor. Ms Dur came to my assistance and I rested for a time to recover from pain in my back, neck, right arm, right knee and right ankle. I went home and managed to return to work in a restricted way the next day because Christmas was very busy and I forced myself to keep going.”
The applicant says that since she ceased work, she has experienced increasing pain and discomfort in her back, neck, right arm, right knee and right ankle. But she states that she is restricted both occupationally and domestically.

Filiz Dur

In a brief signed statement, Ms Dur says that she worked for the respondent for 10 years. She states that she has witnessed the applicant “injuring herself in 2 separate shifts”. She states that on one occasion she fell off the ladder while she was putting away men’s shoes. The second incident was in 2015 or 2016. She continues:
“We used to get stock in almost every day and they were massive cartons, sometimes 40 cartons with shoe boxes, and they all had to be put on shelves and climb up on ladders and put away…even pulling shoes down for customers was used with ladders and the boxes were too high on top of shelves…ladders were used every day…even myself have injured myself so many times…”

Dr Guirgis

Dr Guirgis saw the applicant and provided a report to her solicitors on 22 May 2019. He recorded that during the course of her work for the respondent she was required to perform heavy lifting, bending, carrying multiple boxes, working up ladders and rearranging the front of the stores as well as “serving customers, a lot of computer work, cleaning, vacuuming, dusting mirrors.”. He recorded the history of a gradual onset of complaints in her low back in 2013/2014. She also complained of “falls from ladders at work over the years that were not reported”. It was after one of these falls that her right knee became swollen and she saw a doctor.
Dr Guirgis records that while the applicant continued to do her duties she started to experience pain in her right wrist, right knee and left ankle and her back pain worsened “forcing her to drop the full-time hours in 2015” and work fewer hours.
Dr Guirgis recorded that the applicant had pain at the top of her bilateral shoulder blades, a painful stiffness of her right wrist, low back pain and pain and stiffness in the right knee “with attacks of giving way”, he recorded attacks of swelling along the outer border of her left ankle.
On examination of the right wrist, Dr Guirgis found evidence of irritability of the median nerve in the carpal tunnel with positive Tinel’s and Phalen’s signs. He found spasm and restriction of movement of the lumbar spine without neurological deficits. In respect of the right knee, he found that while movement of the knee joints were normal, there was tenderness over the lateral patella facet articular surface. There was retropatellar crepitation and a painful clicking on extension of the knee. In respect of the ankle, he found some “minimal soft tissue fullness” over the anterior talofibular ligament.
Dr Guirgis expressed the opinion that the “post traumatic” symptoms in her low back, right wrist joint, right knee and left ankle related to either her work or more of the ladder incidents. In respect of her right wrist, he opined that the applicant suffered carpal tunnel syndrome. He acknowledged that causation of this condition was multifactorial but suggested that occupational risk factors play a “significant role in the development of carpal tunnel syndrome”.
Dr Guirgis stated that:
“Although she strained her lumbar spine, right wrist, right knee and left ankle on a number of occasions after falling down from ladders at work, yet on each occasion the resultant soft tissue injury recovered to a reasonable extent but leaving microdamage to the collagen-based tissues and, on each occasion she continued with her injury duties without reporting the incidents for fear of losing her job. The situation slowly worsened, and she started to struggle to keep up with her duties forcing her to drop the full-time hours in 2015 and did casual work less hours and less days.”
Dr Guirgis also expressed the opinion that the applicant’s employment was a substantial contributing factor to her injuries. He assessed WPI in accordance with the SIRA Workers Compensation Guidelines for the Evaluation of Permanent Impairment in respect of each site.

Dr Tomka

Dr Tomka saw the applicant on 19 November 2019. He also recorded that the applicant was required to perform heavy work in her employment. She experienced gradual onset of back pain in 2013/2014 and “also had a few falls from ladders at work over the years that were not reported”. Dr Tomka recorded that following one of these falls the applicant consulted a medical practitioner because of swelling of the right knee.
After examining the applicant, Dr Tomka concluded that she suffered injury to the cervical spine, lumbar spine, right wrist, right lower extremity and left lower extremity. He was in no doubt that her injuries were “a direct consequence of the course of employment with Payless Shoes.” He was not aware of any pre-existing condition. She had a partial loss of earning capacity of a permanent character.

Dr Marolia

Dr Marolia provided a report to the applicant’s solicitors dated 28 January 2021. He stated that she had “complained of pains in her arms, legs and neck and back over a period of
4-5 years”. He continued:
“She did not present to me on a particular date with an evented injury at her employment site with Payless Shoes. Hence this was not processed as a WorkCover injury and no WorkCover certificates were issued.
It was not until much later when she mentioned that she had been having difficulties with her workplace due to repeated aches and pains in her back, wrist, neck and legs because she had to lift heavy objects and her work involved repeated bending and lifting and packing.”
Dr Marolia records that the applicant was referred to Dr McKechnie a neurosurgeon. He opines that the applicant’s pain is “fairly well controlled” with conservative management. However she could only do light duty work which did not involve repeated bending and packing duties. He states:
“As I expressed in the beginning of this report, there was no actual history of event given to me of any trauma sustained by Mrs Toprak at the ‘time’ of the event. However, she continued to mention ad-hoc, on different visits that she had difficulties at work with lifting heavy boxes, repeated bending and packing during the course of her employment at Payless Shoes.”

Dr Panjratan

Dr Panjratan saw the applicant at the request of the respondent’s insurer on 11 November 2019. He took a history of the applicant’s work which included the removal of shoe boxes from larger cartons and positioning them on shelves in the store. He recorded that she stated that her back was “the biggest problem” and that she had right knee pain as a result of a fall “around 2002-2003”. Her knee pain persisted since that time. In respect of the applicant’s right wrist, Dr Panjratan found no abnormality of motion on examination and no signs of carpal tunnel syndrome.
Dr Panjratan expressed the opinion that while the MRI demonstrated some thickening of the median nerve there were “no classical symptoms of carpal tunnel syndrome”. He opined that work was not a substantial contributing factor to her condition and “did not qualify for any impairment” he expressed a similar opinion in respect of the left wrist.
In respect of the left ankle, Dr Panjratan found no abnormality on examination, although the ultrasound revealed some changes suggestive of an old sprain. He continued:
“Work is not a substantial contributing factor and she does not qualify for any impairment.”
He expressed a similar opinion in respect of the applicant’s plantar fasciitis.
In respect of the applicant’s right knee, Dr Panjratan found no abnormality on X-rays and reported that she had full unrestricted movement of the knee on examination. He expressed the opinion that work was not a substantial contributing factor and the applicant did not qualify for any impairment.
In respect of the lumbar spine, Dr Panjratan accepted that the applicant had “mechanical low back pain”. He stated that this was:
“possibly related to the nature and conditions at work.”
However, he expressed the opinion that work was no longer a substantial contributing factor and she did not qualify for impairment.

FINDINGS AND REASONS

It was accepted by counsel that as the claim was solely for permanent impairment compensation, the role of the Commission is to determine liability issues: see Greater TareeCity Council v Moore [2010] NSWWCCPD 49. In this case the liability issues are the occurrence of injury and substantial contributing factor. Resolution of those issues depends on a consideration of both the factual and the medical opinion evidence. As Dr Panjratan points out, the different body parts alleged by the applicant to have been injured in the course of her employment have to be considered separately. For the purpose of these proceedings, it is only necessary to deal with those injuries/body parts on which the claim for permanent impairment is founded.
There was disagreement at the arbitration hearing as to the nature of the applicant’s work. Mr Grant submitted that it was not arduous physical work. It is true that the applicant’s description of her work is quite terse. Nonetheless, I accept that during her 15 years of employment with the respondent, the applicant frequently had to perform work involving repetitive bending and, to a lesser extent, some lifting. Ms Dur’s account of the work which the applicant was performing from time to time is consistent with that view of the evidence. The respondent adduced no contrary evidence.

Importantly, Dr Panjratan recorded a history of the nature of the work performed by the applicant over the years which is reasonably consistent with my finding. He concluded that it was possible that this work was a causative factor in the onset of her low back pain.
Dr Guirgis and both of the applicant’s GPs have expressed the opinion that there is a casual connection between the employment duties and the applicant’s back pain, although Dr Marolia does so with some hesitation. In view of the unanimous medical opinion on this issue, it is difficult to accept the respondent’s submission that the work was incapable of causing back pain.
Mr Grant also relied on the absence of any account in the clinical notes of Dr Marolia implicating work in the aggravation of the applicant’s low back condition. While there are numerous references to back and limb pain in the notes of Dr Marolia prior to the applicant’s cessation of work, there is no reference to employment being a source of that pain. However, Dr Marolia does record in his report that the applicant:
“continued to mention ad-hoc, on different visits that she had difficulties at work with lifting heavy boxes, repeated bending and packing, during the course of her employment with Payless Shoes.”
While one might give considerable weight to the description of an injury/incident at work or at home in the notes of a GP, in my opinion little weight can be placed on the absence of a record of a work process or a work connection when there is no accident or incident but merely the performance of the ordinary duties of a patient’s employment. Obviously, a note which suggested another cause of back pain might be significant. But that is not the case here. As Mr Curran submitted, the applicant’s complaints of back pain to medical practitioners over the years are consistent with the medical opinion that they were associated with her employment.
There are, however, two aspects of the medical history which do not sit well with this conclusion. First, on 27 August 2008, Dr Marolia recorded that the applicant had a “long history” of back pain. That is not entirely consistent with the problem commencing at work and progressing in the last years of her employment. Secondly, and of more concern, the applicant reported to the doctor that she was involved in a motor vehicle accident on 1 October 2008 after which she experienced pain in her neck, back, right shoulder and leg. That is inconsistent with the statement in her evidence that she had not suffered injury in a motor vehicle accident.
A consideration of the doctor’s notes, however, suggest that the applicant only saw medical practitioners in Dr Marolia’s practice in connection with her back pain on one occasion in the months following the motor vehicle accident. One might infer that the effects of the motor vehicle incident on the applicant’s back was transient. The position is different with the right shoulder pain and I will refer to that further below.
While the evidence on the issue contains some imperfections, and I do not accept aspects of her evidence, I have concluded on the balance of probabilities that the applicant aggravated a constitutional condition of her low back by reason of the nature of her duties over the long period that she was employed by the respondent. Contrary to Dr Guirgis’ opinion, I am not satisfied that the frank incidents alleged had any measurable impact on the course of her disease. The absence of contemporaneous medical evidence following the falls also makes it difficult to conclude that employment was a substantial contributing factor to the disease.
As it was not suggested that there were other significant causes of the aggravation applicant’s condition by the nature of work, I also find that the employment was a substantial contributing factor to the low back injury. It is unnecessary to consider whether the effects of the injury persist to the present.
While I accept a causal nexus between the applicant’s work and her back pain, I have considerable reservations about the reliability of aspects of her evidence, particularly in respect of events/incidents which occurred many years ago. There are several glaring inconsistencies between her account of the development of her symptoms and the contemporaneous medical evidence.
I accept the instruction from the Court of Appeal that clinical notes and medical histories are to be treated with great caution. However, in this case, both counsel relied on aspects of the contemporaneous record. Further, the events in issue occurred many years ago. In those circumstances, the contemporaneous medical record may assume importance.
First, there is the motor vehicle accident after which the applicant reported right shoulder pain to Dr Mariola’s practice on several occasions. Standing alone this is of slight weight. Of more importance, is the history recorded by Dr Konidaris, an orthopaedic surgeon, who the applicant saw in respect of the condition of her right knee on 28 March 2019. The doctor records the following:
“She tells me she has had long term clicking and mild pain. This may relate to the years of Tae Kwon Do. However, about a year ago she fell while crossing the road and landed on the front of her knees. There was a graze on the front of the knee and then subsequent to this, approximately 7-8 months later she developed a painful clicking. She noticed this while her Dad was in hospital and she was getting up and down the stairs regularly. She developed a painful click. The pain was in the anterior aspect of the knee and was associated with stiffness and locking. The issues have been going on since then and currently she complains of burning sensation when using stairs or when going up and down inclines.”
Dr Konidaris also recorded a background history which included severe anxiety and post-traumatic stress disorder, diabetes and hypertension, gall bladder, chronic low back pain and occasional paraesthesia in the left foot. He took no history of employment injury.
Plainly, the history recorded by Dr Konidaris in respect of the right knee is radically different to that recorded by Dr Tomka, Dr Panjratan and Dr Guirgis. There is no reference to a work injury to the applicant’s right knee, or any pre-existing problem in the right knee other than that associated with taekwondo in this history. Conversely, there is no reference to the fall while crossing the road or the commencement of significant symptoms after the applicant left work in the reports of the medico-legal specialists. The applicant made no attempt to explain these radically different histories in respect of her right knee in evidence. I am not persuaded that the evidence establishes that the applicant suffered injury to the right knee in the course of her employment. The radically different histories concerning the onset of knee pain make it difficult to unreservedly accept her evidence.
Thirdly, the contemporaneous record of the applicant’s right wrist injury is inconsistent with her account to the medico-legal specialists. The clinical history of the applicant’s right wrist complaint commences with a record of Dr Marolia’s of 25 July 2018. Certainly, I was not referred to any earlier notation in the clinical record. Dr Marolia recorded tingling and numbness in the right hand and queried whether the applicant suffered carpal tunnel syndrome. He referred her for an X-ray and ultrasound after which he diagnosed “early Carpal tunnel syndrome”.
The applicant returned to Dr Marolia on 31 July 2018 and advised that she still had pain her right wrist and she was treated with Voltaren and a splint. At that consultation she also complained of right knee pain. Dr Mariola referred the applicant to Dr Simon McKechnie, a neurosurgeon, in respect of symptoms in the right arm. Dr McKechnie expressed the opinion that she may have “ulnar nerve pathology”. He also noted that the applicant complained of chronic neck pain. After he last reviewed the applicant on 1 June 2020, he recorded the following:
“The cervical MRI demonstrated a minimal C5/6 disc protrusion without thecal sac or nerve root impingement. She was complaining of intermittent paraesthesia through the right forearm and hand as well as left sided neck pain radiating intermittently across the jaw and proximal shoulder. She complained of lower back pain radiating into the left leg.”
Dr McKechnie recorded that nerve conduction studies of the upper limbs were normal. He stated that:
“There is no significant structural pathology evident on multiple investigations.”
He stated that there was no significant structural pathology on investigation that could be “directly related to her employment”. He stated that repetitive movements and repetitive lifting however can cause inflammation/tendonitis.
The first relevant notation of symptoms in the right wrist/elbow occurs nine months after the applicant ceased work. The absence of a recorded complaint while the applicant was working must be contrasted with the need for significant treatment following the consultation on 25 July 2018. The medico-legal reports do not contain a history that is consistent with these matters.
If the right wrist/elbow symptoms were causally connected with the employment, It is difficult to understand why the condition commenced or materially worsened creating a need for treatment nine months after the applicant ceased her employment. There is no explanation for this phenomena in the evidence of the applicant or in the medical evidence. Plainly, the absence of any complaint of pain in the clinical history in the years prior to the applicant’s cessation of work detracts from the proposition that employment was one of the factors which materially contributed to her wrist pain. It also makes it difficult to find that employment was a substantial contributing factor to the wrist/elbow injury.
There is also a difficulty with Dr Guirgis’ diagnoses in respect of the alleged wrist injury. His assertion that the applicant has carpal tunnel syndrome, has not been borne out by the electrical testing. Dr Panjratan did not find these signs on examination and rejected the diagnosis of carpal tunnel syndrome. More importantly, the applicant’s treating neurosurgeon, who has carried out a thorough investigation, states that there is no structural deficit in her upper limbs. In these circumstances, it is difficult to accept Dr Guirgis’ opinion in respect of the wrist. In my opinion the applicant has not proven that she suffered injury to her wrist in the course of her employment.

The fourth body part assessed by Dr Guirgis is the applicant’s left ankle. He does not suggest that she continues to be troubled by plantar fasciitis. Rather, he diagnosed post-traumatic contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures of the ankle. He relates this to the several falls which the applicant alleges in the course of employment. It is difficult, however, to reconcile Dr Guirgis’ evidence on this point with the clinical record.
As far as I can ascertain, complaints in respect of the applicant’s ankle commence on 16 August 2017, when Dr Nagamma recorded the following:
“left foot very painful, moving houses but no h/o obvious injury, cellulitis? very painful. exclude dvts. Tendinitis”
Dr Nagamma prescribed Keflex and referred the applicant for investigations including an X-ray of her left foot and left ankle.
On 21 August 2017, Dr Marolia discussed the outcome of the investigations with the applicant. He advised massage, heat, rest, plantar heel and arch supports. He thought that the applicant experienced a ligament strain and plantar fasciitis. The applicant continued to complain of symptoms in her right foot and ankle, although these seem to be overtaken by the onset of more significant intercurrent medical conditions.
It is evident from the above, that the applicant did not assert that symptoms in her left ankle were related to a fall or falls in her employment at the consultation on 16 August 2017. While I accept that the applicant probably had falls at work, it is not clear from her evidence that she suffered injury to her left ankle as a result one or more of these falls. There is no evidence that she complained to a medical practitioner of symptoms in her left ankle following a fall. Certainly, she did not consult the Rickard Road Medical Centre following a fall at work.
Finally, as indicated above, I doubt that the applicant’s account of the origins of her symptoms are reliable. In those circumstances, I do not accept Dr Guirgis’ opinion that the onset of symptoms in the applicant’s ankle were a delayed manifestation of microtrauma sustained in one or more of these falls.
I propose to make the following findings:

SUMMARY

The applicant suffered injury to her low back arising out of and in the course of employment on and before 1 October 2017 namely an aggravation of a degenerative condition of her low back.
The applicant’s employment was a substantial factor to the injury.

The applicant has not established on the balance of probabilities that she suffered injury to her right knee, right wrist/elbow or left ankle arising out of or in the course of employment.
As there is no assessment of whole person impairment in respect of the lumbar spine which surpasses the s 66 threshold decline to remit the matter to the President for referral to a Medical Assessor to assess a medical dispute.

[2022] NSWPIC 448

9 August 2022