Virtue v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Virtue v Secretary, Department of Communities and Justice [2023] NSWPIC 260
APPLICANT:	Paul Andrew Virtue
RESPONDENT:	Secretary, Department of Communities and Justice
Member:	John Turner
DATE OF DECISION:	6 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted right knee injury; accepted consequential conditions to the left knee and left ankle; disputed consequential condition of the right ankle; claim for permanent impairment compensation pursuant to section 66; Kooragang Cement Pty Ltd v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan and Moon v Conmah Pty Limited considered and applied; Held – the applicant has suffered a consequential condition of the right ankle as a result of the accepted injury to the right knee on 22 September 2013.
determinations made:

The Commission determines:

That the applicant has suffered a consequential condition of the right ankle as a result of the accepted injury to the right knee on 22 September 2013.

The Commission orders:

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 1998 for assessment as follows:
(a)    Date of injury: 22 September 2013 – Personal Injury
(b)    Body systems / parts:
(i)Right lower extremity (knee and ankle)
(ii)Left lower extremity (knee and ankle)
(iii)Scarring (TEMSKI)
(c)    Method of Assessment: Whole person impairment
The documents to be reviewed by the Medical Assessor are:
(a) Application and attached documents, and
(b) Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Paul Andrew Virtue, the applicant, was employed by the Secretary, Department of Communities and Justice, the respondent, as a disability support worker.
On 22 September 2013, whilst in the course of his work duties with the respondent, the applicant was transferring a patient to a wheelchair using a hoist. The patient had been lifted in the hoist and the applicant was twisting the hoist to place the patient into the wheelchair when he felt his right knee pop at which time, he experienced pain and was unable to weight bear. An ambulance was called, and he was transferred to Tamworth Base Hospital.
The applicant has commenced proceedings in the Personal Injury Commission (the Commission) seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment of the right lower extremity (knee and ankle), left lower extremity (knee and ankle) and TEMSKI/scarring.
The applicant claims that he sustained injury to his right knee in the above incident on 22 September 2013 and that as a result of the injury to the right knee he has suffered consequential conditions to his left knee, left ankle and right ankle. Liability for the injury to the right knee and the consequential conditions of the left knee and left ankle has been accepted by the respondent. The respondent disputes liability for the alleged consequential condition of the right ankle.
The claim for TEMSKI/scarring relates to the scarring caused by multiple surgical procedures. The surgical procedures include:
(a)    right knee arthroscopy performed on 24 June 2014;
(b)    right knee arthroscopy with meniscectomy and chondroplasty performed on 31 March 2015;
(c)    partial right knee replacement performed on 13 April 2016;
(d)    revision of right knee lateral unicompartmental replacement on 6 September 2016;
(e)    right total knee replacement on 30 March 2017;
(f)    left total knee replacement on 24 November 2020, and
(g)    left ankle medial and lateral stabilisation, arthroscopy, tendoscopy, tenosynovectomy and ostectomies on 11 March 2021.
Prior to the subject work injury on 22 September 2013 the applicant sustained injury to his left femur in a motorcycle accident in or about 1990, and in his mid-twenties he suffered a crush injury to his right ankle in a motor vehicle accident. In or about 2007 the applicant developed right knee problems.
In February 2008 Dr Doig performed a right knee anterior cruciate ligament reconstruction and left knee arthroscopy. In or about 2010 a left knee ACL reconstruction was performed. On 12 May 2011 Dr Sharp performed a right knee ACL reconstruction arthroscopically with meniscectomy, chondroplasty and cartilage harvest. On 22 October 2012 Dr Sharp performed a right knee arthroscopy with meniscectomy and chondroplasty.

ISSUES FOR DETERMINATION

There is no dispute that the applicant sustained injury to his right knee whilst in the course of his work duties with the respondent on 22 September 2013. There is also no dispute that the applicant sustained consequential conditions to his left knee and left ankle as a result of the accepted right knee injury.
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a consequential injury to his right ankle, and
(b) the degree of any permanent impairment.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 8 May 2023. Mr Stuart Grant, counsel, instructed by Ms Elizabeth Campbell, solicitor, appeared for the applicant, who was present. Mr John Dodd, counsel, appeared for the respondent, instructed by Mr Jayden Craig, solicitor. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statements

The applicant has made statements dated 12 June 2014, 16 November 2018, 26 August 2020, 2 June 2022 and 16 January 2023.
In his statement dated 12 June 2014 the applicant states that he suffered injury to his left femur in a motorcycle accident in 1990. In approximately 2007 he started having problems with his right knee without there being any specific injury.
He was referred to Dr Doig whom he saw for the first time in October 2007. Dr Doig treated his knees from October 2007 to December 2010. In February 2008 Dr Doig performed a right knee anterior cruciate ligament reconstruction and left knee arthroscopy.
In approximately 2010 he was still having problems with his left knee and was referred to Dr Sharp who performed an ACL reconstruction.
In 2012 he was again having problems with his right knee and attended on his general practitioner (GP) who referred him to Dr Sharp, orthopaedic surgeon. In 2012 Dr Sharp performed a surgical repair of a right knee meniscal tear.
Whilst in the course of his work duties with the respondent on 22 September 2013 he lifted a patient up on a hoist. The patient was elevated in a sling and as he was turning the hoist to the right to place the patient into a wheelchair, he felt his right knee pop. There was instant pain, and he was unable to weight bear. An ambulance was called, and he was taken to Tamworth Base Hospital.
Prior to the incident on 22 September 2022, he kept fit by using an exercise bike that he had at home as well as some light weights. He also went to the gym “every so often”.[1]
[1] Reply p 8.
His right knee continued to lock and was locking more frequently. It was causing more pain. He was only able to walk short distances and he was extremely limited in what he was able to do.
The applicant has provided a statement dated 16 November 2018 in which his evidence is that on 24 June 2014 a right knee arthroscopy was performed by Dr Sharp.
In approximately July 2015 his right knee started to lock and catch again. The applicant attended on Dr Sharp. On 1 February 2016 the applicant attended on Dr Sharp and reported right ankle problems. On 13 April 2016 a partial right knee replacement was performed by Dr Sharp.
In July 2016 the pain in his right knee deteriorated and the knee was giving way. On 6 September 2016 Dr Sharp performed a revision of the right lateral unit compartmental replacement on the right knee. Following surgery, he continued to have pain similar to shin splints running down the front of his right knee. He also had constant ache of the lateral (outside) side and rear lateral side of his right knee.
On 30 March 2017 total right knee replacement surgery was performed by Dr Healy. Following the surgery, he continued to have constant aching of his right knee. He was on crutches for two to three months. Due to favouring his right knee he relied heavily on his left leg and knee.
When he became more mobile, he said to his physiotherapist, Michael van der Graff, that he felt like he was constantly leaning to the left. It was found that his right leg was 8mm longer than his left. The constant leaning to the left was causing pain and some swelling of the left knee. The applicant was provided with a spacer for his shoes to give him equal leg length. The applicant noticed after each surgery that his gait was altered.
In November 2017 he was having problems with his right knee. The pain down the front and rear of the right leg was more constant and the right leg gave way a few times. He found that he was putting more pressure through his left leg due to the pain. The right leg gave way a few times due to the pain which resulted in him spraining his right ankle because of the falls.
It is the applicant’s evidence that there are days when the right leg plays up with pain and he finds at the same time it will affect his lower back, right ankle and left knee.
The applicant states that prior to the subject work injury on 22 September 2013 he was very fit and active. Now he is unable to attend the gym like he used to, such as using dumb bells, weight plates, moving benches, using the treadmill freely or using an exercise bike. He may use the treadmill, but he has to hold onto the side as he feels unsteady. He can no longer go bush walking.
The applicant provided a statement dated 26 August 2020 in which his evidence is that in early 2019 he sprained his right ankle. He was getting out of bed and went to stand when he had a sharp pain down his right shin, his ankle rolled when he put weight on his right leg. He had further minor sprains following that initial sprain. He had been experiencing that kind of pain since his half knee replacement in 2016. The pain down the right shin increased after the total knee replacement in 2017. He experiences this kind of pain two to three times per week.
On 9 September 2019 he was leaving an appointment with IPAR, rehabilitation provider, the path was uneven. His right knee had a popping and tearing sensation whilst he was walking. He fell over and sprained his right ankle as a result of the fall.
His right knee continued to give way regularly partially or completely.
His right ankle has become more painful and swollen since the total knee replacement.
The applicant provided a further statement dated 2 June 2022 in which his evidence is that his left knee was not injured in the motorcycle accident.
On 11 March 2021 left ankle surgery was performed by Dr Rao.
The pain in his right ankle, as a result of his altered gait from his other injuries, becomes very painful when his left knee is particularly aggravated, as he tends to over rely on his right leg at such times.
The applicant provided a further statement dated 16 January 2023 in which his evidence is that his motorcycle accident occurred in 1990 and that he did not suffer any injury to his right ankle in that accident.
His right ankle sustained a crush injury during in a motor vehicle accident when he was in his mid-twenties which resulted in avascular necrosis. The avascular necrosis had however been asymptomatic until the right total knee replacement in 2017.

Treating medical evidence

Dr Sharp, orthopaedic surgeon, reported to Dr Galindo on 30 August 2012 that the applicant’s right knee was giving him trouble. Up until two weeks prior his right knee had been almost asymptomatic.
An operation report records that Dr Sharp performed a right knee arthroscopy with meniscectomy and chondroplasty on 22 October 2012.
Dr Sharp reported to Dr Silva on 12 April 2013 that the applicant had injured his right ankle in a motor vehicle accident 20 years prior. As a result, the right ankle architecture is not standard. The tibia had changed its shape as had the talus. Dr Sharp thought that this was the reason for the discomfort. Most of the pain seemed to be on the outside of the ankle, however there was swelling over both sides. Dr Sharp recommended steroids for the ankle and was going to look at referring the applicant to a foot and ankle orthopod.
An operation report records that Dr Sharp performed a right knee arthroscopy with meniscectomy and chondroplasty on 31 March 2015.
Dr Sharp reported to Dr Mair on 30 July 2015 that the applicant had been going well up until a month prior, then his knee started locking and catching again. Dr Sharp observed that the left knee was also starting to pay for the right knee disability as a result of having to bear the load of the right knee.
Dr Sharp reported to Dr Mair on 1 February 2016 that the applicant’s right foot had been deteriorating due to ongoing problems with the right knee. Dr Sharp observed that the applicant had sustained an injury to his right foot in a motor vehicle accident when he was in his mid-twenties, about 20 years prior. He had developed avascular necrosis of the talus and this although not too severe had led to arthritis in the sub talar joint as well as the right ankle joint. The ankle problem had been exacerbated by the problems with the right knee.
An operation report records that Dr Sharp on 13 April 2016 performed a right knee lateral hemi-arthro unicompartmental replacement.
Dr Sharp reported to Dr Mair on 1 August 2016 that since the surgery the applicant had been suffering from anterior shin splint type pain which had been deteriorating. The applicant also had posterolateral pain that was also getting worse. The knee was also giving way.
Dr Sharp on 15 August 2016 reported to Dr Mair that the incidents of the knee giving way and the feeling of instability was increasing.
An operation report records that Dr Sharp on 6 September 2016 performed a revision of the right lateral unicompartmental replacement.
Dr Sharp reported to Dr Mair on 19 September 2016 that following the surgery there was still some posterolateral discomfort but not as bad as it had been prior to the surgery. The applicant still had the shin splint pain.
An operation report records that Dr Healey, orthopaedic surgeon, on 30 March 2017 performed a right total knee replacement.
On 16 February 2018 the applicant attended on Dr Chris Jacobs at Ann Street Family Medicine with right ankle swelling. Dr Jacobs took a history that the applicant’s knee had given way that morning and he had twisted/inverted his right ankle.
Dr Sharp reported to Dr Mair on 21 October 2019 that the applicant was walking from IPAR rehabilitation co-ordinators. The ground was uneven, and he lost his footing hurting his right ankle. There was swelling and bruising of the right ankle.
Dr Mair in a report to Centrelink dated 19 November 2019 records that Dr Sharp in 2016 diagnosed right ankle avascular necrosis of the talus from early twenties leading to early arthritis, exacerbated by limping from the knee injury. Both ankles have suffered as a result of the compensatory gait and limp. The ankles have clinically been a problem since 2014, the right ankle had been the main concern until 2019. The left knee rolling/giving way has increased the injury to the ankles. The left ankle gives way.
Dr Sharp in a report to the applicant’s solicitors dated 2 December 2019 records that the applicant’s right knee was giving him pain. The applicant also had issues with his left knee and left ankle.
Dr Sharp reported to Dr Mair on 14 May 2020 that there was pain in the left ankle as well as a feeling of instability. The ankle’s giving way was made worse by the fact that the left knee is unstable.
Dr Sharp in reported to Dr Mair on 22 May 2020 that there were many eversion injuries to the right ankle.
Dr Sharp in a report to the applicant’s solicitors dated 20 July 2020 records his opinion that the injuries to the applicant’s ankles are due to the right knee giving way.
Dr Sharp reported to Dr Mair on 5 November 2020 that the previous right knee surgery had left the applicant with a right leg a centimetre longer than the left. The applicant reported that one of the biggest problems that he had been having is the leg length discrepancy. The shorter left leg meant that he kept lurching to the left and falling.
An operation report records that Dr Sharp on 24 November 2020 performed a left total knee replacement.
An operation report records that on 11 March 2021 left ankle surgery had been performed.

Dr Hopcroft

Dr Hopcroft, general surgeon, provided a medico-legal report for the applicant dated 11 June 2014. The doctor took a history that in the 1990’s the applicant suffered a fracture of his left femur in a motorcycle accident. In a 1998 motor vehicle accident he fractured his right ankle and developed avascular necrosis of the talus.
The applicant suffered damage to his residual right lateral meniscus cartilage in the subject work-related injury on 22 September 2013 with radiologically proven changes. The applicant was suffering from right knee locking due to the injury.

Dr Christopher Oates

Dr Christopher Oates, occupational physician, provided a medico-legal report for the applicant dated 24 December 2018. The report concentrates on the right and left knee conditions. Dr Oates however does express the opinion that the applicant developed a right ankle problem exacerbated by altered weight bearing distribution through the right leg because of the right knee pain.
The applicant reported to Dr Oates intermittent right ankle pain and swelling when the right knee pain is badly flared.
The doctor records no history of right ankle injury or symptoms prior to the subject work injury on 22 September 2013.
On examination the doctor noted some mild to moderate swelling of the right ankle. Some restricted range of motion of the right ankle was also observed.
Dr Oates provided a further report dated 21 January 2020 in which the doctor records that Dr Sharp had performed a right knee arthroscopy on 24 June 2014. The knee did not improve, and a second arthroscopy was performed in late 2014 or early 2015 following which the knee worsened. The right knee was catching and locking by July 2015 and left knee pain had developed due to increased weight bearing on the left leg to compensate for the painful right knee.
Dr Oates was of the opinion that the applicant had developed a right ankle problem because of altered weight bearing distribution through the right leg secondary to the right knee pain.
Dr Oates noted that in mid-September 2019 the applicant’s right knee had given way whilst he was walking down an unevenly sloping surface on his way to an appointment with the rehabilitation provider, IPAR. The applicant had fallen to his left side and twisted his right ankle as he fell.
The applicant reported to the doctor that his right ankle swells and pains now and then but does not feel unstable.
Dr Oates was of the opinion that instability in the left ankle had resulted in inversion sprains and pain in the right ankle and lumbar spine, the “latter three conditions presumably as a result of gait alteration over a long period of time, predominantly as a result of increased weight bearing demand for the left lower extremity as a result of the right knee condition”.[2]
[2] ARD p 52.

The doctor expressed the opinion that as a result of the subject work injury to the right knee the applicant had sustained a consequential injury to the right ankle.
The doctor took no history of the crush injury to the right ankle in the motor vehicle accident when the applicant was in his mid-twenties.
Dr Oates provided a further report to the applicant dated 7 June 2022 which records that in early February 2019 the lateral left ankle pain radiating to the foot worsened. There was no incident, but the ankle just started to roll.
The applicant reported recurrent falls when his right knee would give way and he had sprained his right ankle.
Dr Oates recorded that the applicant’s right ankle plays up when his knees are exacerbated. He gets increased swelling from an old ankle injury which was aggravated, however there was no instability, and this has been the situation since the left total knee replacement.
The doctor recorded a past history of a crush injury to the right ankle which had resulted in avascular necrosis and the ankle would be periodically painful and swollen.
The doctor diagnosed:
“(i) aggravation of degenerative change in the right knee resulting in eventual total knee replacement, and (ii) aggravation of post-traumatic osteoarthritis on a background of previous anterior cruciate ligament reconstruction in the left knee resulting in left total knee replacement; and (iii) instability in left ankle resulting in inversion sprain and consequential onset of pain in the right ankle and lumbar spine as a result of gait alteration over a long period of time.”[3]
[3] ARD p 63.
On examination the doctor assessed a restricted range of motion in both ankles.

Dr Frank Machart

Dr Frank Machart, orthopaedic surgeon, provided a medico-legal report for the respondent dated 5 November 2015. The doctor appears to have only conducted an examination of the right knee.
The applicant reported to Dr Machart that due to the ongoing right knee pain he developed additional symptoms including right ankle pain.
The doctor was of the opinion that there was a lack of medical evidence suggesting that there should be right ankle pain. The doctor felt that if anything the pressure on the right leg would have been lesser than would have been the case in the absence of the right knee condition.
Dr Machart in a report dated 4 September 2019 records that the applicant reported developing left knee pain 12 months after the subject work-related incident on 22 September 2013 due to “favouring”[4] his right knee and left ankle pain two months after the total knee replacement in around the middle of 2017, allegedly because his left leg was longer after the knee replacement on the right.
[4] Reply p 19.
The doctor does not record examining the right ankle.
Dr Machart in a report dated 7 February 2022 records that within 12 months from the right knee replacement, the applicant developed pain in his left knee. The applicant reported that this was because the right leg was longer, and he was leaning to the left. He developed pain in the left ankle about two months after the knee replacement in 2017, allegedly because the left leg was shorter after the knee replacement, he was leaning towards the left.
The doctor noted a 1cm leg length discrepancy with the left leg being shorter.
The report contains no reference to an examination of the right ankle.
Dr Machart was of the opinion that the left knee osteoarthritis was not affected by the right knee condition. The doctor could also not see any connection between the right knee injury, right knee pathology and the left ankle pathology. The doctor is of the view, that the notion that a 1 cm leg length discrepancy, left shorter, would cause leaning towards the left is a hypothetical, which does not have medical support. The doctor is of the opinion that a 1cm leg length discrepancy does not cause substantial leaning to one side, and if anything, it would cause increased pressure on the longer leg rather than the shorter during ordinary walking. The doctor observed that the applicant would have been walking less than he would have been in the absence of the right knee pathology, especially since he stopped working. Dr Machart concluded that the overall pressure on the left knee and left ankle would have been less than there would have been in the absence of the right knee pathology.
Dr Machart in a report dated 5 October 2022 records that the applicant sustained a right ankle injury in a motor vehicle accident at the age of 18 years. He suffered a fracture of the left femur. The right ankle was crushed. He reported no symptoms until more recently, and then because of ‘altered gait’.
The applicant reported pain and stiffness in both ankles. On examination both ankles were swollen, right worse than left. A limited range of motion of the ankles was measured.
Dr Machart noted that he had previously expressed the view that consequential injuries to the opposite leg were without the support of evidence-based medicine. The doctor was not of the opinion that the applicant had suffered torn ligaments in his left ankle as a result of the 1cm leg length discrepancy. The doctor was of the opinion that there was no support for left ankle pathology due to altered gait.
The doctor is of the opinion that the leg length discrepancy is in the femur, and therefore reflects the previous left femoral fracture, and was not the result of knee replacement or knee injury.
The doctor noted that the applicant attributes his right ankle injury to altered gait.
The doctor is not of the opinion that the right ankle symptoms were in any way caused by the accepted injuries to the right knee, left knee and/or left ankle. The doctor found no evidence to support such a scenario.
Dr Machart is of the opinion that the right ankle injury is not related to the right knee injury sustained in the subject incident on 22 September 2013.

Dr Anthony Smith

Dr Smith, orthopaedic surgeon, provided a medico-legal report on behalf of the respondent dated 3 August 2018. On examination the doctor observed a normal range of movement of both ankles with no swelling of either ankle.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant’s submissions

In summary, through Mr Grant of counsel, the following submissions were put on behalf of the applicant.
That the opinion of Dr Machart should not be accepted. That Dr Machart, on who’s opinion the respondent relies, does not accept the concept of consequential injury. In support of this submission the applicant relied on the following passage which appears in the report of Dr Machart dated 5 November 2015:
“I am not of the opinion that left knee symptoms had developed as a result of the right knee injury. If it was thought that this was a result of altered gait, then this does not withstand medical scrutiny. He has not been able to walk more than a couple of blocks. Pressure on the left knee was much less than would have been in the absence of the injury.”[5]
[5] Reply p 16.
The applicant submitted that Dr Machart does not accept that altered gait leads to consequential injury in respect to the knees.
The applicant also relied on the following passage which appears in the report by Dr Machart dated 5 October 2022:
“I expressed my view on liability in the past, in that consequential injuries to the opposite leg were without support of evidence-based medicine. I was not of the opinion that the left ankle was subjected to torn ligaments as a result of the 1-cm leg length discrepancy, and similarly there was no support for left ankle pathology due to altered gait. Altered gait may have caused lumbar sprain. This may be the cause of the mechanical back pain, although I did not see contemporaneous evidence in support of this clinical scenario.”[6]
[6] Reply p 32.
The applicant submitted that Dr Machart does not accept that altered gait leads to consequential knee injury.
The applicant relies on the opinions of Dr Oates, Dr Sharp and Dr Mair.
It was submitted that it is the applicant’s evidence that there are day’s where the right leg plays up with pain and at the same time it will affect his lower back, right ankle and left knee.[7]
[7] ARD p 6.
The applicant has had a number of surgical procedures and as a result of those procedures has had an altered gait. The applicant submits that the altered gait is the fundamental cause of the right ankle problem.
It is the applicant’s evidence his right ankle pain, as a result of his altered gait, becomes very painful when his left knee is particularly aggravated as he tends to over-rely on his right leg at such times.[8]
[8] ARD p 12.
The applicant submitted that Dr Sharp in his report of 12 April 2013 provides background as to the state of the right ankle prior to the subject work injury on 22 September 2013. Dr Sharp noted that the applicant injured his right ankle in a motor vehicle accident 20 years prior. As a result the right ankle architecture is not standard. Dr Sharp thought that changes in the shape of the tibia and talus was the cause of the discomfort. Most of the pain seemed to be on the outside of the ankle but there was swelling over both sides.[9]
[9] ARD p 73.
Dr Sharp in his report dated 1 February 2016 records that as a result of the injury to the right ankle in a motor vehicle accident some 20 years prior avascular necrosis developed of the talus which had led to arthritis in the sub talar and ankle joint which was not “too severe”. In the doctor’s opinion the ankle problem had been exacerbated by the right knee problems.[10]
[10] ARD p 101.
The applicant submitted that Dr Sharp is of the opinion that the applicant’s right ankle problem had been exacerbated by the problems that he was having with his right knee.
The applicant submitted that Dr Sharp in his report dated 5 November 2020 explains some of the mechanics as to the manner of the function of the legs and ankles. The doctor records that previous right knee surgery had left the applicant with a right leg about a centimetre longer than the left. The applicant reported to the doctor that one of the biggest problems that he was having was that the leg length discrepancy, with the shorter left leg, meant that he keeps lurching to the left and hence falling.[11] The applicant submitted that this supports that the applicant’s altered gait is putting pressure on his right ankle.
[11] ARD p 204.
The applicant submitted that the opinion of Dr Oates that the right ankle condition is due to altered gait should be accepted. The applicant directed attention to the report of Dr Oates dated 21 January 2020 where Dr Oates states:
“There has also been instability in the left ankle resulting in inversion sprains and pain in the right ankle and lumbar spine, the latter three conditions presumably as a result of gait alteration over a long period of time, predominantly as a result of increased weight-bearing demand for the left lower extremity as a result of the right knee condition.”[12]
[12] ARD p 52.
It was submitted that the applicant’s GP, Dr Mair, also accepts that there is a causal link between the applicant’s altered gait and the development of symptoms in the right ankle. In support of this submission the applicant referred to the following passage from the report of Dr Mair dated 19 November 2019:
“Diagnosis: Dr Sharp 2016. R ankle avascular necrosis of the talus (from early 20s) leading to early arthritis here, exacerbated by the limping from the knee injury. Both ankles have suffered as a result of the compensatory gait and limp. The ankles have clinically been a problem since 2014, the R ankle had been the main concern until this year, the L ankle now suffers as much pain and disability. The L knee rolling/giving way has increased the injury to the ankles. The L ankle gives way.”[13]
[13] ARD p 174.
The applicant noted that the respondent accepts that altered gait caused injury to the left knee and left ankle.
In the applicant’s submission Dr Machart takes a philosophical view that consequential injury does not occur.

Respondent’s submissions

The respondent submitted that the issue is a factual dispute upon which the medical practitioners base their opinions. As an example Dr Mair in the report dated 19 November 2019 relies on the applicant having had problems with his right ankle since 2014. That is since the subject injury on 22 September 2013.
The respondent submitted that it is the applicant’s evidence that prior to the subject injury on 22 September 2013 he was very fit and active attending the gym using dumb bells, weight plates, moving benches, using a treadmill freely, using exercise bikes. Currently he may use a treadmill but has to hold onto the side as he feels unsteady, and he can no longer go bushwalking either.[14]
[14] ARD p 6.
The respondent submitted that the applicant’s opinion the pain in his right ankle is due to altered gait is not an opinion that he can give.
The respondent observed that it is the applicant’s evidence that suffered a crush injury to his right ankle in a motor vehicle accident in the early 1990’s during his mid-twenties which resulted in avascular necrosis. The respondent submitted that the applicant’s evidence that this was asymptomatic until the right total knee replacement in 2017[15] is incorrect.
[15] ARD p 14.
The respondent observed that within six months prior to the subject accident on 22 September 2013 the applicant had presented to Dr Sharp on 12 April 2013. The applicant provided Dr Sharp with a history in respect to his knees as well as a history of injury to his right ankle in a motor vehicle accident some 20 years prior. The doctor observed that as a result the ankle architecture is not really standard. The tibia has changed shape, as has the talus and the doctor thought that this was why the applicant was having discomfort. Most of the pain was on the outside of the ankle but there was swelling over both sides. The doctor recommended steroids into the ankle to take away the swelling and pain and allow him to mobilise without too much discomfort. Dr Sharp was going to refer the applicant to another doctor for further right ankle treatment.[16]
[16] ARD pp 73-74.
The respondent submitted that it is the applicant’s case that the right ankle symptoms occurred after the subject incident on 22 September 2013 or after the right knee replacement surgery in 2017 and that the right ankle problem has occurred due to gait alteration.
The respondent submitted that Dr Oates in his report of 21 January 2020 does not record a history that in April 2013 the applicant was having problems with his right ankle. The respondent observed that Dr Oates expressed the view that as a consequence of the injury on 22 September 2013 there has been instability in the left ankle resulting in inversion sprains and pain in the right ankle and lumbar spine, the latter three conditions “presumably as a result of gait alteration over a long period of time”, predominantly as a result of increased weight-bearing demand from the left lower extremity as a result of the right knee condition.
In the respondent’s submission Dr Oates view is based on the presumption that the applicant has got these problems now, which he didn’t have before. A presumption which is based on the wrong facts. The respondent submits that on the basis of the opinion of Dr Oates one could not be satisfied, on the balance of probabilities, that the applicant had suffered a consequential injury to the right ankle as a result of the accepted right knee injury on 22 September 2013.
The respondent submitted that mere right ankle pain is not an injury. The applicant had those symptoms within six months prior to the subject injury on 22 September 2013 and he has still got those symptoms. That for there to be injury there needs to be some physiological change as opposed to suffering symptoms.
The respondent submitted that mere proof that certain events occurred which predisposed a worker to subsequent injury will not, of itself, be sufficient: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang). Just because the applicant’s altered gait does cause some symptoms in the right ankle that is not in itself an injury. That is not a physiological change in the ankle. He had these previous problems with the altered architecture in the right ankle and the crush injury in the mid 1990’s. He still had those problems in the right ankle in 2013 and he still has those problems in 2020. That is not an injury that is just the occurrence of symptoms, symptoms which he had beforehand.
As to the question has the applicant suffered a consequential injury the applicant submitted that one firstly wouldn’t be satisfied on the balance of probabilities that the medical evidence has been formulated on the correct history. Secondly even if he suffered some symptoms in the right ankle due to altered gait, he has not suffered any physiological change giving rise to a finding of injury.

Applicant’s submissions in reply

The applicant submitted that symptoms are an indication of injury. There is no issue that the applicant had some problems with his right ankle prior to the subject accident on 22 September 2013.
Dr Sharp in his report dated 1 February 2016 records the history in respect to the previous right ankle injury and is of the opinion that the right ankle problem has been exacerbated by the right knee problem. In other words, the arthritis is being exacerbated by the altered gait.
If one takes a sensible approach to causation, we have a person who has problems with his right ankle prior to the subject work accident. That makes him more susceptible to consequential right ankle injury. He has an injury which leads to altered gait, that throws stress on the right ankle, that leads to exacerbation of symptoms in the right ankle and there is a consequential injury.

FINDINGS AND REASONS

Consideration and findings

The issue in dispute is whether the applicant has sustained a consequential condition of the right ankle as a result of the accepted injury to the right knee on 22 September 2013. The question whether a consequential condition has been sustained is a question of fact: State of New South Wales v Bishop [2014] NSWCA 354. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
It is accepted that as a result of the right knee injury the applicant has suffered consequential conditions of the left knee and left ankle.
Approximately 20 years prior to the subject work incident on 22 September 2013 the applicant sustained a crush injury to his right ankle in a motor vehicle accident when he was in his mid-twenties. As a result of this injury the applicant’s treating orthopaedic surgeon, Dr Sharp, observed on 12 April 2013 that the right ankle architecture is not standard with the talus and femur having changed shape. On 1 February 2016 Dr Sharp also observed that as a result of the injury the applicant had developed avascular necrosis of the talus which had led to arthritis in the sub talar joint and right ankle joint. It is the applicant’s evidence that the avascular necrosis was asymptomatic until the total right knee replacement in 2017.
Also prior to the subject work injury the applicant had suffered an injury to his left femur in a motorcycle accident which occurred in or about 1990. It is the applicant’s evidence that without any specific incident he started having problems with his right knee in approximately 2007. In February 2008 he underwent a right knee anterior cruciate ligament reconstruction and a left knee arthroscopy. It is the applicant’s evidence that in or about 2010 a left knee ACL reconstruction was performed.
The applicant attended on Dr Sharp on or about 30 August 2012 in respect to his right knee. Dr Sharp took a history that up until two weeks prior the right knee had been almost asymptomatic. On 22 October 2012 Dr Sharp performed a right knee arthroscopy with meniscectomy and chondroplasty.

On or about 12 April 2013, approximately six months prior to the subject work injury, the applicant attended on Dr Sharp with right ankle pain and swelling. Dr Sharp thought that the change in the ankle architecture due to the injury sustained in the motor vehicle accident was the cause of the right ankle discomfort.
Contrary to the applicant’s evidence that the avascular necrosis was asymptomatic until the total right knee replacement in 2017, the attendance on Dr Sharp on or about 12 April 2013 indicates that the right ankle was symptomatic prior to the subject work incident.
It is also indisputable, on the evidence, that the applicant had pre-existing conditions affecting both his knees. There is however no dispute that the applicant sustained injury to his right knee on 22 September 2013 and consequential conditions of the left knee and left ankle.
The respondent submits that the opinions of Dr Oates and Dr Mair as to the causal connection between the injury to the right knee and any consequential condition of the right ankle should be rejected on the bases that their opinions are based on an incorrect history.
The respondent submitted that Dr Oates in his report dated 21 January 2020 does not record that in April 2013, prior to the subject work injury to the right knee on 22 September 2013, the applicant was having right ankle problems.
It is correct that Dr Oates in his report of 21 January 2020 makes no reference to the crush injury which the applicant sustained to his right ankle in the motor vehicle accident when he was in his mid-twenties or to the right ankle problems that the applicant was experiencing when he attended on Dr Sharp in April 2013. Similarly, the earlier report of Dr Oates dated 24 December 2018 makes no reference to the previous history of injury and symptoms affecting the right ankle.
Dr Oates in his subsequent report of 7 June 2022 does however record that the applicant sustained a crush injury to his right ankle at age 26 which resulted in avascular necrosis and that the ankle would be swollen and painful periodically.[17] Dr Oates also noted in his report of 7 June 2022 in respect to the right ankle that the applicant “gets increased swelling from an old injury to the ankle, which was aggravated, however there was no instability, and this has been the situation since the left TKR.”[18]
[17] ARD p 61.
[18] ARD p 59.
Dr Oates having the history of the previous injury to the right ankle and the resulting symptomatology expressed the following opinion in his report of 7 June 2022:
“The diagnoses are:- (i) aggravation of degenerative change in the right knee resulting in eventual total knee replacement, and (ii) aggravation of post-traumatic osteoarthritis on a background of previous anterior cruciate ligament reconstruction in the left knee resulting in left total knee replacement; and (iii) instability in left ankle resulting in inversion sprain and consequential onset of pain in the right ankle and lumbar spine as a result of gait alteration over a long period of time.”[19]
[19] ARD p 63.
I do not accept the respondent’s submission that the opinion of Dr Oates is based on an incorrect history. Whilst Dr Oates may not have had the history of the prior injury to the right ankle at the time of his reports of 24 December 2018 and 21 January 2020 he was armed with that history when he provided his opinion of 7 June 2022.
The respondent submits that the applicant’s GP, Dr Mair, in forming the opinion that the pre-existing right ankle condition has been exacerbated by the limping caused by the knee injury,[20] has done so based on the applicant only having problems with his right ankle since 2014, after the subject work injury on 22 September 2013. Dr Mair states in her report of 19 November 2019:
“Diagnosis: Dr Sharp 2016. R ankle avascular necrosis of the talus (from early 20s) leading to early arthritis here, exacerbated by the limping from the knee injury.”[21]
[20] ARD p 174.
[21] ARD p 174.
It would appear that in the above passage Dr Mair is not giving her opinion but rather advising of the diagnosis and opinion of Dr Sharp in his report to Dr Mair of 1 February 2016.
It is true that whilst Dr Mair does refer to the previous injury to the right ankle when the applicant was in his twenties and the development of avascular necrosis and arthritis, the doctor makes no reference to there having been right ankle problems prior to the subject work injury on 22 September 2013. However, Dr Mair is not of the opinion that the gait alteration has caused the right ankle condition but rather that it has “increased” the injury. Dr Mair after recording the history of the previous injury to the right ankle and what would appear to be the opinion of Dr Sharp that the right ankle condition had been exacerbated by the limping from the knee injury states that “Both ankles have suffered as a result of the compensatory gait and limp”[22] and that the “L knee rolling/giving way has increased the injury to the ankles.”[23]
[22] ARD p 174.
[23] ARD p 174.
I do not accept that the opinion of Dr Mair should be rejected on the basis that the doctor does not refer to or take into account the symptomatology in the right ankle prior to 22 September 2013. The opinion of Dr Mair as to causation does need to be weighed against the evidence.
Dr Machart is of the opinion that the right ankle symptoms have in no way been caused by the accepted injuries to the right knee, left knee and/or left ankle. Dr Oates is of the opinion that opinion that the applicant has suffered an injury to the right ankle as a result of gait alteration over a long period of time. Dr Mair is of the opinion that the left knee rolling/giving way has increased the injury to the right ankle and that both ankles had suffered as a result of the compensatory gait and limp. The treating orthopaedic surgeon, Dr Sharp, is of the opinion that the applicant has suffered injury to the right ankle as a result of the right knee giving way, eversion injuries and limping due to the right knee injury.
I prefer the opinions of Dr Oates, Dr Mair and Dr Sharp to that of Dr Machart for the following reasons.
I accept that the applicant had symptoms in his right ankle prior to the subject work-related injury on 22 September 2013. I do not accept the applicant’s evidence that the avascular necrosis was asymptomatic until the total right knee replacement in 2017.
The evidence supports that following the subject incident on 22 September 2013 the applicant had problems with right knee pain, locking and catching of the right knee, giving way of the right knee, left knee pain and giving way of the left knee and left ankle pain and left ankle instability.
Dr Hopcroft when reporting on 11 June 2014 noted that the applicant was suffering from right knee locking due to the injury sustained on 22 September 2013. Dr Sharp in his report to Dr Mair on 1 August 2016 noted that the applicant had been suffering from right knee anterior shin splint type pain and posterorlateral knee pain which had been deteriorating and that the knee was giving way. Dr Sharp on 15 August 2016 reported that the incidents of the knee giving way and the feeling of instability had been increasing.
It is the applicant’s evidence that as a result of the right knee giving way, he suffered sprains to his right ankle.[24] The applicant’s evidence is supported by the medical evidence. On 16 February 2018 the applicant attended on Dr Jacobs at the Ann Street Family Medicine practice with right ankle swelling following his knee giving way which resulted in him twisting/inverting his right ankle. Dr Sharp reported on 22 May 2020 that there were eversion injuries to the right ankle and on 20 July 2020 reported that the injuries to the ankles are due to the right knee giving way. Dr Oates in his report dated 7 June 2022 noted that the applicant had suffered recurrent falls when his right knee would give way and he had sprained his right ankle.
[24] ARD p 4.
Dr Oates in his report dated 21 January 2020 records that there had been instability in the left ankle resulting in inversion sprains and pain in the right ankle.
The evidence supports and I accept that the applicant has suffered multiple sprains to his right ankle as a result of the injury to the right knee and the consequential injuries to his left knee and left ankle.
Dr Machart when providing his opinion that the right ankle symptoms have in no way been caused by the accepted injuries to the right knee, left knee and/or left ankle does not contemplate the multiple sprains suffered by the applicant to his right ankle. Furthermore, Dr Machart appears to form his opinion based on the basis that the pressure on the right leg and therefore the right ankle would have been lesser due to the favouring of the injured right knee. However, this opinion does not take into account the worsening left knee condition and the favouring of the left knee at times.
It is also the applicant’s evidence that there are days when his right leg plays up with pain and he finds at the same time it will affect his lower back, right ankle and left knee[25] and that the pain in his right ankle increases when his left knee is particularly aggravated which he attributes to over relying on the right leg at such times.[26] It is also the applicant’s evidence that his right ankle became more painful and swollen following the right total knee replacement surgery on 30 March 2017[27]. Dr Oates also reported on 24 December 2018 that the applicant reported intermittent pain and swelling in his right ankle when the right knee pain was badly flared and on 7 June 2022 Dr Oates records that the applicant reported that his right ankle plays up when his knees are exacerbated.
[25] ARD pp 6, 8.
[26] ARD p 12.
[27] ARD p 10.
The evidence supports that when the accepted right knee and left knee injuries are aggravated the right ankle symptoms are also aggravated.
The respondent submits that there has been no physiological change to the right ankle and therefore the applicant has not sustained an injury. That pain on its own without a physiological change is not an injury.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury…”
To establish that he has sustained a consequential condition of the right ankle the applicant does not have to prove that there has been physiological change. The evidence supports that the applicant has had increased symptomatology and restrictions in the right ankle as a result of gait alteration, including right ankle sprains caused by the instability of the right knee, left knee and left ankle, caused by the accepted injury to the right knee and/or the accepted consequential conditions of the left knee and ankle.
I find that the applicant has suffered a consequential condition of the right ankle as a result of the accepted right knee injury. It is not disputed that the applicant developed consequential conditions of the left knee and left ankle as a result of the injury sustained to his right knee on 22 September 2013.
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 1998 for assessment as follows:
(a)    Date of injury: 22 September 2013 – Personal Injury
(b)    Body systems / parts:
i)Right lower extremity (knee and ankle)
ii)Left lower extremity (knee and ankle)
iii)Scarring (TEMSKI)
(c)    Method of Assessment: Whole person impairment
The documents to be reviewed by the Medical Assessor are:
(a) ARD and attached documents, and
(b) Reply and attached documents.

SUMMARY

I find that:
(a) that the applicant has suffered a consequential condition of the right ankle as a result of the accepted injury to the right knee on 22 September 2013.

The Commission orders:
(a) 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 1998 for assessment as follows:
(i)Date of injury: 22 September 2013 – Personal Injury
(ii)Body systems / parts:
(1)Right lower extremity (knee and ankle)
(2)Left lower extremity (knee and ankle)
(3)Scarring (TEMSKI)
(iii)Method of Assessment: Whole person impairment
(b) The documents to be reviewed by the Medical Assessor are:
(i)ARD and attached documents, and
(ii)Reply and attached documents.

[2023] NSWPIC 260

6 June 2023