Boyd v Nepean Spare Parts Pty Ltd [2022] NSWPIC 110 (18 March 2022)

Last Updated: 31 March 2022

STATEMENT OF REASONS

BACKGROUND

1. In an Application to Resolve a Dispute (ARD), Mr Darren Boyd (the applicant) claimed lump sum compensation in respect of injury on 18 January 2009 in the course of his employment with Nepean Spare Parts Pty Ltd (the respondent). Injury claimed was in respect of hernia injury, consequential left ankle condition and consequential lumbar spine condition.

2. In a section 78 notice dated 29 July 2020, the workers compensation insurer (GIO) disputed the consequential lumbar spine condition. The hernia injury and consequential left ankle condition were not in dispute.

PROCEDURE BEFORE THE COMMISSION

3. At a conciliation/arbitration hearing on 20 January 2022, the applicant was represented by

Mr Brown of counsel, instructed by Ms DeFreitas, solicitor and the respondent by

Ms Compton of counsel, instructed by Mr Bennett.

4. 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

5. The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:

(a) the ARD and attached documents, and

(b) Reply and attached documents.

Oral Evidence

6. There was no application to cross-examine the applicant or to provide oral evidence.

Statement of Mr Boyd

7. The applicant provided a statement dated 18 June 2021.

8. The applicant stated that on 18 January 2009 he was opening a large roller door using a chain when he felt a painful sensation in his stomach. He consulted his general practitioner (GP) some weeks after the incident in respect of continuing burning and stinging pain in his left groin. The applicant was referred to Dr Shakeshaft. The applicant underwent surgery by Dr Shakeshaft on 13 August 2010. The applicant continued to suffer from significant burning and stinging pain in his left groin.

9. The applicant stated that about 12 months after the surgery with continuing pain in the left side of his groin he was referred back to Dr Shakeshaft. In turn, the applicant was referred to Associate Professor Sundaraj, pain physician, and pain medication was prescribed. Without relief from the continuing pain, the applicant underwent further surgery on 5 October 2012 by

Dr Shakeshaft.

10. The applicant stated that on the morning following his surgery, that is on 6 October 2012, while he was in hospital he placed his left foot on the floor to get out of bed and his ankle rolled, he lost balance and fell to the ground landing on his hands and knees. He stated that since that time he has had multiple incidents of rolling his ankle while doing everyday activities. He stated that on average he rolls his ankle every day and it usually occurs first thing in the morning when he first wakes up. The applicant stated that he has had instances throughout the day when he rolls his ankle and when this happens he usually catches himself and limps and gathers himself, although there have been times when he has fallen to the ground when he has rolled his ankle. He was given a brace for his left ankle due to the multiple incidents of rolling his ankle.

11. The applicant stated that he started to develop pain in his lower back, particularly on the left side after he had been walking with a limp for some months. He stated that he thought that over the years he had subconsciously tried to reduce the pain in his left groin and he had tried placing more weight on his right side to reduce the severity of pain that he felt in his left side of the groin when he walked. He stated that due to the weakness and tightness that he suffered in his left leg he had been shifting more of his weight onto the right side and he attributed this to the pain that he developed in his lower back.

12. The applicant stated that he continued to suffer from symptoms or difficulties including chronic burning pain in the left side of his groin, weakness and constant radiating pain in his lower left leg, and his left ankle rolls frequently when he walks and he uses an ankle support for his left ankle to walk. The applicant also stated that he continues to walk with a limp and has done so for many years.

Dr Shakeshaft

13. Dr Shakeshaft, surgeon, provided a number of treating reports, including reports in 2010, 2011, 2012 and 2015 in respect of his treatment and surgical repair of the applicant’s hernia. There was no record of lower back pain.

14. In a referral letter to A/Prof Sundaraj dated 28 November 2011, Dr Shakeshaft noted that the applicant had not been free of pain ever since the hernia repair and he has a burning sensation in the left groin and his symptoms are aggravated with physical exertion particularly involving the left side of the body. Dr Shakeshaft thought that the problem was almost certainly a neuropathic one.

15. In a report dated 6 December 2012, Dr Shakeshaft noted ongoing pain.

16. In a letter dated 29 June 2015, Dr Shakeshaft noted that the applicant described pain in the inguinal region which increases quite dramatically with any activity and is associated with sweating and weakness. He noted that the applicant said that his leg is weak and he frequently rolls his ankle when he is walking.

Associate Professor Sundaraj

17. Associate Professor Sundaraj, specialist pain medicine physician, provided a number of treating reports. There was no reference to lower back pain until 2018.

18. In a treating report to Dr Shakeshaft dated 10 May 2012, A/Prof Sundaraj was of the opinion that the applicant had neuropathic pain, most probably affecting the genital branch of the nerve. It is of the opinion that it had been almost 15 months since surgery and it was more than likely there would not be a substantial permanent recovery.

19. In a report dated 11 December 2012, A/Prof Sundaraj noted surgery on 5 October 2012 and secondary infection. He noted that the applicant was experiencing pain in the left groin and pain into the inner aspect of the thigh and also on the posterior aspect of the lower limb.

20. In a report dated 8 February 2013, A/Prof Sundaraj noted that the applicant was troubled with unrelenting constant left groin pain and in addition radiating pain into the entire left-sided abdomen including the medial aspect of the thigh. A/Prof Sundaraj recommended a peripheral stimulator temporary lead placement to determine efficacy.

21. In a report to the workers compensation insurer dated 11 February 2013, A/Prof Sundaraj diagnosed primarily neuropathic pain in the left groin, with current symptoms including daily constant severe pain aggravated by movement, sitting, standing and stretching. He recommended referral for psychological treatment and also temporary placement of peripheral stimulator implant.

22. In a report dated 19 November 2013, A/Prof Sundaraj noted that the lower abdominal and groin pain had not altered to any appreciable extent.

23. In a report dated 30 June 2014, A/Prof Sundaraj noted continuing left groin, abdomen and inner thigh pain which was ongoing ilioinguinal neuralgia. He considered a dorsal root ganglion implant to be done at T12 or L1 but prior to this he was organising a diagnostic left L1 nerve root sleeve block under CT guidance.

24. In a report dated 18 August 2014 A/Prof Sundaraj noted continuing distress with pain in the left groin region and diagnosed neuropathic pain affecting the ilioinguinal and genito-femoral neuralgia.

25. In a report dated 27 February 2018, A/Prof Sundaraj noted that the applicant continued to be troubled with significant pain, particularly in the left groin and that currently he has trouble with pain along the posterior aspect of the left lower limb up to and around the ankle and pain more proximal to the lower back. A/Prof Sundaraj was of the opinion that:

“More than likely this man is troubled with some degree of left lower limb neuropathic pain arising from the lower lumbar spine. There could be a disc irritation or a prolapse. His gait and change of posture appeared normal, although exaggerated.”

Ms Lander

26. Ms Lander, health psychologist, provided a treatment report to A/Prof Sundaraj dated 26 February 2013.

27. Ms Lander noted that since the second surgery in October 2012, the applicant said that his pain remained severe and was still present. Ms Lander noted current symptoms included the applicant reporting that his left ankle rolls out and he can’t lift his left leg. She also noted that “bending is very painful”, without reference to back symptoms. Ms Lander was of the opinion that the applicant was suffering from a clinical depression and accompanying anxiety set off by the injury and its sequelae.

Dr Endrey-Walder

28. Dr Endrey-Walder, general and trauma surgeon, provided medicolegal reports dated 18 December 2019 and 7 April 2021 to the applicant’s solicitors.

29. In his report dated 18 December 2019, Dr Endrey-Walder noted that on 30 July 2014 the applicant underwent a CT guided epidural injection in his back on the request of

A/Prof Sundaraj and that the applicant recalled that after the injection he was told by

A/Prof Sundaraj that he had a bulging disc in his lower back.

30. Dr Endrey-Walder noted that in the report of 28 November 2014 Dr Sundaraj recommended a left ankle brace given the very frequent “going over” on the ankle. Dr Endrey-Walder also noted that on 29 June 2015 Dr Shakeshaft recorded that the applicant said his leg was weak and frequently rolled his ankle.

31. Dr Endrey-Walder also noted the diagnosis by A/Prof Sundaraj on 18 October 2014 of neuropathic pain and reactive clinical depression and anxiety related symptoms.

32. Dr Endrey-Walder also noted a history that the applicant said that since the July 2014 epidural injection he had constant lower back pain and his doctor said it was from the weakness in his left leg and the way that he walked. Dr Endrey-Walder also recorded that the applicant said that his ankle rolls almost every day.

33. On examination, Dr Endrey-Walder noted that the applicant walked into the examination room with a slight but definite limp on the left leg. He noted that the applicant indicated the lumbar region as the epicentre of his back pain over the last few years. Dr Endrey-Walder noted lumbar spine symptoms on twisting of the pelvis and hyperextension.

34. Dr Endrey-Walder also stated:

“Unfortunately, after the second operation, performed just over two years after the first one, this gentleman's problems had only multiplied, in the sense that the groin pain and dysaesthesia increased significantly, the associated abnormal ambulation impacting on his left lower limb, he began ‘rolling’ the left ankle, developed lower back pain.

The expectation is that on account of a likely limp due to the left groin pain he had probably ‘gone over’ the left ankle, suffered lateral ligament damage which then precipitated inversion incidents which had remained with him to date.

As a consequence of this scenario this man has today presented with a grossly restricted range of movement at the ankle which I consider assessable.

It is not difficult to see how his, by now quite chronic limp on the left leg, had led to some lower back pain, likely musculo-ligamentous in nature.”

35. In his report dated 7 April 2021, Dr Endrey-Walder noted that current symptoms in the lower back were reported as being that if the applicant stands too long it locks up and becomes very stiff and he gets cramps in his lower back.

36. On examination, Dr Endrey-Walder noted that the thoracolumbar spine displayed a mild but definite scoliotic curve convex to the left with para-lumbar muscle spasm and tenderness to palpation. Dr Endrey-Walder noted acute pain on hyperextension.

37. Dr Endrey-Walder disagreed with Dr Garvey that there was occasional mild discomfort at the site of the hernia.

38. Dr Endrey-Walder noted significant impairment in the left ankle, also acknowledged by

Dr Garvey, and that the chronic limp on the left leg had led to some lower back pain, likely musculo-ligamentous in nature. Dr Endrey-Walder considered that it was more than reasonable to relate the ongoing lower back pain to the abnormal ambulation that the applicant had now had over many years. Dr Endrey-Walder took issue with the statement by Dr Garvey that there was no radiology of the lumbar spine in respect of his inability to identify any objective evidence of a back injury. Dr Endrey-Walder agreed that radiology would be helpful but it is only an adjunct to the clinical diagnosis.

39. Dr Endrey-Walder was of the opinion that the applicant’s lower back injury “is partly consequential upon the left ankle injury, and partly on account of his abnormal ambulation before and after the ankle injury on account of pain in his left groin in a chronic manner”.

Dr I Smith

40. Dr Smith, injury management consultant, provided two reports to the GIO dated 27 February 2014 and 16 October 2014.

41. In his report dated 27 February 2014, Dr Smith recorded the following:

“He has pain all day every day situated above the scar. He experiences a burning sensation over the left testicle, left groin and on the Inner aspect of the left thigh. He struggles to flex his thigh. He has to sit with his leg extended and sitting slightly reclined. Intermittently he gets a very acute pain.

He experiences a pulling and dragging sensation. At times the pain is excruciating. The pain will make him sweat.

He walks at reduced pace with a slight limp. He can walk for about half an hour. He does not run. He takes stairs slowly. following his surgery his ankle gave way. He had nine months of physiotherapy and now wears a brace. He reports that this has been accepted as part of his claim.

He walks at reduced pace with a limp.”

42. On examination, Dr Smith noted that the applicant had “a slightly asymmetric gait”. Dr Smith was of the view that there were no inconsistencies on examination.

43. In his report dated 16 October 2014, Dr Smith noted that the applicant believed that his symptoms had deteriorated and become more widespread. Dr Smith recorded the following in respect of the applicant’s condition at that time:

“He has widespread left abdominal pain, left groin pain associated with swelling. He has constant pain in the left lumbar region going into the pelvic region into the left buttock with spasms of pain down the left leg.

His left ankle is extremely weak and he rolls over on it. This necessitates him wearing an ankle brace.

He can only sit with his back in a slightly extended position with his left leg outstretched, He can sit for about 20 minutes. Sitting ls very uncomfortable. He then stands up. He can stand for about an hour. He can walk at slower than normal pace for about 20 minutes.”

44. On examination, Dr Smith noted that movements in the lumbar spine were restricted to about half normal. Dr Smith noted left iliolumbar pain and weakness of eversion of the left ankle.

45. Dr Smith was of the view that the applicant had ongoing dysfunction as a result of left

ilio-inguinal nerve damage due to the hernia surgery and that he appeared to have developed “some left lumbar spine symptoms with some suggestion of non-verifiable radiculopathy”.

Approved Medical Specialists Associate Professor Robertson and Dr Assem

46. Associate Professor Robertson, psychiatrist, provided a Medical Assessment Certificate (MAC) dated 4 November 2015 in proceedings in the Workers Compensation Commission. A/Prof Robertson provided an assessment of a general medical dispute in respect of proposed treatment for psychological and psychiatric treatment, occupational therapy and general practitioner in respect of injury on 18 January 2009 in the course of employment with the respondent in these proceedings. I will refer to the MAC of A/Prof Robertson below.

47. Dr Assem provided a MAC dated 4 November 2015 in the same proceedings. Dr Assem provided an assessment of a general medical dispute in respect of proposed treatment for surgery, being spinal implant and dorsal root ganglion and related expenses. I will refer to the MAC of Dr Assem below.

Dr Garvey

48. Dr Garvey, surgeon, provided a medicolegal report dated 29 June 2020 to the respondent’s solicitors.

49. Dr Garvey noted the onset of lower back pain three to four months “after the second operation” when he was favouring the right “side-by-side walking”.

50. On examination, Dr Garvey noted abnormal gait and rotation of the thoracolumbar spine to the left was half that of normal. He noted straight leg raising was 95° on the right and 50° on the left and restricted power and movement of the left lower extremity. Dr Garvey noted inconsistencies on presentation in relation to the lumbar spine and no diagnostic imaging of the lumbar spine was available.

51. Dr Garvey stated that he found no objective clinical evidence to support any lower back injury and there was no diagnostic imaging to confirm any specific injury. He was of the opinion that the applicant suffers from dysmetria on left lateral rotation of the thoracolumbar spine.

Dr Garvey stated that he was unable to explain the origin of the low back injury. He was unable to explain the physical sign of dysmetria on rotation of the thoracolumbar spine in the absence of diagnostic imaging reports. Dr Garvey stated that dysmetria of the lumbosacral spine is not accounted for by any information on the file.

FINDINGS AND REASONS

52. The respondent did not dispute that the applicant had sustained a consequential left ankle condition. The respondent argued that there was a break in the chain of causation in respect of the lumbar spine condition.

53. The respondent submitted that the applicant is not assisted by the absence of the clinical records of the treating GP and the Commission does not have evidence of complaints of pain over time. The applicant submitted that no inference or conclusion can be made in this regard as the applicant had in fact on a number of occasions requested the clinical records of the practice of the treating GP, the Park Lawn Medical Centre, copies of such requests being attached to the ARD. There was no response to these requests. The applicant also said that it sought and issued a direction for production in these proceedings against the Park Lawn Medical Centre for the clinical records but there was no response to that direction for production. I place no weight on the absence of these records and make no inference in this regard. In my view, as discussed below, a gradual onset of lumbar spine symptoms in the context of significant treatment for the more significant conditions of hernia injury and neuropathic pain may take a considerable period of time before such symptoms are noted, if at all, in the treating clinical records, the purpose of which is not a forensic consideration of the relationship of such symptoms to a work injury for the conduct of legal proceedings.

54. It was submitted that the applicant in his statement did not say when his lumbar symptoms commenced, although Dr Garvey recorded that the applicant said that the low back pain occurred three to four months after the second operation in October 2012.

55. The respondent submitted that the applicant’s statement that he had lumbar symptoms at some time following the October 2012 surgery should not be accepted due to an absence of contemporaneous medical records, both in respect of the lumbar spine and also the left ankle. However, the reports of Dr Smith show that the applicant was complaining of lower back pain in October 2014, as well as of limping in February 2014, also noted on examination, although Dr Smith did not provide an opinion as to causation of the lumbar symptoms or any relationship between the limp and the lumbar symptoms. Dr Smith did not point to any factors to account for the limp other than the matters noted above in the context of his view that there were no inconsistencies on examination. I accept the applicant’s submission that the lumbar pain was modest in the context of the ongoing treatment and symptoms in respect of the applicant’s hernia condition and left ankle symptoms. In my view, the applicant’s statement in this regard was not inconsistent with the history recorded by Dr Smith. I do not prefer the description of the applicant’s gait by A/Prof Sundaraj in February 2018 that the applicant’s gait “appeared normal although exaggerated”, in the absence of explanation and distinction by A/Prof Sundaraj between normal and exaggerated.

56. Moreover, the reports of Dr Shakeshaft and A/Prof Sundaraj indicate a focus of treatment on the hernia condition and the neuropathic pain condition respectively. The applicant underwent substantial treatment in this regard over a period of more than three years.

I accept the applicant’s submissions that this was the focus of the treatment by each doctor, rather than treatment globally or in respect of symptoms throughout the applicant’s body. It is in this context that a gradual onset over a period of time of lumbar symptoms, in the absence of a particular injurious event, was not recorded by either doctor on the material before me, at least until the report of A/Prof Sundaraj of 27 February 2018. For these reasons I exercise caution in attributing unreliable inconsistency of the applicant’s statement to a lack of reference to lumbar spine pain in the medical treatment documents before me, particularly in the context of a gradual onset of lumbar spine symptoms^[1]. As noted above, in my view there is a record of lumbar spine symptoms from early 2014 in the report of Dr Smith, which is not inconsistent with the applicant’s evidence, and which is also consistent with gradual onset while undergoing substantial treatment for the hernia and, later, the left ankle.

57. It was submitted by the respondent that it was the opinion of A/Prof Sundaraj that the applicant’s pain originated from the hernia condition and related surgery. I do not accept this submission. As noted, A/Prof Sundaraj did not record a history of back pain until 2018. In his report of 27 February 2018, A/Prof Sundaraj noted left limb neuropathic pain arising from the lower lumbar spine and that there could be a disc irritation or prolapse. This in my view was not an opinion that the pain originated in the hernia and related surgeries.

58. Approved Medical Specialists A/Prof Robertson and Dr Assem were asked to consider psychological treatment and surgical pain management issues. In my view there is limited weight that can be given to their medical assessments in these proceedings. A/Prof Robertson noted a report of Dr Smith but made no comment in respect of the applicant’s back symptoms as recorded by Dr Smith. Dr Assem recorded present symptoms as including difficulty bending forwards, without saying why, although this was not an issue for his assessment. He also recorded pain at the left thigh that sometimes spreads to the lower back and the left ankle feels unstable requiring an ankle support. Again, the lumbar spine was not an issue for the assessment of Dr Assem and his observations in my view were not required to provide an assessment of the nature and origins of any lumbar symptoms and hence were ambiguous for the forensic purpose of these proceedings. I do not accept the respondent’s submissions that a diagnosis of a somatic symptom disorder and the history recorded by Dr Assem were inconsistent and contrary to the applicant’s case in the current proceedings.

59. The respondent submitted that Dr Endrey-Walder did not explain why abnormal ambulation caused the development of lower back pain, nor did he diagnose a lower back condition. I do not accept those submissions. Dr Endrey-Walder in my view did explain the nature and cause of the applicant’s lumbar spine condition. He was of the view that that the chronic limp on the left leg had led to some lower back pain, likely to be musculoligamentous in nature. It was also his view that the likely limp due to left groin pain the applicant had “gone over” the left ankle and suffered damage to the left ankle which then precipitated inversion incidents which had continued to date, and the symptoms had multiplied after the second surgery when the groin pain and dysaesthesia had increased significantly with associated abnormal ambulation impacting the left lower limb and rolling of the left ankle and the applicant developed the lower back pain. I accept the explanation and opinion of Dr Endrey-Walder that the applicant’s lower back condition was partly consequential upon the left ankle injury and partly on account of his chronic abnormal ambulation before and after the ankle injury on account of the pain in the left groin.

60. Dr Garvey provided his opinion as to whether there was injury to the lumbar spine. However, the issue is whether the symptoms and restrictions in the applicant’s lumbar spine have resulted from his hernia injury, in this case from his ambulation due to pain in the groin and the accepted left ankle condition. Mr Boyd is not required to establish that he suffered injury in this regard. On my reading of his report as a whole, Dr Garvey considered the issue as to whether the applicant sustained injury to his lumbar spine as a result of his hernia injury, not the test as identified above. Although at one point in his report Dr Garvey observed abnormal gait and lumbar spine symptoms and restrictions with a finding of dysmetria but considered permanent impairment was 0% “because there is no evidence in the file that this condition is caused by the stipulated incident”, he did not provide an explanation as to whether or not he accepted the applicant’s account of lumbar spine symptoms following his limping, nor whether such limping resulted in lumbar spine symptoms and restrictions. He rejected any relationship of such symptoms to the hernia on the basis that there was no evidence in the file. It was necessary to consider whether the applicant’s lumbar spine condition, that is having regard to the symptoms and restrictions in his lumbar spine, was a result of his hernia injury. It was not necessary to consider whether or not the applicant had sustained a lumbar spine injury in regard to the file material. I do not accept the opinion of Dr Garvey in this regard.

61. As noted by Dr Endrey-Walder, I accept that the applicant’s left groin symptoms have for more than 10 years been neither occasional nor mild, as suggested by Dr Garvey. I also accept the view of Dr Endrey-Walder that while radiology of the lumbar spine would be helpful, it is only an adjunct to the clinical diagnosis. I prefer the opinion of Dr Endrey-Walder to that of Dr Garvey.

62. As was observed in Moon v Conmah Pty Limited^[2] (Moon), it is not necessary for the applicant to establish injury to the lumbar spine. All that he must show is that his lumbar spine symptoms and restrictions have resulted from his hernia injury. This requires a common sense evaluation of the causal chain^[3]. I have preferred the opinion of

Dr Endrey-Walder and I have accepted the applicant’s evidence of a gradual onset of lumbar spine symptoms and restrictions following the October 2012 surgery and the abnormal ambulation as a result of both groin pain and the left ankle condition.

63. As was also observed in Moon^[4], the connection between the lumbar spine symptoms and the hernia injury, that is the abnormal ambulation as a result of the left groin pain and the left ankle condition, is so obvious that no further explanation was required by Dr Endrey-Walder^[5]. Dr Endrey-Walder provided a clinical diagnosis of musculoligamentous back pain related to the by now chronic limp on the left leg.

64. I find that the applicant’s lumbar spine symptoms have resulted from his hernia injury and also from the left ankle condition that is consequential to the hernia injury. I find that the applicant has suffered a lumbar spine condition consequential to the hernia injury on 18 January 2009.

^[1] Mason v Demasi [2009] NSWCA 227 at [2]

^[2] [2009] NSWWCCPD 134 at [45]

^[3] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452

^[4] At [49]

^[5] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]- [89]