1. The matter was before the Commission for an arbitration hearing on 30 January 2025.

Mr Carney of counsel, instructed by Ms Jackson solicitor, appeared for the applicant, who was also present. Ms Singh solicitor instructed Mr Gaitanis of counsel who appeared for the respondent and an officer of its insurer was present. 2. 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 endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.

1. The parties request referral of the matter to a Medical Assessor for assessment of permanent impairment after the Commission determines whether the applicant suffered consequential injury to her right knee and whether that condition should be included for assessment.
2. The Commission has also been requested to determine whether the applicant suffered consequential injury to her right hip and right foot for the purpose of receiving medical treatment.

1. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;

(b) Reply to the ARD with attachments from the respondent (Reply);

(c) Application to Lodge Additional Documents (ALAD-A) with attachments filed by the applicant on 22 January 2025, and

(d) Application to Lodge Additional Documents (ALAD-R) with attachments filed by the respondent on 22 January 2025.

1. The applicant made objection pursuant to cl 44 of the Workers Compensation Regulation 2016 that the respondent had included separate forensic medical reports from both Associate Professor Paul Miniter, orthopaedic surgeon, and Dr Ron Haig, orthopaedic surgeon. The medico-legal reports provided by those specialists related to the current dispute. Clause 44 provides that only one may be admitted. The respondent chose to rely upon those provided by Dr Haig. The report prepared by Associate Professor Miniter was not admitted into evidence and has not been considered.
2. The forensic medical reports of Dr Frank Machart, orthopaedic surgeon, that were included with the material relied upon by the respondent were admitted into evidence in the proceedings as they were historical and related to an earlier claim by the applicant.
3. There was otherwise no objection by either party to the admission into evidence of any documents contained within the ARD, Reply and either ALAD.

1. The applicant relies on her own evidence about the background and effect of the conditions that are the subject of dispute as well as that found in various clinical records and medical reports.

1. As treatment for her left knee injury, the applicant received surgery. In her statement dated 7 March 2023[1] the applicant recounted that following left knee surgery, she had "significant weakness in [her] left knee and legs and [her] left leg would regularly give way ... without warning" and that caused her "to constantly fall on [her] right side". The applicant referred to "pain and restriction of movement of right hip and right knee" as an "on-going complaint" in that first statement.[2]
2. The applicant formed the belief that the pain in her right hip, right knee and right ankle was "a result of the left knee injury which was making it difficult ... to walk and [she] was walking with a limp" according to her 5 August 2024 statement.[3] She went on to conclude that "as a result of the falls and walking with a limp, [she] developed pain in [her] right hip, right knee and right ankle".
3. The applicant also recounted in that statement she "initially experienced intermittent pain in [her] right hip, right knee and right ankle however as time has progressed and [as she] continued to walk with a limp the pain in these areas has increased". She also outlined in that statement the nature of the daily pain experienced that is related to the right side conditions and its management, including with the use of a walking stick.

1. There is early evidence of the applicant reporting right side hip pain. Although prepared in relation to treatment for the left knee injury, a report of treating physiotherapist Susan Stokes on 6 August 2020[4] noted that "examination revealed an antalgic gait with reduced stance phase on the left leg, there was also reduced knee movement through the gait cycle".

Ms Stokes concurred (apparently with the treating GP, Dr Michael Seymour), that the incident on 2 July 2020 "unmasked [the applicant's] previously asymptomatic patellofemoral osteoarthritis". 2. The focus of treatment at that time was to get the applicant "walking normally". To that end she was "treated with joint mobilisations, soft tissue therapy and provided with a basic home exercise program" and "was also provided with crutches". Ms Stokes observed that the "use of the crutches resulted in improved gait pattern and reduced right hip pain". It is evident from the report that the applicant experienced right-side hip pain within a few weeks after the workplace injury. While not made explicit, an inference that could be drawn from the report is that the left knee injury resulted in an altered gait and right hip pain for the applicant.

1. In his clinical notes of 16 July 2021,[5] the applicant's treating GP, Dr Seymour, recorded that "now her right hip is painful and radiating down to her right knee and this caused a fall up some stairs recently". On 20 July 2022,[6] arising from a workers compensation case conference, Dr Seymour noted right hip pain "around greater trochanter / buttock" that had "started about 3-4 weeks ago" where there had been "no acute injury". He recorded right heel pain, that "started a few weeks ago" that was "painful when she stands up and goes to walk on it" that was "likely plantar fasciitis". Right knee pain was also recorded to have "started 5-6 weeks ago" that was "lateral and radiating anteriorly below her patella" and "painful to walk on" but where there had been "no acute injury". Recommendations were made for imaging investigations at that time.
2. In a "Workcover Report" dated 17 August 2022,[7] Dr Seymour responded to queries about the applicant's right-side hip, knee and foot pain. He confirmed that the first consultation in relation to those issues was on 20 July 2022 and in response to the question whether they were "entirely related to the incident on the 2 July 2020?", he responded: "Yes". Dr Seymour stated the applicant had no pre-existing conditions or previous injuries to those body parts. Although he considered they were related to the 2 July 2020 incident, no explanation as to how was included in that document. He did provide provisional diagnoses that were subject to the outcome of scans that had been arranged at that time.
3. In a letter to the applicant's solicitor dated 19 November 2023,[8] referring to diagnosis,

Dr Seymour identified right heel plantar fasciitis and right hip trochanteric bursitis with a gluteus minimus tendon tear for the applicant. No reference was made to her right knee in that letter. She was reported to have "continuing issues with her right hip and right heel". 4. At the time of referring the applicant to Dr James Churchill, orthopaedic surgeon, on

15 May 2024,[9] for an "opinion and management of chronic right hip pain", Dr Seymour identified chronic hip pain that "developed about 2 years ago". He considered that the applicant "had been compensating for her left knee injury and started developing right hip pain in that context". In relation to investigations, he stated that:

"Recent MRI revealed a complete tear of the gluteus minimus tendon with sub gluteus minimus bursitis. Low-grade partial undersurface tear of the gluteus medius with sub gluteus medius bursitis. Trochanterlc bursitis. Low to Intermediate grade partial tear of the common hamstring tendon with peritendinitis and background tendinosis. Anterosuperior labral tear with background mild CAM lesion."

1. The applicant subsequently decided to attend a specialist consulation with Dr Nicholas Tsai (rather than Dr Churchill), orthopaedic surgeon, who referred her for a guided cortisone injection and physiotherapy. He reported to Dr Seymour on 25 July 2024 that:[10]

"Currently, she complains of increasing pain around her right greater trochanter. She walks with a limp and the pain also seems to radiate down the front of her thigh as well. She is not able to lie on her side at all. She takes Panadol and Nurofen for pain relief but when the pain gets bad she takes Panadeine Forte.

Clinically she has increased BMI. She walks with an antalgic gait. Trendelenburg test is positive on the right. She is very tender over the greater trochanter and also over the right ischial tuberosity. Resisted abduction of the right hip was painful. Her hip joint is otherwise not irritable with range of motion.

She had an MRI scan in May this year which reports gluteus minimus tear and also partial gluteus medius tear. There is also partial thickness tear of the hamstring origins. In addition there is a small amerolaieral Iabral tear of the right hip."

Dr James Bodel, orthopaedic surgeon and independent medical examiner (applicant)

1. An independent medical examination of the applicant was arranged with Dr James Bodel, orthopaedic surgeon. Although the reporting of Dr Bodel was generally in relation to other issues, limited reference was made by him to the applicant's right side conditions in a report of 5 June 2024.[11] Dr Bodel stated that the applicant "has developed the right hip and right knee pain over time as a consequential injury because of the repeated episodes of giving way in the left knee". That comment was contained in the report under the heading "Subsequent accidents or injuries" and no further detail or explanation was provided for that conclusion.

Dr Ron Haig, orthopaedic surgeon and independent medical examiner (respondent)

1. The respondent qualified Dr Ron Haig, orthopaedic surgeon, to examine and report on the applicant, primarily in relation to other matters but he did provide some relevant comment on those now before the Commission. In his 23 April 2024 report,[12] following examination of the applicant on 18 April 2024, the applicant's right hip condition was assessed as being "trochanteric bursitis ... constitutional in origin". He did not at the time however have the benefit of the investigations report from the MRI scan conducted on 22 April 2024, the essential details of which being that already cited by Dr Seymour and Dr Tsai above.
2. It seems Dr Haig later reviewed the MRI investigation and provided comment in his supplementary report of 22 January 2025.[13] The applicant's wrist injury is discussed in that report, but there is no specific consdieration of the right hip condition. Dr Haig states "otherwise I have no reason to change the opinions expressed in my earlier reports", from which it can be assumed the right hip condition experienced by the applicant was still considered to be "constitutional in origin" (per the 23 April 2024 report).

1. The applicant contends her lower right side conditions, that is her hip, knee and foot, have arisen as a consequence of the workplace injuries she sustained on 2 July 2020. She bears the onus to prove those conditions are consequential to an accepted injury. The relevant test for causation is that found in Kooragang, which requires the Commission to apply a commonsense approach to determine causation.
2. It is unnecessary for an applicant to satisfy a requirement of having suffered injury for the purposes of s 4 of the Act for a consequential condition to be found: Kumar v Royal Comfort Bedding Pty Ltd.[14] This means the applicant is not required to satisfy the definition of "injury" as set out in s 4 of the Act, only that the symptoms and restrictions in her right-side hip, knee and foot have resulted from her other, work-related injury: Moon v Conmah Pty Limited.[15]
3. It is also unnecessary for specific pathology to be identified when finding a consequential condition exists,[16] however there must be an unbroken chain of causation from the accepted injury to the development of the consequential condition. The applicant is not required to prove injury to her right-side hip, knee or foot in this case, only demonstrate that those conditions arise from her accepted injuries.
4. According to Roche DP in Drca v KAB Seating Systems Pty Ltd,[17] for an applicant to succeed in a claim for compensation, the Commission need be satisfied that on the balance of probabilities of the facts that establish the claim. In relation to the applicant's claim, this means she needs to establish that it was more probable than not that the right-side hip, knee and foot conditions resulted from the accepted injuries, the left knee and lumbar spine. I am required to have a 'feeling of actual persuasion' the applicant has met this onus: Nguyen v Cosmopolitan Homes.[18]
5. The applicant seeks to establish a causal connection based upon her left knee "giving way without warning" then falling and that those events resulted in the right-side hip, knee and foot pain. It was also contended the applicant's altered gait was caused by the accepted injuries and so affect her right side from "walking with a limp".
6. None of the medical reports relate specifically to the issues in dispute in these proceedings. I am asked to draw conclusions from selections of the various medical notes and reports already cited to find the applicant's right-side conditions arose from the workplace injuries.
7. There is substantial evidence of a right hip condition, with a detailed diagnosis provided by Dr Seymour that was confirmed by Dr Tsai. The diagnoses for the applicant's right knee and right foot conditions were less specific, with the foot being described initially as "likely plantar faciitis" (but later apparently confirmed as such) and the right knee simply as "pain". I am reasonably satisfied on the medical evidence that the applicant does experience right-side conditions in her hip, knee and foot that cause pain.
8. The right hip condition is the most thoroughly documented and appears to consist of multiple tendon tears with associated bursitis. The applicant considers the condition to be a result of mulitple falls and her altered gait from the workplace injuries. This is supported by

Dr Seymour who opined all three right-side problems were related to the incident on

2 July 2020, apparently due to the applicant "compensating for her left knee injury". He did not however provide any further explanation for his opinion or reasoning for the mechanism by which that is said to be the result. 9. Ms Stokes recorded an altered gait on 6 August 2020, which was five weeks after the

2 July 2020 incident, that was reportedly causing right hip pain for which crutches provided some relief for the applicant. Dr Bodel expressed a view that the applicant "developed the right hip and right knee pain over time as a consequential injury because of the repeated episodes of giving way in the left knee" but without further elaboration. However, the left knee "giving way" occurs later, and there is no evidence of that before Ms Stokes treated the applicant on or about 6 August 2020. It is therefore reasonable to infer that the applicant's right hip pain when she consulted with Ms Stokes was from a cause other than falling, possibly altered gait. 10. Dr Seymour and Dr Bodel state their conclusions without providing any specific explanation of a mechanism of causation for the conditions. Dr Tsai does not offer any view as to causation of the hip condition. Dr Haig considered it to be "constitutional in origin". The medical evidence is non-specific and generally deficient with respect to the critical issue of likely causation. 11. In relation to the right hip condition, the medical evidence to be inconclusive on the issue of causation. To accept the views of Dr Seymour and Dr Bodel would be to do so without proper foundation. An explanation of the reasoning for their conclusions is necessary yet absent. There has been nothing proferred as to how an altered gait or falling might cause the right side conditions. Merely stating it to be so does not address the evidentiary and causal deficiency. 12. While it is accepted the applicant experienced issues with her left knee and gait after receiving the injuries at work, I cannot inevitably accept that a change in the applicant's gait and her left knee "giving way" with associated falls is the cause of the right-side hip condition (or knee or foot) without some cogent explanation as to how those might have arisen. The medcial evidence available to the Commission does not provide any. 13. While there is some evidence related to the applicant's right hip that has allowed it to be considered to a greater extent, there is a dearth of medical evidence related to her right knee and foot conditions. It would seem though from the report of Ms Stokes that the applicant had an underlying condition in her right knee, namely osteoarthritis. How that may have contributed is unknown given the material in evidence. There is essentially nothing of substance that refers to the right foot condition. 14. The balance of the evidence is not sufficient to support the applicant's claims. I do not have a "feeling of actual persuasion" that she has met the onus of establishing her right-side hip, knee and foot conditions arose as a consequence of the workplace injury on 2 July 2020. While applying a "commonsense" approach might suggest the applicant's right hip condition could potentially be consequential, to do so still requires the presence of supporting medical evidence, which I have found is lacking in relation to the required chain of causation. The totality of the evidence is not sufficient to support the applicant's claims in the circumstances.

1. I am not reasonably satisfied on the available evidence that the applicant's right hip, right knee or right foot conditions are consequential to the workplace injuries she received on

2 July 2020. 2. The applicant's claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in relation to the 2 July 2020 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, for that Medical Assessor to assess the level of the applicant's whole person impairment in relation to her left knee (including scarring), lumbar spine and right wrist.

[14] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8.

[15] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.

[17] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.

[18] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.