Turner v Canterbury Bankstown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Turner v Canterbury Bankstown City Council [2024] NSWPIC 646
APPLICANT:	Brett Turner
RESPONDENT:	Canterbury Bankstown City Council
MEMBER:	Parnel McAdam
DATE OF DECISION:	21 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Consequential condition; applicant had significant left heel injury; claimed that he had a consequential condition in his right hip; consideration of how applicant’s case was put in pleadings and particulars; caution applied to clinical notes; Qannadian v Bartter Enterprises Pty Limited considered; Held – applicant suffered a consequential condition in right hip; matter referred for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition in his right hip as a result of left heel injury suffered on 5 June 2019. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 5 June 2019. Body systems/parts: left lower extremity (ankle/foot) and right lower extremity (hip). Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mr Turner suffered a significant injury at work, when he slipped and fracture his left calcaneal (heel). There is no dispute about that injury or any liability questions that arise related to it.
Unfortunately for Mr Turner, the recovery from that incident was complex. He endured three separate surgeries, and at times his wounds struggled to heal. An effect of the surgeries and the healing of the injury itself meant Mr Turner’s heel is now wider than normal, causing some issues with his foot fitting into normal footwear.
To his credit, Mr Turner returned to work, initially on a limited basis. He has had a partial recovery from the significant injury he suffered.
The issue in dispute in this matter concerns a claim for lump sum compensation. Mr Turner’s claim includes a consequential condition, being to the right hip, which he says is as a result of the accepted injury to his left heel. The respondent disputes that consequential condition.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffers from a consequential condition in his right hip, and
(b) the extent of permanent impairment as a result of injury (which will be assessed by a Medical Assessor).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to hearing on 11 November 2024. Mr Loukas of counsel appeared for the applicant, instructed by Carroll & O’Dea Lawyers. Mr Hart of counsel appeared for the respondent, instructed by Bartier Perry.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) the Reply and attached documents.
I do not intend to recite the contents of the material included before me in detail. I will provide a brief summary in the context of the relevant positions taken by the parties during the hearing here, and refer in more detail to the more pertinent points below.
The applicant’s claim is based on the reports of A/Prof Nigel Hope dated 27 September 2021 and 22 August 2023. He assesses 21% whole person impairment, arising out of the left foot and ankle, scarring, and the right hip. He attributes the right hip condition as consequential to the accepted left ankle injury.
Attached to the Application are various reports and clinical notes from Mr Turner’s treating team. Bruce Watts is an osteopath, who treated Mr Turner for post-surgical management of his left ankle. His reports detail the issues Mr Turner had with obtaining adequate footwear.
Dr Kuo is an orthopaedic surgeon who performed surgery on the heel. His reports mainly focus on the ongoing issues with that injury and the difficulties with wound healing. Dr Gunkelman is also an orthopaedic surgeon. His reports again largely traverse the issues with the left heel injury, surgery and post-surgery sequelae. In his report dated 14 November 2019, he flags the necessity for a work boot that will accommodate a widened heel. Also relevant are the various clinical notes provided by Mr Turner’s treating general practitioner.
Attached to the reply are two reports of Dr Smith. His conclusion in relation to the right hip is that Mr Turner has hip joint osteoarthritis that is a familial inherited condition, and there is no relationship between the hip joint osteoarthritis and the work injury of 5 June 2019.
Also attached to the Reply is a report of Dr Antoun, prepared as an injury management consultant. The report largely concerns capacity (as is normally the case with injury management issues) and does not directly address the issue of the right hip. It does provide a history of ongoing issues with obtaining the required shoes.

SUBMISSIONS

Both parties made oral submissions during the hearing. Those submissions were recorded. I do not intend to repeat those submissions in full but provide a brief summary below.
The applicant commenced submissions by referring to the history set out in the applicant’s statement, including the issues with healing post surgery and the problem with walking with an antalgic gait. It was submitted that the applicant explains in detail what the cause of the right hip problem is. The whole crux of the applicant’s case is that he was unable to weight bear and walk properly.
The applicant referred to the reports of A/Prof Hope and Dr Smith. In respect of Dr Smith, the applicant agrees with the conclusion that he had osteoarthritis and it’s always been there – what the applicant needs to prove is that the consequential condition results from the injury. It stands to reason that if you have a severe injury and can’t weight bear, you are going to end up with an antalgic gait. It is not answer at all for Dr Smith to say he would have always had osteoarthritis, as he was asymptomatic until some time after the work injury. In support of this submission the applicant referred to the clinical notes from 2012 until the date of injury, which show no problem with the right hip.
Following the injury, the clinical notes focus on the left heel until the first reference to the right hip in 2022 (it was agreed by the respondent during submissions that the first reference to the right hip was on 17 February 2022).
The only outrider to all of this is Dr Smith, who has not properly grappled with the issue. His terminology and reasoning are unclear, and he asked himself the wrong question. The applicant submits that it is logical, it is believable, it is incontrovertible and there should be an award in his favour.
The respondent submits that the applicant’s case has been phrased in two ways – it either arises out of the use of crutches or a permanent change in gait. It is important to keep the two mechanisms separate as A/Prof Hope doesn’t support the second case, he only supports the use of crutches. The applicant has the onus to prove his case and if there are deficiencies in both cases, then the applicant must fail.
The respondent submits that the period of use of crutches was not considerably long, consistent with the nature of surgery, which ceased towards the end of 2019. There was a complaint of right hip pain some years later attributable to crutches earlier. The respondent notes that A/Prof Hope did not take any history of pain in the hip in his 2021 report, which is unexplained. Nothing in the report of A/Prof Hope talks about the footwear issue, he only talks about the crutches. The respondent also notes that the radiology of the hip was not before A/Prof Hope.
The respondent referred to Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 and the reminder therein to use clinical records with care. It was submitted that this was the perfect case to draw an inference against the applicant.
In respect of the report of Dr Smith, the respondent submits that the history taken therein is more detailed than that given to A/Prof Hope. It was submitted that perhaps Dr Smith could have addressed the test in more detail, but I am faced with two reports from two orthopaedic surgeons which both have their faults. If I am not satisfied one way or another then the applicant must fail.
As the applicant has not discharged his onus, then he should fail.

Applicant in reply

The applicant submits that I can reject both medicolegals if I so desire. The applicant referred to the pleadings and to the applicant’s statement, and submitted that I am entitled to consider the applicant’s case proposed as a whole, and I am not bound by what A/Prof Hope says.

FINDINGS AND REASONS

The issue in this case is singular and concerns whether the applicant has suffered a consequential condition. There are a number of undisputed facts and relevant undisputed principles that inform my decision:
(a)    the first report of pain in the clinical notes occurred on 17 February 2022;
(b)    I should treat the clinical notes with caution, consistent with Qannadian (and the commonly cited authorities therein, including Mason v Demasi [2009] NSWCA 227;
(c)    the applicant has the onus to prove his case, and
(d)    the applicant suffered a significant injury to his left heal with a complicated and lengthy process to recovery, with an ongoing and irreversible widening of the heal.
The crux of the dispute in this case, as framed by the respondent, is whether I can accept that the applicant’s consequential condition was caused during the time he was using crutches (from the date of injury, until around the end of 2019 or so). The respondent submits that I am unable to accept any overuse case based on an antalgic gait taking into account the time after the applicant ceased using crutches, including the time spent waiting for appropriate footwear.
I do not accept the respondent’s construction of the applicant’s case for two reasons.
Firstly, the respondent pointed to no authority to suggest that an applicant was bound by the characterisation of their case as set out in a report of an independent medical examiner. This construction would appear to be inconsistent with s 43 of the Personal Injury Commission Act 2020 (PIC Act):
“(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Commission is also not a court and does not involve strict pleadings. The nature of the dispute between the parties is informed by the Application and the material that has been exchanged and relied upon in a dispute (Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]-[30], [46]). The claim in this case was instigated by a letter of claim dated 18 January 2024. That letter does not set out any particulars, but rather refers to the report of A/Prof Hope dated 22 August 2023. The dispute referred to the Commission involves other evidence, including the various treating practitioners referred to above, and the statement of Mr Turner dated 18 August 2024.
Secondly, I do not accept that A/Prof Hope has limited his consideration or provided an opinion based only on the use of crutches of six months after the injury. A close reading of the report of A/Prof Hope reveals this. In the executive summary on page 1 of the report he provides:
“On 5 June 2019, a left calcaneal fracture occurred at work. Three surgeries were required and there was a partial recovery. A considerable period of time was spent on crutches nonweightbearing on the left lower limb and transferring weight onto the right lower limb. As a result, right hip pain started 6 months after the left ankle injury due to preferential overload. This pain has gradually progressed and is now very significant.”
Here it is recorded that “a considerable period of time” was spent on crutches, and critically “and transferring weight onto the right lower limb”. The conjunctive “and”, in my view, can be read as separating the use of crutches (for a limited period, of about six months), with what occurred after, involving (for many years) “transferring weight onto the right lower limb”. This was due to the slow healing of the original injury and the wound that resulted, as well as the long period of time it took to obtain appropriate footwear. A/Prof Hope goes on to explain that the hip pain started six months after the injury due to preferential overload but has gradually progressed. If the respondent’s position were to be accepted, I would need to reject the evidence as set out by A/Prof Hope that the pain progressed and is now very significant.
The above executive summary is consistent with the history recorded in the report:
“Right buttock pain began nearly 2020, some 6 months after the left foot injury. This began after an extended period of preferential weightbearing on the right lower limb due to the injured left foot. Right buttock pain has gradually increased and worsened after beginning fulltime work 2 month ago in June 2023. Significant symptoms continue.”
A/Prof Hope describes it as “preferential overuse” and ultimately provides the following opinion:
“There is no lower back condition. However, a severe right hip condition is consequential to the accepted left ankle condition.
The right hip was previously symptom-free. Overload during the non-weightbearing of the left lower limb caused right hip symptoms.”
It is therefore my view that contrary to the respondent’s submissions, A/Prof Hope has not limited his consideration of the issues to the period after the initial injury to the foot whereby Mr Turner was using crutches extensively to mobilise (which, on the evidence, seems to have ended around the end of 2019), but rather the entire period of “preferential overuse” of the right limb.
This is consistent with other material before me. Mr Watts, who is an osteopath and for many years attempted to obtain appropriate footwear for Mr Turner, provides a useful picture of the progression of the condition. On 29 July 2021 (long before the first complaint to the treating general practitioner), Mr Watts records:
“Brett is now wearing 2 different size shoes to try to accommodate for his heel overgrowth. This is not completely satisfactory, and Brett is now displaying an altered walking pattern which is resulting in left foot pain in the morning and right hip pain which is resulting from altered load bearing during walking”.
On 24 March 2022, he records: “We have still been unable to gain appropriate footwear for Brett and he continues to suffer left foot pain and some spinal pain as a result of faulty gait”. A reference to the “faulty gait” is also made in the reports dated 1 November 2022 and 2 February 2023.
Meanwhile, in a report dated 26 August 2019, Dr Kuo records that “He is now able to bear weight through the leg but is still requiring crutches for balance”.
Dr Gunkelman provides a report dated 14 November 2019. At that point the wound was still in the process of healing, and the doctor hoped that it would “seal up by Easter 2020”. He opines: “To facilitate his return to work as a plumber, he need only keep the wound clean and dry and find a workboot that will accommodate his widened heel”. As we now know, that did not occur for an extensive period.
The applicant’s case as framed in the Application is in general terms only. The description of injury provides:
“The Applicant sustained a frank injury to his left heel injury on 5 June 2019 in the from of a left calcaneal fracture during the course of his employment.
As a consequence of the left heel injury the Applicant has suffered an aggravation of an underlying right hip osteoarthritis.”
The supporting medical and medicolegal evidence must be read in conjunction with the applicant’s statement. Both parties made submissions going through the statement in some detail. The critical parts of that statement are at [7]-[10]. The applicant sets out the initial problem with crutches:
“Because of how long it took to recover from these procedures, I spent quite a lot of time on crutches. I was not able to weight bare [sic] on my left leg and spent a lot of time transferring my weight onto my right side.”
This history is largely consistent with the medical evidence before me, that is an extended period requiring crutches (initially with no weight on the foot, and then later for balance). It is not clear precisely when the use of crutches ceased but it appears to be towards the end of 2019 or start of 2020. Regardless, six months of reliance on crutches is an extensive period.
However, the applicant goes on to set out his first recollection of pain and then its development:
“I notice considerable amount of pain in my right hip around 6 months after my left ankle injury. It progressed over time, and because I would always need to shift my weight from my left side due to my ankle becoming painful and stiff, this pain has worsened. The pain is localised in my right buttock and is present all the time.”
This statement, particularly the second sentence, does not limit the occurrence of the consequential condition to the use of six months. The pain first developed around then, but worsened.
The applicant then goes on to set out the significant issues he had obtaining appropriate footwear, and how he ultimately purchased his own shoes that are “less than adequate”, but that the extensive wait for appropriate shoes “was affecting my ability to weight-bare [sic] and walk properly”. This history sets out ongoing problems with an altered gait, placing extra weight on the right hand side. This is entirely consistent with the history recorded by A/Prof Hope of an initially awareness of pain caused by the use of crutches which then increased due to the altered gait following the cessation of crutches.
On the other side is the opinion of Dr Smith. I have great difficulty accepting his opinion on a general basis; his opinion in relation to the claimed consequential condition does not answer the question asked (or he asked himself the wrong question) and proceeds on a generalised view of the cause of osteoarthritis. The opinion is:
“His history since 5 June 2019 is described in the paragraphs above. He has returned to his usual full-time employment. He has symptoms from his right hip osteoarthritis which began many months after the work injury. Hip joint osteoarthritis is a familial inherited condition affecting about 20% of men and women in all walks of life in Caucasian patients, amongst which he numbers. It occurs bilaterally and generally becomes symptomatic from around about the age of 55 onwards. The mode of inheritance is not yet fully understood. There is no relationship between his hip joint osteoarthritis, which is present bilaterally, and the work injury of 5 June 2019.”

The question is not whether the applicant has osteoarthritis, or what has caused that osteoarthritis. It is clearly there and is agreed upon by both independent medical experts. The question is whether the consequential condition claimed in the right hip has been caused by the accepted work injury, in a commonsense way (Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452). The test is one of material contribution. The respondent submits the history taken by Dr Smith is more thorough. That may be the case, but his ultimate conclusion on causation cannot be accepted.
The respondent is to correct in their assertion that the applicant has the onus to prove their case. However that onus is to the case the applicant pleads – not some other case that the respondent suggests is more prominent on the evidence. The description of injury in the Application, the applicant’s statement, and the supporting medical evidence, when read together and as a whole, provide support for the contention that the applicant’s consequential condition came on as a result of favouring the right hip.
By the very nature of the condition as pleaded, it cannot be necessarily confined to a single incident, but rather the cumulation of a functional change in the way the worker was required to ambulate following the work injury. There two periods in which the right hip was affected:
(a) from the date of injury, whilst the applicant was using crutches (and at times placing weight on the right foot), for a period of about six months, and
(b) for an extensive period (a number of years) following, when the applicant was unable to wear appropriate shoes, requiring him to shift his weight to the right side.
The combined effect of both of those periods has caused the consequential condition in the right hip. The applicant first noticed pain about six months after the injury, which progressively got worse over time. The first report of pain appears in the report of Mr Watts dated 29 July 2021. The first report of right hip pain in the clinical notes appears on 17 February 2022. I accept that this is a significant period after the originally injury occurred. I am aware of the caution outlined in Qannadian. Here it seems apparent that his treating general practitioner was concerned with a more pressing problem, being the ongoing effects of the injury to the left heel and the complications arising from that injury.
Having considered all of the evidence and on the balance of probabilities, I am satisfied that the applicant has suffered a consequential condition in his right hip as a result of the accepted injury to his left heel.
The medical dispute will be referred to a Medical Assessor for assessment.

[2024] NSWPIC 646

21 November 2024