CERTIFICATE OF DETERMINATION OF MEMBER  		

Citation:	
Bray v Charlestown Refrigeration and Air Conditioning Pty Limited [2022] NSWPIC 295	
		
APPLICANT:	Stuart Bray	
		
RESPONDENT:	Charlestown Refrigeration and Air Conditioning Pty Limited	
		
Member:	Rachel Homan	
		
DATE OF DECISION:	15 June 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Claim for further lump sum compensation pursuant to section  66 of the Workers Compensation Act 1987; accepted injury to lower limbs and prior assessment of 15% whole person impairment (WPI); applicant claimed further impairment of the left lower limb and lumbar spine; consequential lumbar spine condition disputed; Held- applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor to assess the degree of further impairment to the left lower extremity and lumbar spine. 
	
determinations made:	1.	The applicant sustained a consequential condition at the lumbar spine as a result of the injury on 9 December 2009.	
		
ORDERS made:	2.	The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of further permanent impairment as follows:
Date of injury:9 December 2009
Body parts:Left lower extremity Lumbar spine (consequential condition)
Method: Whole Person Impairment (WPI)
3.	The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the document attached to the Application to Admit Late Documents lodged by the applicant on 30 May 2022.	
		
NOTATION:	4.	On 20 March 2012, the applicant was awarded $22,000 in respect of 15% WPI of the left lower extremity, right lower extremity and consequential scarring as a result of the injury on 9 December 2009 in accordance with the Medical Assessment Certificate of Dr Tommasino Mastroianni, dated 21 February 2012.

STATEMENT OF REASONS

BACKGROUND
1.	Mr Stuart Bray (the applicant) was employed by Charlestown Refrigeration and Air Conditioning Pty Limited (the respondent) as an air-conditioning mechanic. 
2.	On 9 December 2009, the applicant was ascending a ladder when the ladder suddenly gave way, causing him to fall. The applicant landed heavily on both feet from some height.
3.	The respondent’s insurer accepted liability for an injury to both legs. On 20 March 2012, the applicant was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) of $22,000 in respect of 15% whole person impairment (WPI) of the left lower extremity, right lower extremity and scarring resulting from the injury on 9 December 2009.
4.	On 5 July 2021, the applicant, through his solicitors, made a claim for further lump sum compensation pursuant to s 66 of the 1987 Act in reliance upon an assessment of 26% WPI by Occupational Physician, Dr Tim Anderson. Dr Anderson’s assessment included 7% WPI for the lumbar spine.
5.	On 25 March 2022, the respondent disputed liability for a consequential lumbar spine condition in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
6.	The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 30 March 2022. The applicant seeks further lump sum compensation in accordance with Dr Anderson’s assessment.
PROCEDURE BEFORE THE COMMISSION
7.	The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 9 June 2022. The applicant was represented by Ms Jodie Magee of counsel, instructed by Mr Sean Wright. The respondent was represented by Mr Luke Morgan of counsel.
8.	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.  

ISSUES FOR DETERMINATION
9.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant sustained a consequential condition at the lumbar spine as a result of the injury on 9 December 2009; and
(b)	the degree of any further permanent impairment resulting from the injury on 9 December 2009.
EVIDENCE
Documentary evidence
10.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents;
(b)	Reply and attached documents, and
(c)	supplementary report of Dr Tim Anderson attached to an Application to Admit Late Documents lodged by the applicant on 30 May 2022.
11.	Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
12.	The applicant’s evidence is set out in a written statement made by him on 29 March 2022.
13.	The applicant described the injury on 9 December 2009. The applicant was ascending a ladder to inspect a leaking air-conditioning unit when, without warning, the ladder gave way. The ladder slid to the right, causing the applicant fall to the left. The applicant landed heavily on both feet from a height.
14.	The applicant was conveyed to John Hunter Hospital by ambulance, where he underwent emergency surgery to his left leg and right Achilles tendon. The applicant was an inpatient for six weeks and then remained in a wheelchair until he was able to weight bear.
15.	The applicant attended physiotherapy and continued with self-directed exercises.
16.	On 1 November 2010, the applicant underwent further surgery to his left ankle. Whilst the surgery improved the dorsiflexion of the applicant’s left ankle, it remained quite restricted.
17.	The applicant was certified as fit to return to pre-injury duties on 4 May 2011.
18.	On 25 June 2018, the applicant consulted his general practitioner in relation to a flareup of his left ankle symptoms. The applicant was issued with a WorkCover certificate of capacity and referred to Dr David Nicholson for review. Dr Nicholson recommended a left ankle arthroscopy with tibial and talar ostectomies, which was performed on 16 July 2018.
19.	Following the surgery, the applicant continued to attend physiotherapy to manage his symptoms. Despite his best efforts at managing his ankle conservatively, the applicant remained in serious pain.
20.	On 15 April 2019, Dr Nicholson performed a left fibula osteotomy, ankle fusion and bone graft. Post operatively, the applicant struggled with range of motion and had difficulty getting his left foot flat on the floor.
21.	The applicant underwent revision ankle fusion and dorsiflexion osteotomy in July 2019. Post operatively, the applicant was fitted with a CAM boot in an effort to return to full weight-bearing functionality. The applicant was experiencing some intermittent neuropathic pain.
22.	The applicant continued with physiotherapy but suffered ongoing swelling, pain and inflammation at the ankle joint.
23.	On 24 April 2020, the applicant underwent a cortisone injection in an attempt to alleviate his symptoms.
24.	On 20 July 2020, the applicant reported ongoing lumbar spine symptoms associated with the change of gait and ongoing left ankle and heel problems to his general practitioner.

25.	Symptoms were reported to be getting worse on 31 August 2020. The applicant was referred for an MRI of the lumbar spine which was performed on 10 September 2020.
26.	The applicant said he first presented to his physiotherapist, Mr Warren Lovell in March 2010. 
27.	The applicant returned to Mr Lovell on 20 July 2018 following the left ankle surgery performed by Dr Nicholson. The applicant had a significant limp due to pain and stiffness. During the rehab process after the surgery, the applicant reported lumbar spine pain on a regular basis, associated with walking and standing due to altered biomechanics.
28.	The applicant stated:
“Treatment of the ankle involved mobilization and massage ROM exercises proprioceptive retraining and general gait re-education. I also obtained a specialised pair of runners to try and improve my gait. These assisted and I was better with both my ankle and lumbar spine when in them, however, I couldn't wear them at work. As a result my gait and flexibility were worse and the load on the lumbar spine/SIJ complex was increased.”
29.	Following the 2019 surgery, the applicant again spent an extended period of time in a boot which added further load to his lumbar spine due to the uneven leg length.
30.	The applicant last saw Mr Lovell in December 2019.
31.	The applicant said he had a permanently altered gait pattern and had complained of lumbar spine pain as a direct result of his gait. The applicant felt that his left side and sacroiliac joint pain were directly connected to his ankle dysfunction and the way that he now walked.
32.	The applicant said he experienced pain, weakness and limitation of movement in his lower back. The applicant had difficulty bending and twisting without pain in the lower back.
Treating evidence
33.	Amongst the body of treating evidence attached to the ARD are treating reports from the applicant’s physiotherapists at Macquarie Physiotherapy Belmont.
34.	Reports dating from 2011 showed issues with dorsiflexion which continued at the time of review on 20 July 2018. At that date, the applicant was four days post-surgery to the left ankle. Mr Lovell noted,
“So far Stuart is going well, he reports some anterior ankle pain and calf/achillies tightness however he is weight bearing well with a reasonable gait pattern.”
35.	On 3 September 2018, Mr Lovell noted:
“Not surprisingly, given the state of his joint, recovery is slow and the lack of dorsi- flexion is affecting his gait.”
36.	On 17 October 2018, the applicant underwent an MRI of the lumbar spine which showed a mild disc bulge at L4/5.
37.	On 7 December 2018, Mr Lovell prepared a report for the insurer in relation to the applicant’s lumbar spine. Mr Lovell commented:
“The MRI of Stuart’s lumbar spine is useful to rule out any unusual or sinister issues however a degenerative disk in a 40 something tradesman would be found In 80% (depending on the study) of people. Without a good history and an objective examination it doesn't really tell us very much. From the brief chat's with Stuart I suspect he has a myofacial pain syndrome from his right gluteal group and quadratus lumborum with possible SIJ or facet joint dysfunction. All of these are what you typically see from loading one leg over many years. None of these will show on MRI so the MRI findings are not really relevant. Any more specifics about structures that are affected or treatment plan would be unfounded speculation without a proper examination.”
38.	At a review on 18 June 2019, Mr Lovell noted:
“As you may be aware, Stuart is concerned that the ankle joint has been flexed slightly short of 90 degrees thus affecting his standing position. As his forefoot has loosened his stance has improved.”

39.	On 25 September 2019, Mr Lovell noted:
“I have also worked on Stuart's gait retraining. To this end Stuart is getting a pair of Hoka trainers to improve his functional gait pattern.”
40.	On 10 September 2020, the applicant underwent a further MRI of the lumbar spine, the report of which noted a history as follows:
“Worsening lower back pain, possibly related a result of left ankle injury”
41.	The MRI was reported to be normal for the applicant’s age.
42.	Mr Lovell prepared a report on 20 May 2021 in which he noted that the applicant never regained full range of movement at the ankle. Mr Lovell gave the opinion:
“The outcome of this, from a biomechanical prospective [sic], was that Stuart was left with a permanent limp. This involved (and still does) excessive knee and hip flexion to compensate for the lack of ankle mobility. This then is reflected on the left side Lumbar spine and SIJ region as excessive rotation and lateral shift which load up these structures. Additionally Stuarts lack of ankle mobility meant that crouching and squatting were limited. As a result Stuart found he was more likely to bend at his lumbar spine to work on lower jobs than he would normally. This combination of low grade/ high repetition overloading with occasional excessive loading due to his squatting limitation will have put extra force on his lumbar spine generating dysfunction and eventually pain. 
As expected, over the years Stuarts ankle deteriorated further due to the damage done in the original injury. The resultant pain and further reduction in movement would have exacerbated the increased load on the L/S and SIJ to the point of it generating pain. 
Stuart re-presented to me on 20/07/18 having had an arthroscope on the right ankle due to the spurring and osteoarthritis resulting from the original injury. At that stage Stuart had a significant limp due to pain and stiffness further putting excessive strain on the left side. It was during the rehab process for this surgery that Stuart reported lumbar spine pain on a regular basis associated directly with walking and standing due to the altered biomechanics. Treatment of the ankle involved mobilization and massage ROM exercises proprioceptive retraining and general gait re-education. Stuart also obtained a specialised pair of runners to try and improve his gait. These assisted and he was better with both his ankle and lumbar spine when in them, however, he couldn't wear them at work. As a result his gait and flexibility [sic] were worse and the load on the lumbar spine /SIJ complex was increased.
…
My last involvement with Stuart was in Dec 2019. By this stage the ankle pain had settled reasonably, however, due to the fusion, he had a permanently [sic] altered gait pattern, much as he had previously i.e excessive hip and knee flexion resulting in increased superior/inferior movement, lateral shift and extension of the L/S and SIJ. As a result Stuart was complaining of lumbar spine at that stage as a direct result of his gait 
In summary I feel Stuarts left side and SIJ pain is directly connected to his ankle dysfunction and resultant altered biomechanics. Regarding the MRI reports the lack of any significant pathology adds weight to my impression that Stuarts pain is due to overloading forces on the SIJ and lumbar spine joint stretches and surrounding musculature rather than underlying degeneration or other structural pathology.”
43.	Also in evidence is a report prepared for the applicant’s solicitors by specialist pain management physician, Dr John Prickett, dated 22 April 2021. Dr Prickett gave the opinion:
“Stuart presented to me on 27 November 2020 when he described that he fell off a ladder in his role as an air conditioning technician with injuries to his left lower limb that required extensive surgical interventions but also had an injury to his lower back that was very much exacerbated by his leg injuries. As the focus was on trying to get the maximal functional improvement with his left leg, he tolerated his lower back pain and got a reasonable level of functional improvement but had persisting lower back symptoms. Increasingly over time his lower back pain has become increasingly intrusive to his day to day functioning. 
…
On examination at the consultation he had increasing pain on the axial loading of his low back. This is almost certainly as a consequence of the initial injury due to compressive forces when he fell from a ladder but exacerbated by the postural responses to slowly recovering and rehabilitating from his very significant left leg injury. Imaging has confirmed the absence of serious structural abnormalities with spondylosis changes identified.”
Medical Assessment Certificate
44.	On 20 March 2012, the applicant was awarded lump sum compensation of $22,000 in respect of 15% permanent impairment resulting from injury on 9 December 2009 in accordance with a Medical Assessment Certificate dated 21 February 2012 by Dr Tommasino Mastroianni.
45.	Dr Mastroianni was only asked to assess the left lower extremity, right lower extremity and scarring.

46.	On physical examination, Dr Mastroianni found:
“Mr Bray is a man of stated age who walks with a slight limp, favouring the left leg. There is stiffness noted in the gait. He is not able to squat fully. He has difficulty walking on heels and toes.”
Dr Anderson
47.	The applicant relies on medicolegal reports prepared by occupational physician, Dr Tim Anderson, dated 3 November 2020, 20 June 2021 and 25 May 2022.
48.	In his first report, Dr Anderson took a history of a very severe injury to the applicant’s legs in December 2009. The applicant was able to return to work but, about two years earlier, the left ankle started deteriorating badly requiring a series of further surgical procedures, culminating in a revision ankle fusion. The left ankle was still grossly dysfunctional and this restricted the applicant’s capacity for mobility.
49.	Dr Anderson noted:
“There is also a suggestion that he may be developing low back dysfunction from his altered gait. Although he has minor restriction of movement and some irritation, this seems to be focused mostly around the right sacro-iliac joint. Although his gait is slightly altered, this is relatively minimal.”
50.	At that point, Dr Anderson was unable to link in the lower back condition with the 2009 injury, noting that there was very little in the clinical notes regarding any low back condition and MRIs performed in October 2018 and September 2020 did not demonstrate any significant dysfunction.
51.	In his report of 20 June 2021, Dr Anderson noted that since he last saw the applicant, further clinical documentation had been provided. Dr Anderson noted that Mr Lovell had addressed the issue of lower back dysfunction and advised on the reasonable connection between the dysfunction of the lower limb altering the applicant’s gait and the subsequent effect on the applicant’s lower back.
52.	This issue was also taken up by Dr Prickett who linked the lumbar condition to the original fall with subsequent exacerbation by the leg injuries.
53.	Dr Anderson was asked whether employment was a substantial contributing factor to a lumbar spine injury. Dr Anderson responded:
“Ultimately, this appears to be the case, although it may not be as direct as possibly considered. I had previously suggested that with this kind of fall I would not have been surprised if there had been direct injury to the lumbar spine. My overall impression is that there probably was, although this was largely overshadowed by the stance taken by Mr Bray (he seems to be a fairly stoical character) and also by the extent of the lower limb injury which was severe and necessitated protracted clinical management. The detailed report by Physiotherapist, Warren Lovell tends to confirm this issue as well.”
54.	Dr Anderson assessed the degree of permanent impairment of the lumbar spine and activities of daily living as 7% WPI, with a combined total of 26% WPI.
55.	Dr Anderson commented,
“A final observation, however is that if this event did not result in the condition of Mr Bray’s lower back condition, it rather begs the question as to what might have resulted in this, bearing in mind that there is no history of any other event at all.”
Dr Wallace
56.	The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr Raymond Wallace, dated 4 February 2020, 11 February 2020 and 11 March 2022.
57.	In his first report, Dr Wallace, recorded a history of treatment of the applicant’s lower limbs following the injury in December 2009. In addition, Dr Wallace, recorded complaints of symptoms at the lumbar spine:
“At his lumbar spine, he notes a constant aching pain at the left paravertebral region at L2, L3 and L4 radiating intermittently to the left buttock. The pain is worse at night, on low work or forward flexion and is relieved by a hot shower. He notes no paraesthesia or numbness at the lower limbs. He complains of weakness at his left leg. He complains of stiffness at his lumbar spine.”
58.	On examination, Dr Wallace observed that the applicant’s gait was normal.
59.	In the report of 11 February 2020, Dr Wallace commented on the lumbar spine condition:
“At the time of my review with Mr Bray on 29 January 2020, I was not of the opinion that Mr Bray had suffered any work-related injury at his lumbar spine as a result of his work incident on 8 December 2009. Mr Bray did not note the onset of lumbar spinal symptoms until 2016, some seven years post injury.
His employment with Charlestown Refrigeration & Air Conditioning is not a substantial contributing factor to any current lumbar spinal condition. Further, at the time of review with Mr Bray on 29 January 2020, he would not have rated any whole person impairment at his lumbar spine according to AMA Guides Edition 5 and WorkCover Guidelines to the Assessment of Permanent Impairment based on the examination findings at that time.”
60.	In his final report of 11 March 2022, Dr Wallace noted that the applicant had been referred to a pain specialist, Dr Prickett, since his last review of the applicant. The applicant was undergoing no active treatment for his lumbar spine condition apart from the use of anti-inflammatory medication. The applicant was utilising hot showers and a home exercise program including stretching exercises.
61.	The applicant now complained of constant aching pain at the lumbar spine at L4/5 with no radiation to his buttocks or legs. There was intermittent paraesthesia at the right buttock.
62.	On examination, Dr Wallace noted that the applicant’s gait was normal and he did not limp.
63.	With regard to the applicant’s lumbar spine condition, Dr Wallace commented:
“There is no objective medical evidence that Mr Bray suffered any work-related injury at his lumbar spine at the time of his work incident on 8 December 2009. He did not note the onset of lumbar spinal symptoms until 2016, some 7 years post injury. It is likely his current lumbar spinal symptoms are due to underlying multilevel degenerative lumbar spondylosis which is age-related, constitutional in origin and unrelated to his employment. His employment with Charlestown Refrigeration & Air Conditioning is not a substantial contributing factor to any current lumbar spinal condition.”
Applicant’s submissions
64.	The applicant confirmed that he relied on a consequential condition to the lumbar spine and not an injury to the lumbar spine. Insofar as the respondent’s dispute notice referred to s 9A of the 1987 Act, the applicant submitted that that section was not relevant.
65.	The applicant referred to the commonsense approach to causation described in Kooragang Cement Pty Ltd v Bates as that the appropriate test for determining whether a condition at the applicant’s lumbar spine resulted from the injury on 9 December 2009.
66.	The applicant confirmed that an injury to the left and right ankles was sustained, for which the applicant had been paid lump sum compensation.
67.	The applicant returned to work following the injury and worked for a number of years until his left lower extremity pain increased. The applicant underwent a number of surgical procedures to the left ankle.
68.	The applicant submitted that the medical evidence documented an increase in pain and difficulty walking. References were made to pain in the lumbar spine which was attributed to the applicant altered gait.
69.	The applicant referred to the medical evidence of the treatment of the applicant’s left ankle injury. On presentation to Lake Macquarie Emergency Department in June 2018, it was noted that the applicant could not weight bear.
70.	The applicant submitted that the insurer was made aware that the applicant was complaining of pain in his lower back in 2018. Investigations were made of the lumbar spine and the insurer a requested a report from the applicant’s physiotherapist, Mr Lovell. Mr Lovell gave an opinion to the insurer that the applicant had a condition affecting the lumbar spine due to loading one leg over many years. That condition would not show up on MRI.
71.	The applicant continued to have significant pain and dysfunction in the left ankle. The applicant’s general practitioner referred to ongoing lumbar symptoms in a consultation on 20 July 2020. The applicant was referred for further MRI.
72.	The applicant relied on the report of Dr Prickett who explained the applicant’s case. The applicant had experienced lumbar symptoms from the time of the injury. The applicant underwent significant treatment to the left ankle which overshadowed his lumbar symptoms. The applicant’s focus was on getting maximal functional improvement. However, he increasingly experienced intrusive lower back pain.
73.	The applicant submitted that a clear and distinct history of back pain increasing following the multiple surgeries to the applicant’s left ankle had been documented. The applicant sustained a significant injury to the left ankle, requiring extensive treatment. As a matter of commonsense, this would have put pressure on the applicant’s gait and ability to walk.
74.	The applicant submitted that Dr Wallace had only addressed the question of whether there was an injury to the lumbar spine and was completely silent on the question of any consequential condition. The respondent had no medical evidence on consequential condition, and no evidence to say the applicant did not suffer a consequential condition. Although Dr Wallace considered there was no objective medical evidence of a work-related injury, the applicant submitted there was objective medical evidence of a consequential condition in the reports of Mr Lovell and Dr Prickett.
75.	The applicant submitted that Mr Lovell had treated him over the entire period since the date of injury. Mr Lovell was in the best position to comment on the condition at the applicant’s lumbar spine.
76.	The applicant noted that Dr Wallace had not addressed the evidence of a consequential condition given by Mr Lovell and Dr Prickett.
77.	The applicant submitted that by the time of his 20 June 2021 report, Dr Anderson had been given clinical documentation providing a background of lumbar complaints. Dr Anderson noted Mr Lovell’s views on altered gait. The applicant submitted that the symptoms at the applicant’s lumbar spine were clearly traced and linked to the medical treatment to the applicant’s lower limbs. The applicant drew attention to Dr Anderson’s comment that no other history or event had been identified which might be responsible for the applicant’s lumbar symptoms.
78.	Taking a commonsense approach, the applicant submitted that the condition in the applicant’s lumbar spine resulted from the medical treatment to his lower limbs. Although the applicant had gone above and beyond to return to work, his back complaints, which had always been there, deteriorated significantly. The applicant submitted that the Commission would be satisfied that he had sustained a consequential condition to the lumbar spine as a result of the injury on 9 December 2009.
Respondent’s submissions
79.	The respondent noted that the applicant bore the onus of proof in establishing the existence of a consequential condition.
80.	The respondent noted that there was a gap in the treating medical evidence between 2010 and the more recent commentary from Mr Lovell some 10 years later. In that period, there was a dearth of information. The difficulty in the applicant’s case was that there appeared to be a post facto reconstruction of events whereby pathology in the applicant’s lumbar spine was assumed to have been the result of an injury more than 10 years earlier.
81.	The respondent drew attention to the comment of Mr Lovell that a degenerative disc in a forty-something tradesman would be found in 80% of cases. Without a good history and objective examination, Mr Lovell’s report was of little assistance.
82.	The respondent submitted that the first reference to issues associated with the lumbar spine appeared in 2018. The respondent submitted that there was very little reference to an altered gait. In July 2018 Mr Lovell noted that the applicant had a reasonable gait pattern. The evidence did not show a consistent record of altered gait so as to create a link to the degenerative change in the applicant’s back. At most, the applicant relied on the musings of his physiotherapist, Mr Lovell.
83.	The referral for an MRI of the lumbar spine in September 2020 only suggested the possibility of lumbar symptoms related to altered gait. There was no opinion from an orthopaedic specialist or treating doctor other than Dr Prickett who had essentially provided a medico-legal report. Dr Anderson’s opinion causation was provided some two years after his examination of the applicant. The applicant’s medicolegal evidence was consistent with a post-facto reconstruction of events.
84.	The respondent noted that much of the language in the applicant’s statement came from the medical reports. The applicant’s evidence was consistent with a retrospective attempt to try to link the lumbar spine symptoms to the injury. The worker’s task was to satisfy the Commission on the balance of probabilities that there was a consequential condition. The applicant had not discharged his onus in the absence of contemporaneous complaints to orthopaedic specialists and his treating doctors. All the applicant relied on were medico-legal reports from his physiotherapist and pain management specialist providing reconstructive opinions.
85.	The respondent accepted that Dr Wallace’s opinion was not specifically on point, but submitted that it was unsurprising that the applicant had pathology present in his lumbar spine given his occupation and age.
86.	In the absence of consistent clinical reporting of altered gait and symptoms in the lumbar spine associated with gait or treatment of the applicant’s lower limb injuries, the Commission would not be satisfied that the applicant had discharged his onus of establishing a consequential lumbar condition.
Applicant’s submissions in reply
87.	The applicant noted that the clinical records of his general practitioner had been requested but not provided. The lack of treating evidence in relation to the lumbar spine was not surprising given that the applicant had not been funded by the insurer for treatment of the lumbar spine.
88.	The applicant noted that altered gait had been identified in the medical assessment certificate of Dr Mastroianni in 2012.
89.	The applicant was consumed by the symptoms and treatment at his left ankle and wasn’t in a position to have his lumbar spine fully investigated whilst undergoing that treatment.
FINDINGS AND REASONS 
90.	It is not in dispute that the applicant sustained an injury to both legs on 9 December 2009. Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’ 
In this Act:
injury:
(a) 	means personal injury arising out of or in the course of employment,
(b) 	includes a disease injury, which means:
(i) 	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) 	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) 	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
91.	What is in dispute in these proceedings, is whether the applicant sustained a consequential condition affecting his lumbar spine as a result of his injury. It is not necessary for the applicant to demonstrate that any consequential condition at his lumbar spine is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah observed at [45]-[46]:
“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. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
92.	In Bouchmouni v Bakhos Matta t/as Western Red Services, Roche DP commented, 
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). … 
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
93.	A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates, where Kirby P said at [461] (Sheller and Powell JJA agreeing): 
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.” 
94.	His Honour said at [463]-[464]: 
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.” 
95.	It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a consequential condition affecting his lumbar spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited McDougall J stated at [44]: 
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
96.	The medical evidence before me establishes that on 9 December 2009, the applicant sustained a serious injury to both lower limbs necessitating surgery to both limbs, a protracted stay in hospital and subsequent use of a wheelchair. Although the applicant recovered sufficiently to be able to return to work for a period of almost nine years, the evidence does not suggest that he ever regained complexly normal function, particularly at the left ankle.
97.	The evidence from the applicant’s treating surgeon, Dr Nicholson, records that following the “very nasty distal tibia plafond fracture” in 2009 the applicant underwent an ankle arthroscopy with tibial and talar ostectomies. This did give him back a degree of dorsiflexion and the applicant was able to continue to function as a self-employed refrigeration mechanic before a deterioration in mid-2018, to the point where the applicant was unable to weight bear. The applicant then underwent a series of further surgeries and interventions at the left ankle between July 2018 and 2020.
98.	As noted by the respondent, there is a gap in the treating medical evidence from around 2011 to mid-2018 and a lack of reference to any lumbar symptoms in that period. The gap in the evidence is, however, entirely consistent with the history and progression of the applicant’s injury.
99.	 Although the applicant has given a history of experiencing symptoms in the lumbar spine from around the time of the injury in December 2009, he does not in these proceedings rely on an “injury” to the lumbar spine.  Although Dr Prickett and Dr Anderson have both considered an injury in the fall on 9 December 2009 to be possible, the absence of contemporaneous reporting of lumbar symptoms would present a significant evidentiary challenge for the applicant.
100.	The applicant’s case is that he experienced an increase in lumbar symptoms in around 2018 coinciding with the deterioration and further surgical treatment of his left ankle.
101.	Consistently with the applicant’s evidence there is, in the reports of Mr Lovell, contemporaneous reporting of issues with gait and altered biomechanics from around that time. There is also from late 2018, investigation of the lumbar spine by MRI and reference to lumbar symptoms.
102.	Mr Lovell, who had seen the applicant from the time of the original injury and so would be expected to have a good understanding of the applicant’s lower limb injuries and their impact upon the applicant’s lumbar spine, has given a detailed and well-reasoned explanation for his opinion that the lower limb injury has resulted in a consequential condition at the lumbar spine.
103.	Whilst Mr Lovell is not an orthopaedic surgeon, I accept that he is qualified to give the opinion that he has.
104.	Support for Mr Lovell’s opinion is also found in the report of Dr Prickett to whom the applicant has more recently been referred for pain management. The applicant’s expert, Dr Anderson, has also expressed an opinion in support of Dr Prickett’s and Mr Lovell’s opinions despite initially being hesitant to find a causal relationship between the lumbar spine and lower limb injury. By the time of his June 2021 report, Dr Anderson expressed doubt as to there being any other causal explanation for the applicant’s symptoms.
105.	On radiological investigation, the applicant’s lumbar spine appears to be unremarkable for his age. This is an observation made by several of the doctors involved in the applicant’s case. It is not necessary for the applicant to establish, however, that there is any pathology at the lumbar spine caused by the injury. All that is necessary is for the applicant to establish on the balance of probabilities that symptoms and restrictions at his lumbar spine have resulted from the 2009 injury.
106.	In this regard, Dr Wallace has misdirected himself in looking for “objective evidence of injury”. Dr Wallace has not turned his mind to the treating evidence of Mr Lovell. Nor has he considered the evidence of multiple surgeries and other interventions at the left ankle from mid-2018 onwards and their effect on the applicant’s gait and lumbar spine.
107.	Dr Wallace’s report provides no basis for me to doubt the reliability of the opinions expressed by Mr Lovell, Dr Prickett and Dr Anderson.
108.	As noted by the respondent, it is the applicant’s onus to establish on the balance of probabilities that a condition at the lumbar spine has resulted from the 2009 injury. Notwithstanding the gap in the treating evidence between 2011 and 2018 and the lack of evidence from a treating orthopaedic surgeon or general practitioner, I feel a sense of actual persuasion on the material before me that a consequential condition at the lumbar spine has resulted from the injury. The reporting of altered gait and lumbar symptoms to Mr Lovell relates contemporaneously with the deterioration of the left ankle in mid-2018 and the subsequent surgeries. Support for Mr Lovell’s view is found in the medico-legal reports of Dr Prickett and Dr Anderson.
109.	After weighing all the evidence, I am satisfied on the balance of probabilities that the applicant sustained a consequential condition at the lumbar spine as a result of the injury on 9 December 2009.
110.	It will be a matter for a Medical Assessor to determine what permanent impairment, if any, results from that condition.
111.	The applicant has provided evidence of further permanent impairment of his left lower extremity since the Medical Assessment Certificate of Dr Mastroianni. There is a medical dispute as to the degree of further impairment at that body part. In the circumstances of this case, the applicant is entitled to make one further claim for lump sum compensation under s 66 of the 1987 Act.
112.	There will be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of further permanent impairment at the left lower extremity and lumbar spine resulting from the injury on 9 December 2009. All of the materials admitted in these proceedings should be referred to the Medical Assessor for that assessment.