Acin v Lacin Trades Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Acin v Lacin Trades Pty Ltd [2022] NSWPIC 743
APPLICANT:	Abraham Acin
RESPONDENT:	Lacin Trades Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	23 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits pursuant to sections 33, 37 and 38 of the Workers Compensation Act 1987; in final written submissions in reply, applicant sought leave to amend the Application to Resolve a Dispute to include an additional body part; Held – leave granted to amend the Application to Resolve a Dispute (ARD) so that the “Injury Details/Injury Description” includes injury to the applicant’s “neck” in addition to the applicant’s “right shoulder, right arm, right wrist, left wrist” and the ARD is amended accordingly; matter to be listed for a teleconference to hear submissions in relation to what, if any, measures are appropriate to ensure procedural fairness to the parties arising from the amendment of the ARD.
determinations made:	1. The applicant sustained personal injury to his neck, right shoulder, right wrist/hand and left wrist in the course of employment on 15 October 2020. 2. The applicant’s employment was the substantial contributing factor to his injury. 3. The applicant has no capacity to work from 5 August 2022.
ORDERS MADE:	1. The respondent to pay the applicant weekly compensation in the amount of $1,480 per week from 5 August 2022 to date, and continuing pursuant to s 37(1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Abraham Acin (the applicant), is a 38 year old man who was employed by his own company, Lacin Trades Pty Ltd (the respondent), as a gate and roller door installer and maintainer.
The applicant alleges that he sustained injury to his left wrist, right shoulder, right arm, right wrist and neck during a work incident on 15 October 2020 when a garage door fell on him (the incident).
On or about 24 February 2021 the applicant initiated a claim for workers compensation by a Certificate of Capacity issued by his general practitioner, Dr Kabir Ahmed. The Certificate of Capacity stated a diagnosis of work related injury of “Shoulder sprain Wrists sprain R = L” on 15 October 2020. In response to the question “How is the injury related to work...?”,
Dr Ahmed stated on the Certificate of Capacity: “accident at work in October 2020 A big gate fell on to his shoulder and arm R, bruised his neck, shoulder and arm/hand (R) and L wrist – happened at work intermittent pain”.
By letter dated 8 April 2021, the respondent’s workers compensation insurer, Insurance & Care NSW (managed by EML) (the insurer) stated that it accepted liability for injury on
15 October 2020, namely “Unspecified sprain of left wrist; Unspecified sprain of right shoulder joint; Contusion of right forearm; Unspecified sprain of right wrist”.
The insurer made various payments of weekly benefits and medical expenses compensation to and on behalf of the applicant at least between 7 April 2021 and 15 June 2022.
On 15 June 2022, the insurer issued the applicant with a notice (s 78 notice) pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The s 78 notice referred to injury on 15 October 2020 being unspecified sprain of left wrist, unspecified sprain of right shoulder joint, contusion of right forearm and unspecified sprain of right wrist. It did not dispute that the applicant had sustained injury on 15 October 2020. However, the s 78 notice disputed that the applicant had total or partial incapacity for work resulting from the applicant’s injury on 15 October 2020. On that basis, it disputed ongoing liability for weekly benefits as a result of that condition and stated that the applicant’s weekly benefits were to cease from 5 August 2022. The applicant sought a review of that decision.
On 1 August 2022, the insurer issued the applicant with a notice pursuant to s 287A of the 1998 Act, which stated that the insurer maintained the dispute in accordance with the s 78 notice.
On 8 August 2022, the applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (the Commission). The applicant claimed weekly benefits from
5 August 2022 ongoing, pursuant to ss 33, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the work injury on 15 October 2020 to his right shoulder, right arm, right wrist and left wrist.
On 2 September 2022, the respondent lodged a Reply to the ARD by way of an Application to Admit Late Documents (AALD).

PROCEDURE BEFORE THE COMMISSION

On 5 September 2022, Member Burge conducted an initial conference.
The matter was listed for conciliation/arbitration hearing by MS Teams before Member Garner on 19 September 2022. Mr Curran of counsel, instructed by Mr Hansen of Carters Law Firm Lawyers, appeared for the applicant, who was present. Mr Robison of counsel, instructed by Mr Balan of HWL Ebsworth Lawyers, appeared for the respondent.
Ms Patterson of EML was also present on behalf of the insurer.
At the commencement of the conciliation/arbitration hearing, the respondent’s counsel,
Mr Robison, made an application for the hearing to be adjourned on the basis that a third medical report from the insurer’s independent medical expert, Dr Diebold, was required and had been requested but was not available. The application for adjournment was opposed.
For reasons that are recorded and available to the parties, the Commission granted the adjournment of the hearing. The Commission issued Directions dated 19 September 2022 in relation to the further conduct of the matter, which included the filing and service of further evidence and written submissions. The Directions noted that, subject to other direction, the substantive proceedings would be determined on the papers after the required material was filed and served as directed.
Pursuant to the Directions dated 19 September 2022, the parties filed further evidence and written submissions as follows:
(a)    respondent’s AALD, dated 28 September 2022;
(b)    respondent’s AALD, dated 6 October 2022;
(c)    wage schedules;
(d)    applicant’s written submissions, dated 20 October 2022;
(e)    respondent’s written submissions, dated 28 October 2022, and
(f)    applicant’s written submissions in reply, dated 4 November 2022.
In the applicant’s written submissions in reply, dated 4 November 2022, Mr Curran sought leave to amend the “Injury Details/Injury Description” in the ARD to also include injury to the applicant’s “neck” in addition to the applicant’s “Right shoulder, right arm, right wrist, left wrist”.
The respondent opposed the granting of leave to amend the ARD.
By Directions dated 11 November 2022, the Commission directed the parties to file written submissions in relation to the applicant’s application for leave to amend the ARD. The parties filed and served written submissions in accordance with the Directions.
By Certificate of Determination (and attached reasons) issued on 14 December 2022 (the interlocutory decision), the Commission determined that leave is granted to amend the ARD. Accordingly, the ARD is amended to the effect that the injury details/ injury description included injury to the applicant’s right shoulder, right arm, right wrist, left wrist and neck. Further, the Commission directed that the matter be listed for a teleconference to hear submissions in relation to what, if any, measures are appropriate to ensure procedural fairness to the parties arising from the amendment of the ARD.
Accordingly, the matter was listed for a conference before Member Garner on
16 December 2022. Mr Hansen appeared for the applicant, who was present. Mr Robison appeared for the respondent, instructed by Mr Balan. Ms Patterson of EML was in attendance on behalf of the insurer. The submissions of the parties were recorded and are available to the parties:
(a) On behalf of the respondent, Mr Robison submitted that:
(i)the respondent does not cavil with the interlocutory decision issued on 14 December 2022;
(ii)the respondent continues to maintain that the respondent is prejudiced by the interlocutory decision of 14 December 2022 (although he did not identify any specific point of prejudice), and
(iii)the respondent does not seek to make any further submissions.
(b) On behalf of the applicant, Mr Hansen declined to make any submissions.
Having determined the interlocutory issue of application for leave to amend the ARD, I am now required to determine the substantive issues.
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

The following issues are in dispute:
(a) the nature of the work injury sustained by the applicant on 15 October 2020, in particular injury to the applicant’s right shoulder, right arm, right wrist, left wrist and neck, and
(b) whether the applicant continued to suffer the incapacitating effects of the work injury on and from 5 August 2022.

EVIDENCE

Documentary evidence

No objection was taken to the admission of evidence filed by way of AALD.
On that basis, the following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD (as amended by Certificate of Determination issued on 14 December 2022) and attached documents;
(b)    Reply to ARD and attached documents, filed by way of AALD dated
2 September 2022;
(c)    respondent’s AALD dated 28 September 2022 and attachments;
(d)    respondent’s AALD dated 6 October 2022 and attachment, and
(e)    wage schedules.

Oral evidence

There was no application by either party to cross-examine or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant

The applicant gave evidence by way of a statement dated 4 August 2022.
The applicant is now 38 years of age.
After completing Year 9 schooling and then a three-year panel-beating apprenticeship, the applicant had a fairly consistent work history in various technical, home maintenance, repairs, installation and sales roles, either as an employee or as a self-employed person through his various companies.
On 30 October 2020, the applicant injured his right shoulder when he dived into a pool which was shallower than he had expected and his right hand hit the bottom, jolting his right shoulder. The applicant subsequently attended Westmead Hospital, consulted general practitioner, Dr Yildirim, and a specialist, Dr Sher. The applicant underwent an arthroscopic stabilisation procedure on his right shoulder in September 2009. By 15 October 2020, the applicant’s right shoulder had considerably improved and he was able to work without restrictions.
As at 15 October 2020, the applicant was employed by the respondent, his own company, as a gate and roller door installer and maintainer.
On 15 October 2020, the applicant was working at a house repairing an automatic garage door. The door fell down, hitting the applicant on his right shoulder and hand. He sustained injuries to his right shoulder, right hand and right wrist. He also injured his left wrist but that injury has since resolved.
The applicant subsequently consulted his general practitioner, Dr Kabir Ahmed, who referred him to a specialist, Dr Matthew Yalizis. The applicant was also treated by a specialist,
Dr David Yee and a physiotherapist, Craig Jacob.
The applicant underwent an MRI right wrist scan on 24 March 2021, an MRI right shoulder scan on 4 June 2021, an MRI right shoulder scan on 17 June 2021 and an MRI cervical spine scan on 19 June 2021.
Following the accident on 15 October 2020, the applicant tried to continue working because he had his own business which he did not want to close and he did not want to disappoint his customers. He took medication to help control the pain and keep working. However, due to ongoing pain and restrictions, he was unable to lift the heavy gates and roller doors and was unable to use power tools. He started referring his customers to other tradespeople. By
15 January 2021, the applicant had referred all of his customers to other people. The applicant ceased working from 15 January 2021 because he was unable to perform the heavy lifting and use of power tools that the work requires.
The applicant continues to experience ongoing pain, discomfort, disabilities and limitations including to his right shoulder, right arm and right wrist arising out of the accident on
15 October 2020.
The applicant kept the respondent company registered in the hope that his symptoms will eventually improve. He is considering continuing physiotherapy and ultimately, if that is unsuccessful, surgery.
The insurer paid weekly compensation, and some medical expenses, up to 15 June 2022.
As at 15 October 2022, the applicant was earning an average of approximately $1,705 per week gross.

Treating medical evidence
Dr Ahmed, general practitioner

Dr Ahmed’s evidence included four Certificates of Capacity which he issued from 24 February 2021 which each stated a diagnosis of work related injury of “Shoulder sprain Wrists sprain R = L” on 15 October 2020. In response to the question “How is the injury related to work...?”, the Certificates of Capacity each stated: “accident at work in October 2020 A big gate fell on to his shoulder and arm R, bruised his neck, shoulder and arm/hand (R) and L wrist – happened at work intermittent pain”.
The Certificates of Capacity collectively certified that the applicant had:
(a)    no work capacity from 22 December 2020 to 5 January 2020 (it appears that this date was stated in error, and was intended to be 5 January 2021);
(b)    capacity for some type of work from 6 January 2021 to 20 January 2021, and
(c)    no work capacity from 21 January 2021 to 5 March 2021.
Dr Ahmed’s referring report to Dr Yalizis dated 4 May 2021 stated that the applicant had an accident at work in October 2020 when a “big gate fell on to his shoulder and arm R, bruised his neck, shoulder and arm/hand (R) and L wrist”. The report stated that the applicant had intermittent pain and was seen on 15 December 2020. It stated that the applicant continued to work until 15 January 2021 when the pain got worse.

Dr Yalizis, orthopaedic surgeon, shoulder, elbow and trauma surgery

The applicant was referred to Dr Yalizis by Dr Ahmed.
Dr Yalizis’ report dated 20 May 2021 noted that the applicant had an accident at work in October 2020 when “he felt a heavy roller door came down and landed on his right shoulder without any warning”. Dr Yalizis stated that, on examination, the applicant has a positive Spurling’s sign. Dr Yalizis stated that the applicant “has an irritable shoulder joint but most of his concern is in the cervical spine. With rotation of his cervical spine, it re-creates pain in his lateral deltoid region”. Dr Yalizis stated that “My main concern is that the majority of his pain seems to emanate from his cervical spine and not purely from his shoulder pathology” which will have implications for the applicant’s therapy and recovery.
By letter dated 21 July 2021, Dr Yalizis referred the applicant to a physiotherapist for treatment. Dr Yalizis noted that the applicant “sustained a severe injury to his right cervical spine/trapezius region as the door fell onto his shoulder”. Dr Yalizis noted that the applicant has a history of a previous repair to his right shoulder labrum. Dr Yalizis stated that his clinical impression is a superior labral pathology, plus or minus biceps tendonitis, and SST tendinosis.
Dr Yalizis’ report dated 21 July 2021 stated that an MRI of the cervical spine “shows no evidence of any nerve root impingement” and an MRI of the shoulder “does show evidence of previous labral surgery with no definite anchors visible”. On examination, Dr Yalizis noted that the applicant had “tenderness over the long head of the biceps tendon proximally and he also has signs positive for superior labral pathology”. Dr Yalizis recommended physiotherapy and other treatment.
Dr Yalizis’ report dated 16 February 2022 noted that the applicant’s physiotherapy and rehabilitation had slowed. Dr Yalizis stated that the applicant would benefit from a biceps tenodesis but the applicant was keen to first exhaust nonoperative measures. Dr Yalizis stated that the applicant was also concerned about deformity of his right fourth metacarpal which was also sustained during the same accident and Dr Yalizis referred the applicant to a hand surgeon.
Dr Yalizis’ report dated 23 February 2022 noted that, on review that day, the applicant “has ongoing pain in his neck, trapezius and shoulder region. This is definitely related to his initial injury. He is now unable to work He has not worked effectively since the injury”. Dr Yalizis expressed concern about the applicant’s long-term prognosis and recommended surgical intervention in the form of a biceps tendinosis although noted that the applicant preferred to continue with non-operative measures at that time.

Mr Jacob, physiotherapist

Mr Jacob’s report dated 21 June 2022 stated that he had been treating the applicant in respect of work related injury on 15 October 2020. Mr Jacob stated that areas of injury included the applicant’s cervical spine, right shoulder, right upper limb and right hand.
Mr Jacob stated that the applicant’s cervical rotation is 25 degrees to the left and right and his right shoulder range is limited to 80 degrees of forward active flexion and 30 degrees of active abduction. Mr Jacob stated that, passively, the applicant’s ranges are very similar to his active range. Mr Jacob noted that the applicant also complained of immense weakness in his right hand and finds it almost impossible to grip and twist any object with his right hand. Mr Jacob stated that the applicant currently has no capacity to lift or push and pull. Further, the applicant has a sitting and standing tolerance of 30 minutes.

Dr Rustogi

Dr Rustogi’s reports dated 4 June 2021 and 17 June 2021 in relation to an MRI of the right shoulder on 4 June 2021, were in almost identical terms. In the report dated 17 June 2021, Dr Rustogi stated:
“IMPRESSION:
-    Evidence of prior surgery in the anterosuperior glenoid with small subcoracoid recess effusion and some anterosuperior glenohumeral capsular thickening. There is some chronic appearing fraying of the anterosuperior labrum but no definite large labral tear is visualised. No joint effusion.
-    Supraspinatus anterior fibre undersurface fraying.
-    Tiny partial tear in the interdigitating supraspinatus/infraspinatus fibres contained within focal globoid tendinopathy. Chronic posterosuperior degenerative undersurface cleft tear.
Comparison with prior imaging would be helpful.”

Dr Sanadgol

Dr Sanadgol’s report dated 19 June 2021 in relation to an MRI of the cervical spine on
18 June 2021 stated:
“Findings:
No true cervical cord compression. Cerebellar tonsils are minimally low lying on the right, still within normal range with no evidence of Chiari-1 malformation.
At C2/C3, there is no disc herniation, central canal or neural exit foraminal narrowing seen.
At C3/4, minimal posterocentral to paracentral disc protrusion. Mild indentation of anterior thecal sac. No central canal stenosis. No foraminal stenosis. Left foraminal annual tear/degeneration.
At C4/5, no significant disc herniation, central canal or neural exit foraminal narrowing seen.
At C5/6, there is minimal postero-central disc protrusion. No central canal or neural exit foraminal narrowing. Foraminal annular degeneration.
At C6/7, no disc herniation, central canal or neural exit foraminal narrowing.
At C7/T1, no disc herniation, central canal or neural exit foraminal narrowing seen. No site of cervical nerve root impingement.
Comment:
Mild cervical spondylotic changes with no site of definite cervical nerve root impingement.”

Dr Dimmick

Dr Dimmick’s report dated 24 March 2021 in relation to an MRI of the right wrist on
17 March 2021 stated:
“CONCLUSION
MRI of the RIGHT WRIST demonstrates:
-    No bone marrow oedema or occult fracture.
-    Intact TFCC and scapho-lunate ligament complexes.
-    No significant arthrosis within the wrist.
-    Intact flexor and extensor tendons with no evidence of an active tenosynovitis.
-    Mild capsule-synovial thickening dorsal to the dorsal radio-ulnar ligament/TFCC.”

Dr Yee, hand and wrist surgeon

The applicant was referred to Dr Yee.
Dr Yee’s report dated 15 March 2021 noted that he reviewed the applicant on that day. On examination, Dr Yee noted:
“He has a slightly bowed ring finger metacarpal which may represent an old injury or fracture. He has full flexion and extension and he has pain at his wrist when he goes to 45 [degrees] of flexion, more located over the ulnar side of the dorsal aspect. There is no pain on rotation and no TFC tear clinically.
His x-ray shows a slightly bowed 4^th metacarpal.
He needs an MRI scan looking at his wrist...”
Dr Yee’s report dated 29 March 2021, noted that he reviewed the applicant on that day with his MRI scan. Dr Yee noted that:
“There is no bone marrow oedema or occult fracture, no ganglion is seen and no intra-articular pathology.
Looking at the MRI scans, you can note that the 4^th metacarpal is bowed, and it is most likely that this is due to an old fracture although I cannot exactly date it, and it is possible that he did fracture it six months ago.
He is currently not working, and I suggested he have some hand therapy...”
Dr Yee’s report dated 1 April 2021, stated that it was possible that the applicant had a slight fracture of the ring finger metacarpal five months ago, but it was also possible that it was an old longstanding fracture. Dr Yee recommended a bone scan to more definitively determine the date of the fracture and to exclude any joint or other bone pathology in the applicant’s wrist.

Kildare Medical Centre

Various clinical notes of the Kildare Medical Centre record the applicant’s various attendances, symptoms, investigations and treatment to June 2022.
Clinical notes recorded that:
(a)    on 15 December 2020, the applicant attended Dr Ahmed and complained of persistent intermittent pain in his left and right wrists for the last three months.
Dr Ahmed conducted investigations including a right wrist ultrasound on or about 24 December 2020, which showed synovial thickening with increased vascularity at the dorsal aspect of the radiocarpal articulation but did not demonstrate a definite cause of focal synovitis;
(b)    on 23 February 2021, the applicant attended Dr Ahmed and complained of pain in both wrists and shoulders and noted that he had previously attended in respect of those complaints but forgot to mention an accident at work in October 2020 when a “big gate fell on to his shoulder and arm R, bruised his neck, shoulder and arm/hand (R) and L wrist – happened at work... seen here in 15/12/2020, advised to rest but pt continued to work until 15/1/2021, stopped working from 15/1/2021 when pain got worse”;
(c)    despite treatment, the applicant continued to complain at various times of ongoing right shoulder and wrist pain;
(d)    on 4 May 2021, the applicant sought treatment in respect of neck and shoulder pain and was referred to physiotherapy, Dr Yalizis and Dr Yee;
(e)    on 1 June 2021, clinical notes recorded that the applicant was experiencing ongoing pain in his shoulder and wrist at night, Dr Yee determined there was a fracture in his right hand following the work injury and Dr Yalizis advised the problem was likely in the applicant’s neck rather than his shoulder;
(f)    on 28 July 2021, an MRI of the cervical spine showed no evidence of nerve root impingement and an MRI of the shoulder showed evidence of previous labral surgery with no definite anchors visible, likely superior labral pathology, and
(g)    the applicant subsequently continued to complain of right shoulder, wrist and neck pain despite treatment.
The clinical notes also include numerous certificates of capacity (of various dates and some are undated) issued by general practitioner, Dr Ahmed. They each stated a diagnosis of work related injury of “Shoulder sprain Wrists sprain R = L” on 15 October 2020. In response to the question “How is the injury related to work...?”, Dr Ahmed stated on the Certificate of Capacity: “accident at work in October 2020 A big gate fell on to his shoulder and arm R, bruised his neck, shoulder and arm/hand (R) and L wrist – happened at work intermittent pain”. The Certificates of Capacity collectively certified that the applicant had:
(a)    no work capacity from 22 December 2020 to 5 January 2020 (this appears to be an error, and having regard to the other evidence it was intended to read from
22 December 2020 to 5 January 2021);
(b)    capacity for some type of work from 6 January 2021 to 20 January 2021, for usual hours and days subject to 5kg lifting/carrying restriction and 5kg pushing/pulling restriction, and
(c)    no work capacity from 21 January 2021 to 14 June 2022.
The certificates of capacity noted various investigations, treatment and opinions in relation to injury to the applicant’s shoulder, hand, wrist and neck.

Oxford Shoulder Score

An Oxford Shoulder Score dated 21 July 2021 noted various functional limitations experienced by the applicant.

Ultrasound – right wrist

A report of Western Imaging Group in respect of an ultrasound of the applicant’s right wrist on 22 December 2020 stated that there was synovial thickening with increased vascularity at the dorsal aspect of the radiocarpal articulation however a definite cause of focal synovitis was not demonstrated.

X-ray – right hand

A report of Western Imaging Group in respect of an X-ray of the applicant’s right hand on
2 March 2021 stated that there is no fracture and the bones and joints are within normal limits. It stated that the fourth metacarpal shaft is a little bowed, which may be physiological or related to past injury.

MRI – right wrist

A report of Castlereagh Imaging dated 24 March 2021 noted that an MRI of the right wrist demonstrated no bone marrow oedema or occult fracture, intact TFCC and scapho-lunate ligament complexes, no significant arthrosis within the wrist, intact flexor and extensor tendons with no evidence of an active tenosynovitis and mild capsule-synovial thickening dorsal to the dorsal radio-ulnar ligament/ TFCC.

Independent medical evidence
Dr Diebold, orthopaedic surgeon

At the request of the respondent, Dr Diebold provided an independent medical opinion by way of reports dated 10 May 2022, 26 May 2022 and 20 September 2022.
Dr Diebold’s report dated 10 May 2022 noted that he read the various imaging reports. He noted the applicant’s description of the injury on 15 October 2020 when a roller door fell unexpectedly and landed heavily on the right side of his neck and shoulder, and then also onto the dorsum of his right hand causing development of marked bruising and swelling of the right upper arm and swelling of the right hand. Dr Diebold noted that the applicant also had a sore left wrist, which settled within weeks. Dr Diebold stated that the applicant self-managed his symptoms but sought medical treatment when they did not resolve.
Dr Diebold noted the applicant’s present symptoms:
(a)    in relation to the right shoulder, the applicant described anterior and posterior pain, which was not experienced at rest but tends to come on with rotation of the arm rather than forward flexion;
(b)    in relation to the neck, the applicant has sharp, right-sided neck pain with some secondary headaches, not related to any particular movement or activity;
(c)    in relation to the right hand and wrist, the applicant described diffuse and vague pains over the dorsum of the right hand and wrist, and also over the ulnar side of the wrist and the index metacarpophalangeal joint, with pain worse with pronation and supination movements of the wrist, and
(d)    the applicant had 30 minutes driving tolerance and 10kg lifting tolerance with the right hand, but no lifting above waist level.
On examination, Dr Diebold noted:
(a)    there was no overreaction or superficial tenderness;
(b)    however, there were some concerning aspects to the presentation. These included that there was no objective abnormality on examination, including no muscle wasting or muscle spasm and imaging findings were unremarkable. Also, a number of the symptoms were atypical and not consistent with signs, such as diffuse wrist pain without tenderness, aggravation of shoulder pain with rotation rather than forward flexion and the posterior location of much of the shoulder pain and tenderness. Dr Diebold also noted the delay in seeking treatment for two months and ability to continue working for three months after the injury, were both inconsistent with a marked acute injury that would then cause significant symptoms for over 18 months;
(c)    Dr Diebold had the impression of a significant component of a non-organic component to the presentation;
(d)    in relation to the neck, the lower cervical facet joint was tender, there was no guarding or significant irritability with movement and the applicant had a full range of motion with flexion of chin to chest, lateral flexion 70 degrees bilaterally and rotation 80 degrees bilaterally. Pain was reproduced by right rotation and extension of the neck;
(e)    in relation to the right shoulder, there was no muscle wasting, mild tenderness of the posterior glenohumeral joint area only, moderately decreased range of motion, irritable mid-arc of movement and mildly positive Hawkins test but negative Jobe’s test for impingement, full strength of rotator cuff and speed’s test for bicipital tendinopathy was negative, and
(f)    in relation to the right hand and wrist, there was no swelling, colour, temperature or trophic changes. There was a small non-tender bump over the proximal forth metacarpal shaft and loss of prominence of the fourth metacarpal head. There was full painless range of motion of the wrist and hand joints which were non-tender. The applicant had normal sensation and motor function.
Dr Diebold diagnosed:
(a) mild right cervical facet inflammation, based on pain and aggravation of pain with extension and right rotation of the neck. Dr Diebold noted that the applicant had near full range of motion and only mild irritability, with normal MRI scan findings, indicating a mild level of pathology, and
(b) impingement syndrome right shoulder, based on the irritable mid-arc of movement and positive Hawkins test, with minimal signs of abnormality on MRI scan. Dr Diebold noted that the fraying of the anterosuperior labrum and the tendinosis and small partial tearing of supraspinatus and infraspinatus are not uncommon and do not explain symptoms or signs.
Dr Diebold stated that he was unable to find evidence of any physiological condition affecting the right hand or wrist apart from a non-tender slight deformity at the proximal shaft of the fourth metacarpal, which he believed was inconsistent with the reported symptoms.
Dr Diebold opined that the fourth metacarpal bowing was almost certainly an old injury because there were no signs on the MRI scan of 24 March 2021 of some ongoing oedematous changes in that bone.
Dr Diebold stated that, in his opinion:
(a)    the right cervical facet inflammation was consistent with the described mechanism of injury on 15 October 2020;
(b)    however, the described mechanism of injury was not consistent with impingement syndrome right shoulder, or any rotator cuff or labral pathology;
(c)    whilst the described mechanism of injury was consistent with causing fracture of the right fourth metacarpal bone, the ability to keep working, the normal MRI scan six months later and current symptoms and signs were not consistent with that mechanism of injury;
(d)    there were signs of inconsistency, described above, and
(e)    he had the impression of a significant non-organic component.
Dr Diebold stated that he would have expected the effects of the injuries in the neck, right shoulder and right hand would have persisted for a maximum of 12 months and would have resolved by now. On that basis, Dr Diebold found that the effects of the workplace injury no longer persist.
Dr Diebold’s supplementary report dated 26 May 2022 reiterated his opinion that the effects of the workplace injury no longer persist. In relation to the right shoulder injury and mild right cervical facet joint inflammation, Dr Diebold stated that the applicant has current capacity for work being normal hours, with ongoing restrictions of lifting limit of 10kg with right hand and no use of right hand above waist level. Dr Diebold expressed the view that the ongoing restrictions in work capacity are not work related.
Dr Diebold’s report dated 20 September 2022 was based on a file review. Dr Diebold stated that:
(a)    in relation to the applicant’s cervical spine, the report of Dr Guirgis made him reconsider his opinion on the ongoing cervical condition. Dr Diebold stated “I now agree that the ongoing cervical spine symptoms may still be due to the work-related injury of 15 October 2020. The history of injury was a significant one; of a heavy weight coming down onto the region of trapezius, imparting significant stress to the cervical facet joints. There were low grade objective signs of tenderness and irritability at extremes of range of motion in the neck. Although uncommon, it is reasonably possible that symptoms would persist for such a protracted period from the workplace injury”;
(b)    “... the diagnoses in the three main affected areas (cervical spine, right shoulder and right wrist) are based on minimal objective signs with no significant contribution from investigations, which in each case have shown common, low-grade non physiological changes that do not explain the symptoms. In other words, the evidence for an ongoing work-related condition in each area is subjective and barely verifiable”;
(c)    “... The thing that concerns me about this particular case is the fact that there are three separate areas to which this situation applies ie minimal objective signs of abnormality and investigation findings showing normal age-related physiological changes. This turns the case from one that seems somewhat implausible, int one that is highly implausible. In my opinion, this fails to pass the threshold of being credible for ongoing physiological injury in all areas (except the neck):
Considering each area;
Cervical spine. Diagnosis – inflammation of right lower cervical facet joints. The MRI findings of spinal disc protrusion is a common one, being present in about 30% of asymptomatic patients aged 30. The mechanism of injury of being crushed on the shoulder, rather than the head, is not consistent with causing a compressive axial injury to the cervical discs. I still felt there were low-grade signs of right sided facet joint inflammation. I now believe that an ongoing cervical condition could still be attributed to the workplace injury of 15 October 2020. In terms of the magnitude of the injury, it is important to point out that I found no guarding, and that Dr Guirgis only found guarding at the extremes of movement. I found full range of motion, while Dr Guirgis identified only a small degree of limitation.
Right shoulder. Diagnosis – impingement syndrome. MRI findings were of common, low grade physiological findings found in this age group. Superior labral tears have been found in 63% of asymptomatic people aged 45-60. The crush injury occurred in the region of trapezius. A superior compressive injury like this is not a mechanism that places great stress on the shoulder joint or subacromial space. The mechanism of the injury of most shoulder injuries involve stress on the outstretched limb. The signs of impingement that I identified were only mildly positive. His right shoulder was very well muscles, which was inconsistent with reported pain and stiffness for 18 months. The only significant clinical finding was decreased voluntary range of motion, but it was impossible to identify to what extent this was physiological.
Right wrist. The initial diagnosis was of soft tissue injury to dorsum of wrist. The current diagnosis is of no abnormal clinical condition. The mechanism of injury reported was of a dorsal blow to the wrist. This is consistent with the findings of dorsal synovial thickening at initial ultrasound and of mild dorsal capsular thickening and MRI scan on 17 March 2021. The absence of bone marrow oedema excludes a deeper condition that would cause persisting pain. At my review the right wrist had not tenderness and full, painless range of motion.
Right fourth metacarpal shaft. I can only repeat my reasoning from the previous report. Dr Yee on 29/03/2021 found that ‘this is most likely old, though possibly it occurred 6 months ago’. For two reasons I would consider it almost certain that this was an old injury; firstly, his ability to continue working for 2 months, which would be very unlikely in the presence of a fracture, and secondly the lack of an oedema on this bone on MRI scan 6 months after injury. Oedematous changes on MRI scan after fracture would be expected to be present for about 12 months. There were also significant inconsistencies, with variable tenderness, and a reproduction of hand pain with pronation and supination of the forearm.” (footnotes omitted);
(d)    the applicant’s “ability to continue working for 2 months before seeking medical attention suggests that, although he had symptoms, they were not of great severity. This is not consistent with the marked congoing symptoms 18 months later that are affecting the cervical spine, right shoulder, and right wrist”;
(e)    in relation to the applicant’s ongoing work-related cervical condition, objective findings indicate that symptoms are mild and would minimally disrupt work capacity. Dr Diebold could not identify a definite incapacity for work but recommended a graduated return to duties in view of the fact that the applicant has not worked for 18 months;
(f)    otherwise, Dr Diebold maintained his opinions expressed in his previous reports that he cannot find that any ongoing right shoulder, right wrist and right hand conditions are work-related, and
(g)    Dr Diebold assessed a total of 0% WPI.

Dr Guirgis, consultant orthopaedic surgeon

At the request of the applicant, Dr Guirgis provided an independent medical opinion by way of a report dated 14 July 2022.
Dr Guirgis noted that he considered various medical reports, investigations and relevant documents. He stated that the applicant gave the history of being involved in an accident at work when he was crouching down to work on the drive-stop of a roller door and somehow the roller door was activated and he heard the roller door coming down. The applicant turned his face sidewards and upwards to see what was happening and put his right hand upwards above the shoulder in a reflex action when the roller door landed on top of his right shoulder blade, right shoulder and right hand. Initially, the applicant did not bother much and continued working with the help of pain killers and modifying duties to avoid stressing his right arm, but in a matter of weeks his right forearm became discoloured, and he started seeking medical advice.
Dr Guirgis stated that there were no reported previous or subsequent condition or abnormality.
On examination, Dr Guirgis found:
(a)    in relation to the cervical spine, normal cervical lordosis was preserved with no torticollis deformity. Movements of the cervical spine were as follows: flexion 40 [N 45]; extension 35 [N 45]; right lateral flexion 30 [N 45]; left lateral flexion 40 [N 45]; right rotation 60 [N 80]; and left rotation 80 [N 80]. Guarding of the paraspinal collar muscles was demonstrated on exceeding that range. Tenderness was elicited over the C 5 and C 6 spines and relevant spaces, particularly over the right supraspinous fossa and over the right upper trapezius muscle. There were no neurological deficits in the upper limbs;
(b)    in relation to the right shoulder, the normal rounded contour of the shoulder joint was preserved. Movements of the shoulder joint were: abduction (100 right shoulder; 180 left shoulder); adduction (30 right shoulder; 50 left shoulder); flexion (150 right shoulder; 180 left shoulder); extension (40 right shoulder; 50 left shoulder); external rotation (50 right shoulder; 90 left shoulder); internal rotation (60 right shoulder; 90 left shoulder). There was evidence of altered rhythm between glenohumeral and scapulothoracic movements, evidence of reduced abduction power against resistance and tenderness over the anterior half of the rotator cuff of the shoulder;
(c)    in relation to the right wrist, there was tenderness over the dorsal radiocarpal ligament medially, and tenderness on rocking the head of the ulna against the radial bed. Movement of the wrist joint were: dorsi-flexion (50 right wrist; 60 left wrist); palmar flexion (50 right wrist; 60 left wrist); radial deviation (10 right wrist; 20 left wrist); ulnar deviation (20 right wrist; 30 left wrist); IRUJ supination (60 right wrist; 80 left wrist); IRUJ pronation (70 right wrist; 80 left wrist), and
(d)    in relation to the right hand, there was apparent dorsal angulation in the middle third of the fourth metacarpal bone consistent with a malunited fracture, which was causing recession of the fourth knuckle. The prehensile activities of the right hand and fingers were unaffected.

Dr Guirgis stated that, in his opinion, the accident on 15 October 2020 resulted in the following injuries:
(a)    post-traumatic mechanical derangement of the cervical area of the spine caused by musculo-ligamentous sprain/strain with possible intervertebral disc involvement. Dr Guirgis noted that the MRI on 19 June 2021 showed evidence of a left foraminal annular tear and of a central posterior disc protrusion extending backwards to indent into the ventral surface of the thecal sac at the C3-4 level. He also noted that there was MRI evidence of a central posterior disc protrusion extending backwards to touch but not indent the ventral surface of the thecal sac at the C5-6 level. He noted there was no evidence of facet joint arthropathic changes or osteophytic formation at any level. He noted Dr Sandagol’s comments of “Mild cervical spondylotic change with no site of definite cervical nerve root impingement” and that there were no complaints of radicular symptoms in either upper limb. Dr Guirgis stated that the applicant’s complaints and physical findings were consistent with axial mechanical neck pain which on the balance of probabilities was caused by the post-traumatic discopathic changes at those two levels;
(b)    post-traumatic symptoms in the right wrist joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. Dr Guirgis noted that the ultrasound on 23 February 2021 showed evidence of focal synovitis at the dorsal aspect of the wrist joint medially and the MRI studies on 17 March 2021 showed evidence of mild capsule-synovial thickening dorsal to the TFCC/radioulnar ligament;
(c)    recurrence of dormant post-traumatic symptoms in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. Dr Guirgis noted that the right shoulder was the site of previous successful arthroscopic repair of an anterosuperior labral tear in 2008. He noted that the MRI studies on 4 June 2021 showed evidence of post-surgical changes including chronic fraying at the edge of the anterosuperior labrum, but no recent tearing or recurrent tearing was demonstrated. Dr Guirgis noted MRI evidence of supraspinatus and infraspinatus tendon tendinopathy. He stated that such changes would render the shoulder joint more vulnerable to the effect of the traumatic stresses generated by the accident on 15 October 2020. He also noted MRI evidence of subacromial/subdeltoid bursitis, and
(d)    in the absence of evidence of a previous injury to the fourth metacarpal shaft, it was not possible to discard the probability that the bowing of the fourth metacarpal shaft represented a malunited fracture from the direct impact of the roller door onto the applicant’s hand. Dr Guirgis noted that the only impairment to the applicant’s hand was cosmetic and related to the dorsal angulation and recession of the fourth knuckle which did not affect the performance of the applicant’s right hand.
Dr Guirgis opined that applicant’s “[e]mployment was, and remained, a substantial contributing factor to the injuries”, and further the “injuries were a substantial contributing factor to the symptoms, incapacities and disabilities”.
Dr Guirgis expressly addressed and disagreed with the conclusions of Dr Diebold which were expressed in Dr Diebold’s reports dated 10 May 2022 and 25 May 2022. In addressing,
Dr Diebold’s conclusion that he found no evidence of significant underlying degenerative condition or pathology, Dr Guirgis stated:
(a)    in relation to the cervical spine, a clinical diagnosis in accordance with DRE II of the SIRA IV Guidelines for the Evaluation of Permanent Impairment (SIRA Guidelines) was appropriate having regard to the MRI studies, features of the history of the injury and clinical features which were present at the time of assessment, which included muscle guarding/spasm, asymmetric loss of range of movement and localised (not generalised) tenderness;
(b)    in relation to the right shoulder, having regard to the examination findings (which included mild tenderness of the posterior glenohumeral joint area only, moderately decreased range of motion, irritable mid-arc of movement and mildly positive Hawkins test for impingement, fraying of the anterosuperior labrum not marked, tendinosis and small partial tearing of supraspinatus and infraspinatus low-grade findings and no use of right hand above waist level) the correct conclusion should be deranged shoulder. Dr Guirgis noted that the applicant “presented with painful stiffness of the right shoulder”. Dr Guirgis stated:
“We are dealing here with a deranged shoulder. Mr Acin was doing the ultra-physically demanding duties of garage and gate installer for over 10 years, without any contemporary evidence of problems until he was injured on 15-10-2021 and even after his injury he continued to work but was struggling and when his forearm was discoloured, he started seeking medical advice. The mechanism of injury here was that the sudden drop of the heavy roller on top of the right side of his neck, the adjoining top of shoulder blade – (not only the trapezius but should also include all the right cervicoscapular and pectoral muscles), and the right shoulder itself had resulted in:
-Direct impact injury as a result of the sudden jarring of the shoulder
-Uncoordinated muscle contraction with violation of the normal muscle coupling essential for the proper balance between the glenohumeral and scapulothoracic components of the shoulder joint complex”;
(c)    in relation to the right wrist, Dr Guirgis noted that Dr Diebold’s findings were different from his findings on the day of consultation and that Dr Guirgis’ findings “were supported by the ultrasound and MRI scan findings”;
(d)    in relation to Dr Diebold’s statement that he would have expected the work-related injury to have persisted for a maximum of 12 months in the neck, right shoulder and right hand, Dr Guirgis stated “Unfortunately, injuries do not read or respect, Guides, Perceived plausible rationale or personal expectations. The prognosis for any injury is as individual as the person sustaining the injury”, and
(e)    the bowing of the fourth metacarpal shaft represented a malunited fracture from the direct impact of the roller onto his hand. The only impairment here is cosmetic and related to the dorsal angulation and recession of the fourth knuckle which did not affect the performance of the applicant’s right hand.
Dr Guirgis assessed a total of 15% WPI, which was calculated on the basis of 7% WPI in respect of the cervical spine and 9% in respect of the right upper extremity (right shoulder and right wrist).

Submissions of the applicant

The applicant’s written submissions dated 20 October 2022 may be summarised as follows:
(a)    the Commission should accept the applicant’s evidence, and in particular: the applicant’s rehabilitation from his shoulder injury in October 2008 back into full employment without restriction; injury to the applicant’s right shoulder, right hand and right wrist at work on 15 January 2020; and the applicant’s strong work ethic and commitment that motivated him to work with symptoms and restrictions from the work injury on 15 October 2020 until 15 January 2020 when the pain got worse;
(b)    the treating medical evidence, and particularly the evidence of Dr Yalizis, which supports a finding that the applicant sustained injury to his right shoulder, right arm, left wrist, right wrist and neck on 15 October 2020, which did not resolve and caused continuing incapacity despite conservative treatment, is compelling and should be given weight;
(c)    the opinion of the applicant’s independent medical expert, Dr Guirgis, contained in his report dated 14 July 2022, is compelling and should be given weight;
(d)    the opinion of Dr Guirgis should be preferred to the opinion of the respondent’s medical expert, Dr Diebold, who does not accept the applicant and does not provide a credible explanation for the applicant’s symptoms and restrictions;
(e)    the Commission should find bodily injury as sought and find that the applicant was totally incapacitated for work thereby;
(f)    given that there is agreement as to pre-injury average weekly earnings (PIAWE) in the sum of $1,850 per week, an award for total incapacity from 5 August 2022 is readily ascertainable, and
(g)    on that basis an award should be made in favour of the applicant awarding payment of weekly compensation in the sum of $1,480 per week from
5 August 2022 to date and continuing.

Submissions of the respondent

The respondent’s written submissions dated 28 October 2022 may be summarised as follows:
(a) the s 78 notice places in issue the question of whether the applicant is relevantly entitled to weekly compensation by reference to s 33 of the 1987 Act. Mr Robison acknowledged that the s 78 notice does not place injury, as such, in issue;
(b)    acting as model litigant, the respondent says that the claimed PIAWE is undercalculated and should be $1,850, which is agreed by the applicant;
(c)    the respondent’s late evidence should be admitted into evidence;
(d)    the report of Dr Diebold dated 20 September 2022 is of some assistance to the applicant in relation to the applicant’s ongoing cervical condition being related to the work injury of 15 October 2022, but Dr Diebold remains unable to change his opinion on diagnosis, capacity or causation;
(e)    capacity, thus, remains very much in issue;
(f)    the applicant has not discharged its onus;
(g)    the evidence that the applicant initially did not bother much and continued working with the help of pain killers and modifying his duties strongly suggest that, whilst there was an injury, it was minor and short lived;
(h)    the Commission should prefer and accept the opinion of Dr Diebold as to the prevailing medical understanding as to prognosis generally;
(i)    the applicant is not assisted by the opinion of Dr Yalizis dated 20 May 2021 as there is no comment on ongoing causation;
(j)    the radiological material may be regarded as an objective measure of the extent of injury and should be persuasive;
(k)    the effects of the workplace injury have ceased;
(l)    in the alternative, the applicant does not, in any event, lack capacity, and
(m)     the applicant is not entitled to weekly benefits and there should be an award for the respondent accordingly.

Submissions of the applicant in reply

The applicant’s written submissions in reply dated 4 November 2022 may be summarised as follows:
(a)    PIAWE is agreed at $1,850;
(b)    no objection is taken to the respondent’s late evidence;
(c)    whereas both doctors agree there was an injury to the neck on 15 October 2020, on checking the ARD “Injury Details” – “Injury Description”, the injury to the neck has not been pleaded. No issue to that has arisen and so as to regularise the pleading, leave is sought to add the word “neck” to this entry in the ARD, and
(d)    the applicant otherwise reasserted it’s position that treating medical evidence should be accepted and the opinion of Dr Guirgis should be preferred to the opinion of Dr Diebold.
As noted above, by COD issued on 14 December 2022, leave was granted to amend the ARD as requested by the applicant in its written submissions in reply dated
4 November 2022. Accordingly, the ARD was amended to the effect that the injury details/ injury description included injury to the applicant’s right shoulder, right arm, right wrist, left wrist and neck. The parties did not make any further significant submissions relevant to the determination of the issues.

Consideration

Section 4 of the 1987 Act states:
“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.”
Section 9A of the 1987 Act states:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)  the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)  the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The applicant’s evidence that he successfully rehabilitated from his shoulder injury in October 2008 back into full employment without restriction seems to be supported by the applicant’s evidence of his work history since that time. That evidence is not challenged.
The respondent accepts that the applicant sustained injury at work on 15 October 2020, in the nature of sprain of left wrist, sprain of right shoulder joint, contusion of right forearm and sprain of right wrist.[1] The respondent has not accepted that injury to the applicant’s neck was sustained at work on 15 October 2020, although it conceded Dr Diebold’s opinion in his report dated 20 September 2022 to that effect.[2]
[1] Insurer’s letter dated 8 April 2021, respondent’s AALD dated 6 October 2022, page 4.
[2] Respondent’s written submissions dated 28 October 2022, at [10], [11].
The applicant’s evidence of the mechanism of injury on 15 October 2020, namely that he was injured when a heavy roller door unexpectedly fell onto his right shoulder and hand, is generally consistent with the mechanism of injury that the applicant variously reported to treating practitioners and the independent medical experts.
The applicant’s evidence that, for various reasons, he was motivated to continue to work with restriction for a period despite pain, until he ceased to work from 15 January 2021 because of ongoing symptoms, restrictions and limitations of the injury, is consistent with the referring report of Dr Ahmed dated 4 May 2021.
Dr Ahmed’s referring report to Dr Yalizis dated 4 May 2021, notes the applicant’s complaint of injury and ongoing symptoms after a “big gate” fell onto his right shoulder, right arm, bruised his neck, shoulder, right arm and hand and left wrist. Dr Ahmed noted that the applicant had intermittent pain when he was seen on 15 December 2020 and that the applicant had continued to work until 15 January 2021 when the pain got worse.
The various certificates of capacity subsequently issued by Dr Ahmed and other clinical notes support the finding that the applicant’s injury did not resolve despite conservative treatment and the applicant continued to be incapacitated for work during the relevant period.
In his report of 21 July 2021, Dr Yalzis diagnosed the applicant as having “sustained a severe injury to his right cervical/spine/trapezius region”. He noted a previous repair to the right shoulder labrum which appeared to have resolved and be unrelated. Dr Yalizis’ most recent specialist opinion dated 23 February 2022, no more than a few months before issue of the s 78 notice and declinature of compensation, was that the applicant “has ongoing pain in his neck, trapeziou and shoulder region... definitely related to his initial injury” and that the applicant was “now unable to work”. At that time, Dr Yalizis recommended operative treatment in the form of a biceps tenodesis, although the applicant preferred to first continue with non-operative treatment. Dr Yalizis was to review the applicant in three months.

I accept that the evidence and opinion of treating specialist, Dr Yalizis, is compelling because he is an orthopaedic surgeon specialising in shoulder, elbow and trauma surgery. Dr Yalizis examined the applicant and prepared reports on five occasions over the critical treating period. Dr Yalizis’s reports indicate that the applicant’s presentation and complaints were uniform and consistent over the period. Further, Dr Yalizis had a range of diagnostic radiological investigations to support his opinion.
The evidence and opinion of the respondent’s independent medical expert, Dr Diebold, is stated in his reports dated 10 May 2022, 26 May 2022 and 20 September 2022. For his last report, Dr Diebold considered the report of Dr Guirgis dated 14 July 2022.
The evidence and opinion of the applicant’s independent medical expert, Dr Guirgis, is stated in his report dated 14 July 2022. Dr Guirgis considered the two reports of Dr Diebold dated 10 May 2022 and 26 May 2022.
Drs Diebold and Guirgis each examined the applicant on only one occasion. Both were given a history of the injury and relevant diagnostic, radiological and treating reports.
In relation to the applicant’s neck, Dr Diebold diagnosed low grade inflammation of right lower cervical facet joints, which he considered to be consistent with the reported injury on 15 October 2020. Dr Guirgis opined that the applicant had suffered a post-traumatic mechanical derangement of the cervical spine caused by musculo-ligamentous sprain/strain with possible intervertebral disc involvement. Dr Guirgis opined, by reference in part to the MRI study of 19 June 2021, that the applicant’s complaints and physical findings were consistent with axial mechanical neck pain which, on the balance of probabilities, was caused by the post-traumatic discopathic changes at the C3-4 and the C4-5 levels.
Dr Guirgis attributed the condition to the work injury.
In relation to the applicant’s right shoulder, Dr Diebold diagnosed impingement syndrome, based on the signs of irritable mid-arc of movement and positive Hawkins test, though with minimal signs of abnormality on MRI scan. He said that condition was not consistent with the reported injury on 15 October 2020. Dr Guirgis opined, by reference to MRI studies of
4 June 2021 which showed post-surgical changes to the right shoulder but no recent tearing or recurrent tearing and MRI evidence of supraspinatus and infraspinatus tendon tendinopathy and subacromial/subdeltoid bursitis, that the applicant had a recurrence of dormant post-traumatic symptoms of the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
Dr Guirgis attributed the condition to the work injury.
In relation to the applicant’s right wrist, Dr Diebold was unable to find evidence of any physiological condition affecting the wrist. Dr Guirgis opined, by reference to the ultrasound study of 23 February 2021 which showed evidence of focal synovitis at the dorsal aspect of the wrist joint medially and the MRI study of 17 March 2021 which showed evidence of mild capsule-synovial thickening dorsal to the TFCC/radioulnar ligament, that the applicant had post-traumatic symptoms in the right wrist joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. Dr Guirgis attributed the condition to the work injury.
In relation to the applicant’s right hand, Dr Diebold accepted there was abnormality of the proximal shaft of the fourth metacarpal which was not found to be tender. Dr Diebold opined that it was likely not a new injury and unrelated to the reported work injury on
15 October 2020. Dr Guirgis opined that, in the absence of evidence of prior injury to the fourth metacarpal shaft, there was a probability that bowing of the fourth metacarpal shaft represented a malunited fracture from the direct impact of the roller door onto the applicant’s hand. Dr Guirgis believed the injury to the fourth metacarpal to be cosmetic and non-performance affecting.
Dr Diebold initially found that the effects of the workplace injury no longer persist. In his supplementary report of 26 May 2022, Dr Diebold conceded that the applicant had restrictions to his work capacity with respect to doing normal hours, lifting weights of 10kg with his right hand and having no use of his right hand above waist level. The limitations identified by Dr Diebold could be regarded as significant. However, Dr Diebold adhered to his previous opinion that those limitations were unrelated to the subject work injury.
In his final report of 20 September 2022, Dr Diebold accepted that the applicant has ongoing symptoms in the neck which can be attributed to the work injury on 15 October 2020. However, Dr Diebold stated that the neck symptoms are mild and would cause minimal disruption of work capacity. Dr Diebold indicated that he was unable to change his mind on diagnosis, capacity or causation. Further, Dr Diebold could not identify a definite incapacity for work but recommended a graduated return to work in view of the fact that the applicant has not worked for 18 months.
In relation to the assessment of the applicant’s whole permanent impairment as a result of the work injury, Dr Guirgis assessed the applicant to have a 7% impairment of his cervical spine and a 9% impairment of his right upper extremity (in respect of the applicant’s right shoulder and right wrist). This converted to an overall 15% permanent impairment. Dr Guirgis directly attributed the applicant’s impairment to the work injury on 15 October 2020.
There is a degree of consistency in the applicant’s reported symptoms and clinical findings noted by both Dr Diebold and Dr Guirgis.
Dr Diebold noted a number of issues with Dr Guirgis’ conclusions, which were highlighted in the respondent’s submissions.
Dr Diebold clearly did not accept the applicant and believed there was a non-organic component to his presentation. However, I note that Dr Diebold did not provide any significant or compelling alternative explanation for the applicant’s reported ongoing symptoms and restrictions and the clinical findings.
Dr Diebold noted the applicant’s two-month delay in seeking medical treatment following the injury on 15 October 2020. The respondent submitted that such delay in seeking treatment, and the fact that the applicant continued working with the help of pain killers and modifying his duties for that period, indicates that any injury was short-lived. On balance, I consider that such delay is adequately explained by the applicant’s evidence of his strong work ethic and commitment that motivated him to work with symptoms and restrictions from the work injury on 15 October 2020 until 15 January 2021 when the pain got worse. That is consistent with the evidence of Dr Ahmed.
Dr Diebold raised the “normal” MRI scan results some six months after the injury on
15 October 2020. The respondent submitted that the radiological material may be regarded as an objective measure of the extent of injury and should be persuasive. Dr Guirgis essentially stated that the MRI results were not conclusive in that regard because they did not sufficiently explain the applicant’s ongoing presentation and limitations. Dr Guirgis explained the basis for his opinion in that regard in the context of the investigations.
Dr Diebold also raised atypical and inconsistent symptoms such as the lack of muscle wasting and muscle spasm. Dr Diebold’s finding that there was no muscle wasting or muscle spasm could possibly be explained by the significant physiotherapy treatment and home based exercises that the applicant undertook which is noted in the evidence of Dr Ahmed and Mr Jacob.
Dr Diebold’s concerns were largely addressed by Dr Giurgis. Dr Diebold’s first two opinions were specifically considered and rejected by Dr Guirgis who provided a logical explanation for his views.
The respondent submitted that the applicant is not assisted by the opinion of Dr Yalizis dated 20 May 2021 as there is no comment on ongoing causation. However, I note that Dr Yalizis appears to have accepted, and in any event referred to, the work injury on 15 October 2020. Throughout his various reports, Dr Yalizis appears to have regarded the injury as an ongoing injury and he certainly did not refer to any other cause of injury.
The described mechanism of injury was a traumatic forceful impact to the applicant’s right shoulder and hand. I note that there is no compelling evidence of alternative causation of injury, contrary to the evidence of the applicant, his treating practitioners and the applicant’s independent medical expert, Dr Guirgis.
Having considered the evidence as a whole, I am satisfied that the applicant’s evidence is consistent and credible, and I accept the applicant’s evidence.
Further, considering the evidence as a whole, I prefer and accept the evidence of the applicant’s treating practitioners and independent medical expert, Dr Guirgis, which I find to be compelling. It provides a logical rationale of the applicant’s ongoing symptoms and restrictions evidenced by the applicant and his treating practitioners.
On that basis, I find that:
(a)    the applicant sustained personal injury to his neck, right shoulder, right wrist/hand and left wrist in the course of employment on 15 October 2020;
(b)    the applicant’s employment was the substantial contributing factor to his injury, and
(c)    the applicant was and remained totally incapacitated for work as a result of the injury to his neck, right shoulder and right wrist from 5 August 2022 and continuing.

The award to be entered

Wage schedules have been filed by the parties. The parties are in agreement that PIAWE is $1,850 per week.
It is appropriate to make an award for weekly compensation pursuant to s 37(1) of the 1987 Act at the rate of 80% of PIAWE.
On that basis, an award is made in favour of the applicant for payment of weekly compensation pursuant to s 37(1) of the 1987 Act in the sum of $1,480 per week from
5 August 2022 to date and continuing.

SUMMARY

On the basis of the evidence, I find that:
(a)    the applicant sustained personal injury to his neck, right shoulder, right wrist/hand and left wrist in the course of employment on 15 October 2020;
(b)    the applicant’s employment was the substantial contributing factor to his injury, and
(c)    the applicant has no capacity for work since 5 August 2022.
It is appropriate to make an award for weekly compensation pursuant to s 37(1) of the 1987 Act at the rate of 80% of PIAWE. The parties agree that PIAWE is $1,850 per week.
Accordingly, the Commission orders the respondent to pay the applicant weekly compensation in the amount of $1,480 per week from 5 August 2022 to date, and continuing pursuant to s 37(1) of the 1987 Act.

[2022] NSWPIC 743

23 December 2022