Twining v Transdev NSW South Pty Ltd
[2022] NSWPIC 734
•21 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Twining v Transdev NSW South Pty Ltd [2022] NSWPIC 734 |
| APPLICANT: | Daniell Twining |
| RESPONDENT: | Transdev NSW Pty Ltd |
| Member: | Michael Inglis |
| DATE OF DECISION: | 21 December 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for injury to the right foot and ankle, consequential conditions in the right knee, lumbar spine and digestive system determination; Held – referred for medical assessment of whole person impairment in respect of the right lower extremity (foot ankle and toes), lumbar spine and digestive system. |
| determinations made: | 1. That the applicant sustained injury to her right ankle and foot on 9 May 2017 and consequential injuries to the lumbar spine, toes of the right foot and digestive system. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1988 for assessment of whole person impairment as follows: Date of injury: 9 May 2017 Body systems referred: right lower extremity (foot, ankle and toes); lumbar spine; digestive system, and scarring (TEMSKI). 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Danielle Twining (the applicant) was employed by Transdev Pty Ltd (the respondent) as a team leader. She is presently aged 51 years.
The applicant was born in Sydney and finished high school at year 10. She then did a 12-month course at TAFE doing Business Administration and then entered the workforce.
On 9 May 2017, in the course of her employment, she was going down a flight of stairs holding on to the rail. Whilst stepping down on one of the lower stairs, she slipped and fell sideways and landed on her right side. She immediately felt pain in her right foot.
The applicant claims lump sum compensation pursuant to s 66 in respect of claimed injuries to the right ankle, right knee, right foot, lower back, right hip, and the nervous system.
Originally, the respondent disputed an injury to the right ankle but Mr Perry indicated that that defence was not pressed by the respondent. The injury was no longer an issue.
ISSUES FOR DETERMINATION
Initially, the respondent disputed an injury to the right ankle and foot (together with scarring) but Mr Perry indicated that that defence was not pressed by the respondent.
The parties agreed that the following injuries remained in dispute:
(a) consequential condition in the lumbar spine and activities of daily living (ADLs);
(b) consequential condition in the right knee;
(c) assessable consequential condition in the toes (peripheral nerve condition), and
(d) consequential condition in the lower gastrointestinal tract.
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.
The matter proceeded out of Teams audio video visual link on Thursday, 13 October 2022. The applicant was represented by Mr T Hickey of counsel instructed by Ms Dahdal.
Mr P Perry of counsel instructed by Ms Tancred appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account making this determination:
(a) Application to Resolve a Dispute (ARD);
(b) Reply, and
(c) Application to Admit Late Documents dated 18 August 2022.
Oral evidence
There was no application to adduce oral evidence or cross examine the applicant.
Applicant’s evidence
In her statement dated 20 February 2022 the applicant says that at the time of the accident and injury, she was working as a team leader in customer service. Her usual hours were five days a week, eight hours per day. Her duties were mainly supervising four staff members in customer service and complaints.
Following the incident, the applicant says she suffered an immediate onset of pain in her right ankle and that it became swollen. She then sat in a chair and two colleagues assisted her. She was then taken to the IMMEX Centre in Parramatta where she consulted
Dr Basobas.Her ankle was strapped and she was referred on for physiotherapy at the IMMEX Centre for three weeks. She took one week off work.
The applicant says further that when she returned to work, she was able to walk but started to experience pain in her right foot. Eventually, in July 2017, she underwent an X-ray which did not exhibit any fracture in the foot. Nevertheless, she felt a consistent and radiating pain in the foot and she would limp when she walked. She could not walk for long periods of time.
On the 14 July 2017, the applicant ceased work with the respondent. She began consulting Dr KY Ng in Baulkham Hills. Dr Ng then identified a fracture in an X-ray and MRI. He referred the applicant to Dr Scott Newman, orthopaedic surgeon.
The applicant says that following the discovery of the fracture in her right foot, she underwent three operations. In August 2017, she had a bone fragment removed by Dr Newman. She was then reviewed in October 2017 and was recommended to undergo further surgery. The applicant complains that that surgery was declined by the insurer.
In October 2018 she underwent, what she understood to be, a calcaneocuboid fusion which was performed by Dr Newman. The applicant says that this improved her pain slightly as she could walk a bit better and longer distances than before. However she states that following the surgery, the pain and sensory loss in her right toe commenced.
In June 2019 the applicant commenced employment at Comserv Pty Ltd as a customer service officer for three days a week. She says that she was only able to work there for four weeks and ceased in July 2019 as she simply could not handle the pain and did not have the capacity to continue.
In October 2019, Dr Martin removed the fusion hardware in the foot. This resulted in slight improvement in that the applicant was walking better. However, she said that she sustained nerve damage in the rest of her toes and from then on has suffered from sensory loss and numbness in her right toes. She also commenced to notice a burning pain when she walked and experienced sharp needle-like pain in the sole of her foot following this surgery.
After about 18 months, the applicant says that she commenced to experience what she thought was radiating pain from her foot in her lower back and also had some spasm. She commenced also to experience painful burning sensation in her left foot and cramping in her left leg. She put this down to overcompensating and using her left leg due to the lack of mobility and pain in her right foot. In her statement, the applicant also says relevantly that she has suffered significant weight gain. She has been restricted in her capacity to carry out most household duties and gave example of pushing and pulling a vacuum cleaner and picking up and carrying a laundry basket together with dusting or standing to do the dishes for a long period of time. She attended to those tasks but very slowly.
The applicant also detailed social activities that she enjoyed but were restricted and complained of broken sleep due to the need to change positions in bed regularly due to the pain in the foot.
At the time of the February 2022 statement, the applicant was taking Gabapentin three times a day, three magnesium glycinate 500 mg at night. Additionally she was the taking Palexia 50 mg twice a day, rabeprazole Mylan 20 mg daily, ketoprofen and ketoprofen lignocaine [ The applicant was applying clonidine cream twice daily to her right foot and back and was using a TENS machine three times a day on her foot and back. The applicant provided a second statement dated 17 August 2022.
In that statement, she says that prior to suffering the injury at work, she did not experience any gastrointestinal issues.
She said that she had been experiencing gastrointestinal issues she thought due to the vast amount of medication she took as a result of her injuries. She started experiencing these symptoms in or around November 2020. At the time of the second statement, she was taking Gabapentin 300 mg to assist with pain three times a day. She would take this medication at breakfast, lunch and dinner.
The applicant continued to take Rabeprazole 20 mg once in the morning to assist in settling her stomach acid. She further consumes an anti-inflammatory named Arcoxia 30 mg once a day.
In addition to this medication, the applicant says in her statement that she takes vitamin C, iron and magnesium tablets.
In the statement, the applicant says further that she believes that the various medications and vitamins she had been taking were responsible for significant issues. These included slowing of her metabolism and uncomfortable bloating and abdominal cramps.
The abdominal cramps can last throughout the whole day. The pain fluctuates from a radiating pain to a sharp, stabbing sensation. The cramping can happen at any time during the day.
The applicant to also takes Nurofen to assist with the pain management although it does not provide much help. When showering, she started to experience pain where her stomach would tighten and she felt like that she was going to vomit even though she never does.
The abdominal cramps are extremely uncomfortable and at times when she is driving, the applicant needs to pull over due to the pain. Her ability to manage household duties was even more restricted at the time of the second statement due principally to those activities aggravating the pain. She spends the majority of days in bed, crouched over.
The bloating complained of is constant and uncomfortable. The applicant says that she is unable to wear certain clothes such as jeans as it is too uncomfortable. As a result she tries to wear flowy items such as tracksuit pants or pyjama pants.
Since the injury the applicant has now gained 25 to 30 kg in weight
She has started experiencing extremes in digestion as well. There are times when she is constipated for days at a time and her stomach is constantly in pain. There are other times where she experiences diarrhoea often and it does not seem to be associated with any particular food consumption.
APPLICANT'S MEDICAL EVIDENCE
Dr E Gehr, orthopaedic surgeon
Dr Gehr provided a detailed medico-legal report to the applicant's solicitor on 24 August 2020. He was provided with and reviewed various clinical notes and reports which are set out in Dr Gehr’s report. That material included reports from Dr Jane Standen, pain specialist and Dr Brian Martin, foot and ankle surgeon.
At the time of Dr Gehr’s examination, the applicant complained of the following symptoms:
“Current Symptoms
She reports pain over the lateral aspect of the right ankle and the right foot, it is associated with walking. She does use orthotics.
On a scale of zero (no pain) to 10 (very severe), averages around 6.
She can stand, sit or walk for about 15 minutes at a time.
She reports stiffness of her toes.
It has been over three years since subject accident and symptoms remained between getting better and staying the same.
Onset of lumbar pain about 12 months ago, and on a scale of 0 to 10, it rates eight.”
On the basis of the complaints made to him, his examination and the material available to him Dr Gehr opined:
“Diagnosis
1. Injury involving the right ankle and hind foot involving the CC joint with three surgical procedures and residual pain and stiffness over the right ankle.
2. Peripheral nerve injuries involving right superficial and deep peroneal nerves.
3. Lumbar spine.”
Dr Gehr opined that the applicant remains significantly symptomatic with a poor prognosis. At that time, he was of the opinion that she was totally unfit for any form of work including her pre-injury duties.
Dr Gehr also noted the ongoing ingestion of the medications detailed by the claimant in her statements. In a second report bearing the same date Dr Gehr assessed the claimant's whole person impairment (WPI) including the right foot and ankle, right toes, peripheral nerves, lumbar spine, right knee, and a surgical scar. Aggregating the various body parts he assessed the WPI at 20%. In his later report of 18 February 2022, Dr Gehr was asked to comment upon reports of Dr Philip G Truskett and Associate Professor Michael Shatwell to which I will refer in more detail when considering the respondent's medical evidence. In that report Dr Gehr says relevantly:
“1 Are you of the view that our client's right foot injury has resulted in the development of lumbar spine, right knee, right ankle and right toe injuries due to her altered gait associated with the accepted right foot injury sustained when
Ms Twining twisted her right ankle when walking downstairs whilst working at Transdev New South Wales Pty Ltd? Please provide detailed reasoning with respect to same.It is my opinion that a right foot injury can cause problems in adjoining joint such as right knee, lumbar spine and right toes. Since it is simply a lever effect where injury to one joint with limited movement or stiffness produces abnormal movement (loads across nearby joints)….
3 Please provide your general commentary regarding the enclosed reports of
Dr Philip G Truskett and Associate Professor Michael Shatwell.As already stated, I am not in a position to comment on the GI problems as outlined by Dr PG Truskett.
However, in regard to the medico-legal report of Professor Michael Shatwell dated 15 December 2021, with respect I agree/disagree in the following ways:
On page 8 of his report, he states there is no link between the fracture of the right oscalcis and development of low back pain.
As previously stated, it is my opinion that altered gait can cause problems with the lumbar spine. This was from the altered mechanics of walking which produced greater loads across the lumbar spine.
On page 10 of his report he states that the injury was not related to her work activities.
I disagree that per her history I obtained, she was working in her role as a customer service officer/team leader with Transdev when she sustained an injury to that foot when she was descending a flight of stairs
On page 7, Prof Shatwell found normal examination of the forefoot, however I found reduced extension of the toes to the forefoot. That is why I had included an impairment for that region in my determination of permanent impairment.
On page 7 of his report, he found normal range of motion of both her knees, however, my range of motion of the right knee was not to 100 degrees which is not normal and, therefore, I determined an impairment related to the knee.
In terms of scars, I found determination of 2%. He found determination 1%.
He found no damage to the superficial nerves with the dorsal right foot, however, I did find damage to those nerves. I do note that my examination was on 24 August 2020 and his was 15 December 2021 which was over a year following mine. Sometimes nerve injuries can resolve over that period.
I found the DRE of one related to the lumbar spine and for activities of daily living with WPI of 2.
However, I acknowledged that the ADL should not have been included. I will make a recalculation of my final permanent impairment.
He made a determination of loss of movements of the right foot based on effusion of the calcaneocuboid joint.
I made my determination based on loss of movement of the ankle and subtalar joints.
My determination here came out 5% WPI, his came out at 9%. My final revised permanent impairment combining 5%, 4%, 4%, 4%, and 2%, WPI equals 18% [sic].”
Dr Jane Standen (sydney pain specialist)
Dr Standen provided several reports to the applicant’s general practitioner.
Dr Standen examined and assessed the applicant on several occasions between 13 February 2020 and 7 October 2021.
Dr Standen is a specialist in pain management.
In her initial report to Dr Ng of 13 February 2020, Dr Standen noted that at the time of her examination, the applicant had only been using paracetamol and ibuprofen as medication, having previously tried Endone and Panadeine Forte. From the time of that consultation, Dr Standen provided other medications including magnesium citrate and Arcoxia. These are the first of the medications that the applicant complained caused her adverse abdominal symptoms.
Also of importance is that on 14 May 2020, Dr Standen noted that the applicant was complaining of, what she described, that is the doctor, as neuropathic pain in the right foot together with nociceptive lumbar pain.
On 28 May 2020, Dr Standen noted that the applicant complained of lumbar pain exacerbated by cold weather and further complained that her tolerances were significantly reduced secondary to lumbar pain with inability to sit for more than 10 minutes. The applicant indicated that she was struggling with domestic activities of daily living and had requested help, but none had been provided.
On 24 July 2020, Dr Standen made a provisional diagnosis of Complex Regional Pain Syndrome type I. She noted that three lumbar sympathetic blocks had been performed one month apart and had been requested to facilitate rehabilitation by providing analgesia in the right foot and ankle region.
On 7 October 2021, Dr Standen noted that the applicant complained of right-sided lower lateral lumbar pain radiating over the posterior aspect of the right lower limb as far as the foot. Dr Standen recorded that the applicant informed her that the provision of SR Palexia 50mg twice daily was helpful for this pain.
Dr Standen provided a medico-legal report to the applicant's solicitors on 13 July 2022.
In that report, Dr Standen opines relevantly:
“I indicated that Danielle met the Budapest criteria for Complex Regional Pain Syndrome. She was describing symptoms and signs of all four categories including sensory, vasomotor, sudomotor, and motor changes.
As per correspondence dated 13 November 2020, I noted that Danielle described ongoing persistent neuropathic pain in the right foot. She indicated more problematic pain of secondary muscular skeletal issues with activity-related lumbar pain and right gluteal and lateral hip pain in association with gluteal enthesopathy. As per my correspondence, Daniel mobilised with an antalgic gait and was predominantly weight-bearing through the left-hand side. On examination of the lumbar region, provocative testing of the paraspinal quadrants was positive. There was tenderness at the intercessional sites of gluteal tendon complex at the level of the right trochanter. As per my correspondence, Danielle described exacerbation of lumbar facet joint pain in association with lumbar facet joint arthropathy as well as right gluteal enthesopathy in association with altered gait secondary to Complex Regional Pain Syndrome of the right foot and ankle…
As per correspondence dated 3 March 2022, I stated that Danielle’s antalgic gait, weight gain and relative immobility had continued to exacerbation of lumbar pain, in particular right-sided lumbar pain. MRI of the spine demonstrated active arthritis of bilateral lower limb facet joints as well as degenerative changes of the sacroiliac joint, which in my opinion had been exacerbated by her foot and ankle injury.”
Dr Standen was also asked to comment upon the likely aetiology of the claimant’s gastrointestinal symptoms. She responded relevantly:
“As per correspondence dated 25 February 2021, Danielle stated that gastro‑oesophageal reflux continued to be problematic. In consultation, I have suggested to Danielle that she trial a cessation of Arcoxia for four weeks in an effort if GORD improved with cessation of oral nonsteroidal anti-inflammatory. I suggest that Danielle continue to use compound cream more liberally with cessation of Arcoxia.
It is outside my scope of practice to determine whether or not Danielle's gastrointestinal injury is a result of the various medications that she has been required to take to address her chronic pain condition associated with her right foot injury. A consultant gastroenterologist would be better qualified to determine association or causation between polypharmacy and gastrointestinal injury.”
Dr Standen also commented upon A/Prof Shatwell assessment and expressed the following opinion:
“As per Associate Professor Shatwell’s assessment, he states that Danielle's right foot has reached maximum medical improvement. I am in agreement with this opinion.
He states that there is no link between the fracture of the right oscalcis and low back pain. I am not in agreement with this statement.
His prognosis is guarded in view of the presentation. I am in agreement with this opinion.
He states that “there is no aggravation, acceleration, exacerbation, or deterioration of pre-existing disease condition affecting Ms Twining’s right foot as far as I am aware”. I am in agreement with this statement.
He states that Ms Twining’s right foot injury is as a result of the fall described. It is not secondary to any other injury or disease process. It is not caused success sequential to another injury. I am in agreement with this statement.”
Dr A Scott Newman, treating surgeon
Dr Scott Newman has provided several reports relating to the treatment and management of the applicant's condition.
Relevantly, on 16 August 2018. Dr Scott Newman noted that the applicant was walking with a slightly antalgic gait pattern.
The altered gait was again noted by Dr Scott Newman on 16 October 2018.
On 1 February 2019, Dr Scott Newman records a persistent minor antalgic component to the gait and again, on 15 March 2019, he on examination recorded “today reveals an antalgic gait pattern”. This is the last report from Dr Scott Newman available to me.
Dr Anthony Greenberg, general and gastrointestinal surgeon
Dr Greenberg reported to the applicant’s solicitor on 8 September 2021. Dr Greenberg's report is both detailed and lengthy comprising some 17 pages. In that report Dr Greenberg expresses the following relevant opinion:
“Diagnosis
In my opinion, Ms Twining has:
· Gastroesophageal reflux disease.
· Probableanalgesic gastropathy.
· Medication – induced gastrointestinal motility disorder.
Ms Twining is in a difficult situation. She requires medication to control the pain and discomfort from the right foot injury and subsequent CRPS. It is recognised that the medication can cause significant adverse gastrointestinal events as documented earlier in this report.
When I interviewed Ms Twining today I am of the opinion that the combination of her right foot injury and subsequent CRPS and the adverse gastrointestinal symptoms are affecting her psyche and has had a significant impact. This seems to have set up a cycle where the various symptoms can all be interrelated and breaking the cycle can be very difficult…
Ms Twining’s current medication regime is a result of her work-related injury. It is my understanding that she has required medication since 9 May 2017.
In my opinion, while Ms Twining requires a current regime for pain control, it is unlikely her gastrointestinal symptoms will settle.
Ms Twining is unable to alter or stop the medication as she cannot get adequate pain relief on Panadol alone and needs to continue her current regime…
Her current regime involves:
· Non-steroidal anti-inflammatory drugs (Arcoxia)
· Opioids (Palexia Slow Release)
· Neuropathic medication (Gabapentin)
· Gastrointestinal
Ms Twining’s symptoms are consistent with:
· Gastroesophageal Reflux Disease (GORD).
· A medication-induced gastrointestinal motility disorder.
Ms Twining’s gastrointestinal symptoms are also complicated by her loss of mobility and excessive weight gain. Since her injury, Ms Twining has increased to weight by 30 kg.
Ms Twining was 150 cm tall and weighed 100 kg. She used to weigh 65 to 70 kg prior were injury and has increased her weight by 30 kg. She now wears size 18-20 pants where she previously wore size 10-20 pants. I calculated her BMI at 41.62 kg/m2. She would be classified as being morbidly obese. Prior to injury, she was 20.83 kg/m2, which is marginally overweight.
It is recognised that chronic stress, loss of mobility, and protracted pain aggravate, gastrointestinal motility, and more likely than not compounding Ms Twining’s.”
RESPONDENT’S MEDICAL EVIDENCE
Associate Professor Michael Shatwell, orthopaedic surgeon
Associate Professor Michael Shatwell provided a report to the respondent on
28 June 2022.Associate Professor Shatwell records complaints only in relation to the right foot ankle and back. The opinion expressed by A/Prof Shatwell is somewhat brief. He assessed the applicant as having some 8% WPI for fusion of the right foot.
In relation to the lumbosacral spine, he noted that there was no asymmetry in lateral flexion or notation and that the WPI for the lumbosacral spine was therefore best described as DRE Lumbar Category 1 impairment which is 0% WPI.
Associate Professor Shatwell does not express the opinion that the back complaints do not arise as a consequence of the injury to the right foot.
Associate Professor Shatwell reported again on 15 December 2021 in more detail.
In that report, he expressed the opinion that there was no link between the fracture of the right os calcis and the development of low back pain.
He also expressed the opinion that there was no iatrogenic (surgical) damage caused by the operative procedures performed on the applicant’s right calcaneocuboid joint. He noted that neither Dr Newman, the treating surgeon or Dr Brian Martin who performed an ultrasound in September 2019 were of the view that there was any pathology in the sural nerve which runs below the incision site which Dr Newman identified as being protected. Accordingly,
A/Prof Shatwell expressed the position that there was no loss of sensation in the territory of those nerves to justify any additional WPI.
Dr Philip G Truskett, general surgeon
Pursuant to a request by the respondent’s solicitor, Dr Truskett focused principally upon any relationship between the injury suffered by the applicant and her gastrointestinal symptoms.
He did notice on examination that the applicant walked with a limp involving the right leg and that she was able to climb on and off the examination couch without assistance but used a foot stool to do so. He noted that the applicant seemed consistent throughout the presentation and that there was no evidence of exaggeration or diminution of symptoms or signs.
Dr Truskett reported to the solicitor for the respondent on 25 November 2021 In his report, Dr Truskett noted the following under examination:
“On examination that she was a cooperative woman of normal affect. She walked with a limp involving her right leg. She stood once throughout the interview. She was able to climb on and off the examination couch without assistance but used a foot stool to do so. In his report, he referred to the report that he had available to him from Dr D Ruppin, gastrologist-hepatologist, dated 8 July 2021. Dr Truskett from that report noted relevantly:
“He described her as having symptomatic gastroesophageal reflux, newly discovered iron deficiency anaemia with recent history of loose frequent stooling with exaggerated gastric-colic reflex. He describes the result of her gastroscopy where he describes the upper digestive tract actually is normal apart from a cluster of tiny erosions in the antrum. The biopsies there do not particularly show features of drug inducted but would be one mechanism. Helicobacter seems to be excluded.
Oesophageal biopsies were taken and support the idea of reflux injury. The small bowel biopsy is normal.
Colonoscopy was normal in the caecum.”
In his report, he was somewhat critical of the examination technique of Dr Greenberg, which was limited to a video assessment as the result of the COVID restrictions applying at the time. He says relevantly:
“Medico-legal Report of Dr Anthony Greenberg (General Surgeon) dated 8 September 2021. This was a video assessment. Her history was outlined. In relation to her lower abdominal pain, he did describe abdominal cramping which was not in evidence on the history today. In relation to her upper digestive tract, she described at that time no symptoms of difficulty swallowing. On the video assessment, he did not ask her to press her abdomen and she described tenderness in the lower and upper abdomen. I am unclear as the veracity of this method of physical assessment. I found no tenderness today.
He assessed her as having a 3% whole person impairment of her upper digestive tract and a 3% whole impairment of the lower digestive tract with a combined impairment of 6% whole person impairment.”
Dr Truskett expressed the following opinion:
“As stated, her gastroesophageal reflux is a constitutional disorder. The assessment of her irritable bowel syndrome will be addressed in whole person impairment according to the WorkCover Guidelines....
There is no evidence that her work has in relation should be any relation to her gastrointestinal symptoms caused, acceleration, exacerbation or deterioration of a pre-existing disease....
In relation to her gastrointestinal tract, it is my view that she has sustained maximum medical improvement. It is unlikely her condition will deteriorate or improved by more than 3% in the next year with or without medical treatment.”
Associate Professor Allan Molloy (anaesthetist and pain management specialist)
Associate Professor Molloy provided the respondent with an initial report dated 3 December 2021. He concluded relevantly:
“The current diagnosis for Ms Twining is that she has chronic pain syndrome with likely nociceptive neuropathic and nociplastic components....
My recommendation is that this lady is referred to an alternative pain management centre for assessment of her chronic pain syndrome. According to the records, she has been with Sydney Pain Specialists for more than four years. Dr Standen is a specialist at the Pain Centre at Royal North Shore Hospital and it would be reasonable for Dr Standen to refer her there for a second opinion by the psychologist, physiotherapist and psychiatrist. There may well be other comorbidities present such as depression, stress and anxiety.”
Associate Professor Molloy was not of the opinion that proposed ketamine infusion would be an appropriate treatment for the applicant.
In a second report dated 3 December 2021, A/Prof Molloy merely confirms that the opinion expressed in the earlier report that ketamine infusion therapy was not reasonably necessary.
SUBMISSIONS
I have been assisted by relevant and erudite submissions by counsel for both parties.
Respondent’s submissions
Mr Perry conceded an injury to the right ankle and the right foot which was subject to surgery. Mr Perry also considered that the scarring at the surgical site should be assessed pursuant to the TEMSKI scale.
The consequential condition in the lumbar spine was in dispute, though the ADLs did not need to be considered in the circumstances. Mr Perry also submitted that there was no evidence of any WPI assessment which could go to a Medical Assessor for assessment.
In relation to the alleged consequential condition in the right knee, Mr Perry submitted firstly that there was no frank injury disclosed on the evidence, and therefore I could not be satisfied that there was any consequential condition.
Initially, Mr Perry submitted that I could not be satisfied that there was any peripheral nerve condition in the applicant’s toes. I understood him to resile from this position in reply following the detailed references to which I was taken by Mr Hickey in his submissions.
Appropriately, Mr Perry accepted Dr Greenburg’s expertise in the area concerning the gastrointestinal symptoms alleged to have to been suffered by the claimant. Mr Perry submitted that I should prefer the opinion expressed by Dr Truskett particularly as Dr Truskett was able to physically examine the applicant whereas Dr Greenburg’s examination was by way of videoconference only.
Mr Perry further submitted that I should prefer the opinions of A/Prof Shatwell to those of Dr Gehr.
I was referred by Mr Perry to the decision of Deputy President Roach, as he then was in the matter of Murphy v Allity Management Services Pty Ltd [215] NSWWCCPD at 49. In particular Mr Perry referred me to paragraphs 57 and 58 of that decision. I have not been assisted by the reference to that case.
Mr Perry submitted that in relation to the gastric erosions demonstrated, that, on the evidence, I could not be satisfied that there was any causal connection between the applicant’s gastrointestinal symptoms and the ingestion of medication.
In so far as the consequential condition in the right knee is concerned, Mr Perry submitted that the applicant had failed to discharge the evidentiary onus that would establish that any consequential injury in the right knee results from the injury to the applicant’s ankle and foot.
Applicant’s submissions
Mr Hickey’s submissions were very detailed.
I was provided with numerous references to material contained in the ARD. It is convenient to deal with each body part involving an allegation of consequential condition separately.
Lumbar spine
Mr Hickey has, as noted above, referred to several relevant entries in the documents. These far too voluminous for me to consider each one in detail. In this regard, I note that the references are all recorded in the transcript and I have considered each and every one of them.
There is no doubt that the fact that the applicant developed an altered gait was recorded very early in the history. The first relevant date is 13 November 2017 (ARD 108). Antalgic gait was also referred to at ARD 114, 128 and 129. Lumbar back pain is first referred to on
10 August 2019 (ARD 242) together with a reference on 14 May 2020 in a medical report to neuropathic pain and lumbar pain (ARD 153).Significantly, there is also a reference to weight gain (ARD 1,570) and yet again weight gain and the performance of a lumbar block at ARD 245 and ARD 246. Dr Standen refers to lumbar pain in her reports including on 20 March 2022 at ARD 164 there is a reference to lumbar pain on 25 January 2021. Continues with a reference to altered gait and lumbar pain by Dr Madden on 9 July 2022 (ARD 124).
Right knee
Any references to symptoms in the right knee are scant.
Right foot and toes peripheral nerves
Again Mr Hickey has taken me to several references to altered sensation in the applicant’s toes. The first reference to altered sensation in the great and second toes appeared at ARD 129. Other references appear at ARD 131, 139 and 242. These references are dated 21 October 2019 and 30 October 2019.
There are other similar symptoms in the feet and toes at ARD 243, 146, 64 and 124 to which I have had regard.
Gastrointestinal symptoms
It is the applicant’s case that the gastrointestinal symptoms which she suffers are more likely than not the result of the ingestion of the various medications that the applicant has been prescribed over a number of years. Mr Hickey correctly pointed out when making his submissions that the applicant had no pre-existing history of abdominal symptoms.
He submitted further that there was objective evidence in terms of the testing which revealed gastric erosions (ARD 95).
He submitted that Dr Greenburg, who is an expert in the relevant medical field, provides a clinically and medically-based explanation for the nexus between the medication and the symptoms from which the applicant continues to suffer.
DISCUSSION AND FINDINGS
As has been previously noted, the respondent concedes injury to the right ankle and foot, which was subject to surgery was also injured. The respondent also concedes that the applicant is entitled to assessment pursuant to s 66 for scarring of the surgical site pursuant to the TEMSKI scale. What remains in dispute is the claimed consequential conditions in the applicant’s right knee, right toes, lumbar spine and the gastrointestinal symptoms.
It is well settled though that the applicant does not need to prove that she suffered s 4 injury to the claimed body parts in addition to the right ankle and foot. The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
The applicability of those established principles was discussed by Roach Deputy President as he then was in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8.
As Deputy President Roach said at paragraph 61 in Kumar:
“61. It was not necessary to determine if Mr Kumar suffered an injury to his right shoulder under S4 of the 1987 Act. Nor was it necessary to determine if Mr Kumar had suffered ‘significant right shoulder pathology’, as Dr Wallace suggested. It was only necessary to determine if the right shoulder condition resulted from the accepted back injury. That question was a straightforward causation issue. On an objective view of the whole of the evidence, the compelling conclusion is that Mr Kumar’s right shoulder condition resulted from stress placed on it due to mobilising and transferring during his recuperative period following his back surgery. It follows that the right shoulder condition has resulted from the back injury on 19 March 2009. The claim for the cost of the proposed surgery cannot be finalised until the matter is assessed by an Approved Medical Specialist and the matter will be remitted to the registrar for that purpose.”
Right knee
Although the applicant was not required for cross-examination and as such her evidence stands, I note that there was no complaint in relation to her right knee in either of those statements. Further, a thorough examination of the medical evidence reveals a paucity of complaints in relation to the right knee.
Dr Gehr noted that despite the fact there was a normal range of motion in both the applicant’s knees upon examination, the range of motion of the right knee was not to 100 degrees which is not normal and therefore he determined an impairment related to the knee.
I am not satisfied that the necessary causal nexus is established by the evidence and accordingly I am not satisfied that the applicant suffers a consequential condition in the right knee relating as a result of the injury to her right foot and ankle.
Lumbar spine
In paragraph 13 of her statement on 20 February 2022, the applicant says she developed pain in her back which had radiated from her right foot. The plaintiff’s belief as to causation in this regard, it is not relevant. Objective evidence establishes that the applicant was first noted by a medical practitioner to have an altered/antalgic gait as early as 13 November 2017. The evidence further establishes that there have been complaints in relation to lumbar pain, off and on, ever since that time. In other words, there are continuous complaints. Dr Gehr expresses the opinion that there is a mechanical relationship between the pain reduced mobility and altered gait between the injury and the development of lumbar spinal symptoms. He describes that as a lever effect where one joint with limited movement or stiffness produces abnormal movement loads across nearby joints.
It is not unusual for persons who have suffered foot or knee injuries which impacts upon their gait to develop symptoms in the lumbar spine. The nexus between the original injury and the development of those symptoms is also supported by Dr Standen. In his first report, A/Prof Shatwell seems to accept the applicant suffered from symptoms in the lumbar spine of which she complained. In his second report, A/Prof Shatwell opines that the symptoms of low back pain cannot be related to the accident at work and concludes that the development of back pain arose because of constitutional factors.
I observe that increases in weight can also give rise to back symptoms as is supported by the evidence.
Given the medical history of complaint since the injury to the right ankle and foot by the applicant of lumbar symptoms, the absence of a history of pre-accident symptoms in the lumbar spine and the continuity of complaints, I prefer the opinion expressed by Dr Gehr, supported by Dr Standen.
I am therefore satisfied that the applicant suffers from a consequential condition which is a direct consequence of the impact on her gait and on her weight gain. The objective evidence establishes that the applicant suffers from degenerative change in the lumbar spine and this may have been aggravated by the altered gait. A/Prof Shatwell expresses the opinion that the degenerative changes would not cause by the accident which I accept and this may explain that A/Prof Shatwell’s opinion that the symptoms are constitutional in origin. But accept that the symptoms are constitutional in origin.
Gastrointestinal disorders
The applicant's second statement deals principally with her gastrointestinal issues. She says that those issues relate to the amount of medication that she has been consuming due to her injuries. Again, I take no notice of the applicant’s view in that regard. In the statement, she confirms the continued ingestion of medication set out in paragraph 20 of her original statement. There is no evidence that she suffered any symptoms of the type complained of by her prior to the work injury.
Dr Anthony Greenberg, an acknowledged expert in gastrointestinal issues, was in no doubt that the symptoms complained of by the applicant were directly related to the consumption of the described medications. He noted further that chronic stress, loss of mobility, and protracted pain aggravate gastrointestinal motility and more likely than not were compounding the applicant’s symptoms.
True it is that he did not get to physically examine the applicant as did Dr Truskett. However, Dr Greenberg does not say that his ability to diagnose and prognosticate as to causation suffered as a result of the lack of a physical examination.
I prefer the opinion expressed by Dr Greenberg in view of his expertise in this area of medical science and as the opinion fits with the objective evidence as to the onset and continuation of symptoms. Often, medication will affect individuals in different ways and the opinion of Dr Greenburg also has the attraction of common sense.
Accordingly, I am satisfied that the applicant’s gastrointestinal issues are more likely than not are caused by the medication that she has been required to ingest.
BODY PARTS FOR REFERRAL
Mr Perry submitted that it would be inappropriate for me to refer the lumbar spine for medical assessment as neither the applicant nor the respondent have evidence indicating that there is a WPI in respect to the lumbar spine that could be assessed. However, in Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18, Parker APD held relevantly:
“83. The arbitrators express reason for declining to refer the left upper extremity to the AMS was that he declined to refer a body part that had no percentage impairment. But the assessment of the degree of permanent impairment was not, even under the amended s65, a matter for the Arbitrator. Section 65(1) of the 1987 Act directed that the degree of permanent impairment should be assessed by the AMS. The AMS may take into account the account assessments by other specialists, but the AMS is required to make an independent assessment of the whole person impairment resulting from the injury.”
It could be said that the matter currently before me is distinguishable in that the consequential condition climbed in respect of the lumbar spine was in dispute. However, consistent with the reasoning of Acting Deputy President Parker, I intend to refer assessment of the lumbar spine to the Medical Assessor for assessment.
SUMMARY
The applicant sustained injury to her right foot and ankle on 9 May 2017.
Following the injury to the right foot and ankle, the applicant put on weight and developed an antalgic gait. As a result, the applicant suffers a consequential condition in the lumbar spine. The applicant also suffers a consequential condition in the form of peripheral nerve damage in the toes of the right foot. The applicant has also suffered a gastrointestinal consequential condition as a result of the ingestion of medication as part of the treatment for the injury to the foot and ankle.
I make the following orders:
(a) Matter remitted to the President for assessment of WPI in respect of following body parts / system:
(i)right lower extremity (foot, ankle and toes);
(ii)lumbar spine;
(iii)digestive system, and
(iv)scarring, TEMSKI.
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