Akkari v Akkari Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Akkari v Akkari Group Pty Ltd [2022] NSWPIC 520
APPLICANT:	Maroun Akkari
RESPONDENT:	Akkari Group Pty Limited
Member:	Anthony Scarcella
DATE OF DECISION:	20 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Issues; sections 4(a) and/or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) injuries to the left shoulder, lumbar spine and right knee disputed; the value of contemporaneous evidence; the weight to be given to expert evidence; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Onassis and Calogeropoulos v Vergottis, Watson v Foxman considered and applied; Held – the applicant suffered injuries to the right shoulder and the cervical spine arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the applicant did not suffer injuries to the left shoulder, lumbar spine and right knee arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the matter is remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment in respect of the right upper extremity (right shoulder) and cervical spine under the Workplace Injury Management and Workers Compensation Act 1998.
determinations made:	1. The applicant suffered injuries to the right shoulder and the cervical spine arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant did not suffer injuries to the left shoulder, lumbar spine and right knee arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the Workers Compensation Act 1987.
orders made:	3. The applicant is granted leave to amend the Application to Resolve a Dispute to plead injury as follows: (a) frank injury to the right shoulder, being a rotator cuff tear; (b) frank injury to the left shoulder causing aggravation, acceleration, exacerbation and deterioration of a pre-existing disease process; (c) a soft tissue aggravation of underlying degenerative changes in the cervical spine and the lumbar spine due to the frank injury resulting in an aggravation, acceleration, exacerbation and deterioration of the pre-existing disease process; (d) a soft tissue injury to the right knee, and (e) to the extent that the applicant’s right knee injury was aggravated by the subsequent fall in 2019, that fall and any resulting injury is consequential to the injury on 14 June 2018, in that, the fall was as a result of pain and instability in the knee caused by the frank injury to the right knee. 4. Award for the respondent in respect of the claimed injury to the left shoulder. 5. Award for the respondent in respect of the claimed injury to the lumbar spine. 6. Award for the respondent in respect of the claimed injury to the right knee. 7. The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 14 June 2018. Body System: The right upper extremity (right shoulder) and the cervical spine. Method of Assessment: Whole Person Impairment. 8. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute dated 14 June 2022 and attached documents; (b) Reply to Application to Resolve a Dispute dated 5 July 2022 and attached documents; (c) respondent’s Application to Admit Late Documents dated 27 July 2022 and attached documents; (d) applicant’s Application to Admit Late Documents dated 29 July 2022 and attached documents, and (e) this Certificate of Determination and Statement of Reasons

STATEMENT OF REASONS

BACKGROUND

The applicant, Maroun Akkari, is a 63-year-old man who was employed by the respondent, Akkari Group Pty Limited (AGPL) as a project manager/site manager.
On 14 June 2018, Mr Akkari alleges that he sustained injuries to his head, right eye, right shoulder, left shoulder, neck, lower back, right hip and right knee when he fell forward and struck his head on a block of timber. The fall was caused when his right foot suddenly and aggressively came out of his bogged shoe as he attempted to extricate himself from mud in a field on a building site.
Mr Akkari lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 4 May 2021, Mr Akkari, through his lawyers, claimed permanent impairment compensation under s 66 of the 1987 Act in respect of injuries he sustained on 14 June 2018 in the course of his employment with AGPL.[1]
[1] Application to Resolve a Dispute at page 24.
On 20 August 2021, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of ss 4 and 9A of the 1987 Act to the lumbar spine, right knee and left shoulder. EML did not dispute that Mr Akkari had sustained injuries to his cervical spine and right shoulder.[2]
[2] Application to Resolve a Dispute at pages 13-18.
On 23 May 2022, Mr Akkari, through his lawyers, requested a review of the decision contained in EML’s dispute notice dated 20 August 2021 under s 287A of the 1998 Act.[3]
[3] Application to Resolve a Dispute at page 12.
On 7 June 2022, EML issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability in respect of the claimed injuries to the lumbar spine, right knee and left shoulder.[4]
[4] Application to Resolve a Dispute at pages 7-11.
Mr Akkari, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 14 June 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming permanent impairment compensation under s 66 of the 1987 Act as a result of the injury sustained in the course of his employment with AGPL on 14 June 2018.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a)    whether Mr Akkari sustained an injury to his left shoulder on 14 June 2018 within the meaning of ss 4 and 9A of the 1987 Act;
(b)    whether Mr Akkari sustained an injury to his lumbar spine on 14 June 2018 within the meaning of ss 4 and 9A of the 1987 Act, and
(c)    whether Mr Akkari sustained an injury to his right knee on 14 June 2018 within the meaning of ss 4 and 9A of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration in the Commission’s Darlinghurst premises on 3 August 2022. Mr Luke Morgan of counsel appeared for Mr Akkari, instructed by Mr Sayyad Sabad, solicitor and Ms Nicole Compton of counsel appeared for AGPL, instructed by Ms Nikki McPhan, solicitor. Also present from EML was Mr Albert Shum.
By consent, Mr Akkari was granted leave to amend the ARD to plead injury as follows:
(a)     frank injury to the right shoulder, being a rotator cuff tear;
(b)     frank injury to the left shoulder causing aggravation, acceleration, exacerbation and deterioration of a pre-existing disease process;
(c)     a soft tissue aggravation of underlying degenerative changes in the cervical spine and the lumbar spine due to the frank injury resulting in an aggravation, acceleration, exacerbation and deterioration of the pre-existing disease process;
(d)     a soft tissue injury to the right knee, and
(e)     to the extent that Mr Akkari’s right knee injury was aggravated by the subsequent fall in 2019, that fall and any resulting injury is consequential to the injury on 14 June 2018, in that, the fall was as a result of pain and instability in the knee caused by the frank injury to the right knee.

Injuries to Mr Akkari’s cervical spine and right shoulder on 14 June 2018 were not disputed by AGPL.
During the conciliation phase the parties agreed that, once there had been a determination in respect of the injuries in dispute, the matter should be remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act and that all the documents in evidence should be provided to the Medical Assessor.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 14 June 2022 and attached documents;
(b)    Reply to ARD (Reply) dated 5 July 2022 and attached documents;
(c)    Application to Admit Late Documents (AALD) lodged by AGPL dated 27 July 2022 and attached documents, and
(d)    AALD lodged by Mr Akkari dated 29 July 2022 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Maroun Akkari’s evidence

In evidence there is a statement by Mr Akkari dated 18 October 2021.[5] I will now refer to the relevant parts of that statement.
[5] ARD at pages 1-5.
Mr Akkari stated that, on 1 June 2018, he commenced full-time employment with AGPL as a project manager/site manager and that his duties included but were not limited to, administrative/office work, planning and supervising other employees.
Mr Akkari stated that on 14 June 2018, he was working on a field/building site in Gosford assisting with the supervision of other employees. He was performing office work when an employee requested him to leave the office and check fencing that had collapsed on the building site.
Mr Akkari stated that, as he was walking towards the collapsed fence, his right foot became stuck in mud and sank about 30cm into the mud. He panicked and attempted to pull his foot out of the mud but it kept sinking deeper. As he attempted to remove his right foot from the mud, his left foot became stuck and his right foot “aggressively flew out”[6] of his shoe. He lost his balance and fell face forward to the ground heavily hitting a nearby block of timber with his head. He was briefly knocked unconscious. When he regained consciousness, he was very confused and dizzy.
[6] ARD at page 1 at [9].
Mr Akkari stated that he injured his right eye and head in the fall. He was bleeding around the region of his right eye and sustained a closed head injury. He was taken to Gosford Hospital where he underwent observation for about five hours before being discharged. Further, Mr Akkari stated:
“I also sustained injuries to both shoulders, neck, lower back, right hip and right knee as a consequence of the fall. My pain was immediate and it progressively worsened. I experienced pain radiating to both arms.”[7]
[7] ARD at page 2 at [12].
Mr Akkari stated that following the fall at work, he undertook light duties for about six months but as his pain became intolerable, he was certified unfit for work and he has continued to be certified unfit for work.
Mr Akkari stated that he had sustained an injury to his left shoulder in respect of a work-related incident about 12 to 13 years earlier and had undergone surgery to repair a tear. He made a good recovery and returned to his pre-injury duties following the surgery without ongoing complications or restrictions. Since the fall at work on 14 June 2018, he has experienced discomfort, pain and a restriction of movement in his left shoulder.
Mr Akkari stated that, since the fall at work on 14 June 2018, both his shoulders have been very stiff and tense and he has been unable to move his arms above shoulder height freely. The pain in his right shoulder is worse than the pain in his left shoulder. He experiences constant pain and discomfort in his right shoulder and he struggles to move his right shoulder and hold heavy items because of the pain. He has undergone cortisone injections to both shoulders and his neck since the fall.
Mr Akkari stated that he injured his right knee as a result of the mechanism of his fall on 14 June 2018. He had undergone physiotherapy to help manage the pain and symptoms in his right knee. Mr Akkari referred to the incident where he fell at home in November 2019 and stated that he believed the reason he fell was due to the pain and instability in his right knee caused by the work-related fall on 14 June 2018. He believed that the pain in his right knee was caused by the work-related fall because he landed on his right knee. Further, Mr Akkari stated that he had undergone treatment for his right knee prior to the fall at home in November 2019. He denied any previous injury to his right knee.
Mr Akkari stated that following the work-related fall on 14 June 2018, he experienced a painful sensation in his lower back as a consequence of the jarring of his feet in the mud, which led to him being in an awkward position and subsequently fall.
Mr Akkari stated that, since the work-related fall on 14 June 2018, he has continued to suffer from headaches, neck pain, lower back pain, shoulder pain, hip pain and right knee pain and that his condition continues to deteriorate.
Mr Akkari stated that he underwent physiotherapy at Restwell Street Medical Centre one to two times per week for about six months without any significant improvement in his condition. The treatment provided temporary relief. He now participates in a regular home exercise program as recommended by his physiotherapist with very minimal improvement. He undergoes Thai massages one to two times per week to manage the pain and tension in his head, shoulders and neck. He medicates with Mobic and other pain medication to manage his symptoms but the medication provides very little relief and it is only temporary.
Mr Akkari stated that he had consulted specialists at St George Private Hospital in respect of his neck symptoms. In 2020, he underwent cortisone injections to his right knee and right shoulder, which only provided temporary relief.
Mr Akkari provided a list of his continuing disabilities and restrictions resulting from the alleged injuries suffered in the work-related fall on 14 June 2018.[8]
[8] ARD at pages 4-5 at [33]-[43].

The AGPL incident report

In evidence, there is a document on AGPL letterhead dated 14 June 2018 and headed “Incident report” (the incident report).[9] The document was unsigned and its date appeared to have been altered. There was nothing to identify the author of the incident report.
[9] ARD at page 6.
The incident report confirmed that Mr Akkari had been employed by AGPL as a supervisor since 1 June 2018 to supervise construction work at 36-38 Showground Road, Gosford.
In respect of the particulars of Mr Akkari’s injury, the incident report stated:
“Maroun Akkari while on the field got his foot stuck in to the mud, as he tried to free himself, he fell face forward hitting a timber on the floor.
As a result of the accident, Maroun suffered head injury, right shoulder, right rib pain and right leg pain.”[10]
[10] ARD at page 6.
The incident report further recorded that Mr Akkari was admitted to Gosford Hospital at about 11.00am and was discharged at about 4.00pm.

The treating medical evidence

There were no clinical records from Gosford Hospital in evidence. However, there was a certificate of capacity issued to Mr Akkari by the Gosford Hospital emergency department registrar, Dr Katharine Yan dated 14 June 2018.[11] Dr Yan’s diagnosis of work-related injury was that of a mild head injury. No other injuries were recorded in the certificate. The only description relating the injury to work were the words, “occurred at work”.[12]
[11] Reply at pages 15-16.
[12] Reply at page 15.
On 18 June 2018, Mr Akkari consulted Dr Mona Noussair, general practitioner, of Mona Family Practice. Mr Akkari’s Mona Family Practice clinical records were in evidence.[13] In the clinical records, Dr Noussair recorded the reason for Mr Akkari’s visit being in respect of hypertension. Dr Noussair took a history that Mr Akkari had been supervising a job on a construction site on 14 June 2018; his feet were stuck in mud; he tried to pull himself out; his legs came out of his shoes; and he fell on his face. He sustained facial abrasions, a painful right shoulder radiating down the right arm and painful right lower ribs. He had attended Gosford Hospital and received treatment. On examination, Dr Noussair observed a small abrasion on the outer part of the left eyebrow with tenderness; no focal neurological signs; tenderness in the head of the right humerus; restricted adduction of the right shoulder; and tenderness in the right lower ribs along the mid-axillary line. Dr Noussair referred Mr Akkari for a CT scan of his brain, an ultrasound of his right shoulder and X-rays of his chest and right ribs.[14]
[13] ARD at pages 108-114.
[14] ARD at pages 109-110.
On 18 June 2018, Dr Noussair issued Mr Akkari with a certificate of capacity[15] wherein she diagnosed the work-related injury to be one of a mild head injury, an injury to the right ribs and a soft tissue injury to the right shoulder. In answer to the question on the certificate as to how the injury related to work, she recorded:
“his feet were stuck in the mud at construction site, tried to pull himself out – fell on his face.”[16]
[15] Reply at pages 15-19.
[16] Reply at page 17.
On 19 June 2018, Mr Akkari underwent an X-ray of his chest and right ribs by Dr John Curran, radiologist. Dr Curran concluded that the x-rays revealed no abnormalities.[17]
[17] ARD at page 114.
On 25 June 2018, Mr Akkari underwent an ultrasound of his right shoulder. Dr Peter Hunter, radiologist, reported mild subdeltoid bursitis.[18]
[18] ARD at page 47.
On 9 July 2018, Mr Akkari consulted Dr Noussair. She noted in the clinical records that the X-ray of his chest and right ribs disclosed no abnormality and that the ultrasound of his right shoulder demonstrated right subdeltoid bursitis. Dr Noussair issued Mr Akkari an extended certificate of capacity. She referred Mr Akkari to Mr Harry Touma, physiotherapist and also referred him for a right shoulder steroid injection.[19]
[19] ARD at page 110.
On 9 July 2018, Dr Noussair issued Mr Akkari with a certificate of capacity that diagnosed the work-related injury as right subdeltoid bursitis.[20]
[20] Reply at pages 20-22.
On 16 August 2018, Mr Akkari consulted Dr Noussair complaining of ongoing pain in the right shoulder. Dr Noussair issued a further certificate of capacity and referred Mr Akkari to Dr Leonard Kuo, orthopaedic surgeon .[21]
[21] ARD at page 110.
On 30 August 2018, Mr Akkari consulted Dr Kuo. In evidence, there is a report by Dr Kuo to Dr Noussair dated 30 August 2018.[22] Dr Kuo took a history that Mr Akkari had a fall on a construction site on 14 June 2018 and landed heavily onto the front and side of his body and suffered right-sided rib pain, neck and right shoulder symptoms. Dr Kuo reported that Mr Akkari currently complained of pain along the right side of his neck that extended into the trapezius and down the right arm. He also complained of paraesthesia that may extend into the C5 and C6 dermatomal distribution. Dr Kuo observed that Mr Akkari had marked focal tenderness over the insertion of the deltoid and also over the common extensor muscle mass. Dr Kuo noted that Mr Akkari denied any previous problems with his right shoulder but did have his left rotator cuff repaired in 2008. Dr Kuo felt that most of Mr Akkari’s symptoms were coming from his cervical spine. He had evidence of spondylosis and the fall had aggravated the spondylosis. Dr Kuo referred Mr Akkari for X-rays and a CT scan of the cervical spine and recommended a whole body bone scan to exclude an associated rib fracture. Dr Kuo also referred Mr Akkari for physiotherapy.
[22] AGPL's AALD dated 27 July 2022 at pages 1-2.

On 12 September 2018, Mr Akkari consulted Dr Noussair in respect of a recurrent urinary tract infection and complained of back pain. On examination, Dr Noussair observed tenderness in the lumbar spine and the mid-thoracic spine with a decreased range of motion. There were no neurological signs. She reassured Mr Akkari and advised him to avoid heavy lifting, pushing and pulling. She also advised him to reduce weight and referred him for a CT scan of his lumbar spine and thoracic spine.[23]
[23] ARD at pages 110-111.
On 13 September 2018, Mr Akkari underwent a CT scan of the thoracic spine. The CT scan report concluded the presence of advanced spondylosis between T7 and T9 with hyperostosis and widespread facet arthropathy. The advanced pathology between T2 and T7 would be contributing to Mr Akkari’s back pain.[24]
[24] ARD at page 46.
On 14 September 2018, Mr Akkari consulted Dr Noussair and discussed the outcome of his thoracic spine CT scan. Dr Noussair referred Mr Akkari for a DEXA scan (bone density scan).[25]
[25] ARD at page 111.
On 24 September 2018, Mr Akkari consulted Dr Noussair complaining of neck and back pain and advising that he had not been for the bone density scan. Dr Noussair referred him to Dr Ashish Diwan, spinal surgeon.[26]
[26] ARD at page 111.
On 12 October 2018, Mr Akkari underwent a bone scan. Dr John Kok, radiologist, reported that there was no abnormal increased tracer uptake in the ribs to suggest any rib fracture. There was increased uptake at the C5/6, C6/7, T1/2, T7/8, T8/9, T11/12 and L3/4 discovertebral levels in keeping with degenerative disease. There was increased uptake at the acromioclavicular joints, sternoclavicular joints, wrists/hands and medial compartment of the right knee and feet, all in keeping with arthritis.[27]
[27] ARD at page 113.
On 15 October 2018, Mr Akkari consulted Dr Noussair and they discussed the outcome of the bone scan. Mr Akkari requested Dr Noussair to refer him to someone else. Dr Noussair referred Mr Akkari to Dr Mark Davies.[28]
[28] ARD at page 111.
On 18 October 2018, Mr Akkari consulted Dr Noussair complaining of ongoing right shoulder pain and an inability to manage work. Dr Noussair issued Mr Akkari with a certificate of capacity.[29]
[29] ARD at pages 111-112.
On 18 December 2018, Mr Akkari attended on Dr Noussair requesting a certificate of capacity. Dr Noussair recorded the following:
“he is asking for WorkCover certificate refused, he didn’t see any specialist I referred him to see.”[30]
[30] ARD at page 112.
There were no further entries in the Mona Family Practice clinical records in respect of Mr Akkari.
On 16 January 2019, Mr Akkari consulted Dr Diwan, who reported back to Dr Noussair, Dr Nasr Ragy and EML.[31] Dr Diwan reported Mr Akkari’s presenting complaints as right-sided neck pain, right shoulder pain and upper arm pain. Dr Diwan took a history that Mr Akkari had a significant fall at work when his foot became stuck in mud and he tried to pull himself out and fell onto his side, hitting his head. Since the fall the pain in his neck and arm had become significantly bothersome. Dr Diwan referred to the CT scan and bone density scan findings. Dr Diwan’s impression was one of an ageing spine with osteoarthritis that had been subjected to an acute injury in May 2018 [sic, 14 June 2018] with residual and ongoing facetal pain. Dr Diwan opined that the type of injury Mr Akkari sustained had aggravated asymptomatic ageing and stiff joints. Treatment options were discussed. Mr Akkari was keen on the surgical option but Dr Diwan suggested that the first step should be to try a facet block and arranged for the same. He also suggested a repeat MRI scan and expressed a desire to access the one Mr Akkari underwent three years previously. Dr Diwan concluded that he would be better able to advise once he had seen Mr Akkari’s MRI scans and his response to the facet block.
[31] AGPL's AALD dated 27 July 2022 at pages 3-4.
On 22 November 2019, Mr Akkari consulted Dr Asher Altman, general practitioner, of Restwell Street Medical Centre. Mr Akkari’s Restwell Street Medical Centre clinical records were in evidence.[32] The clinical records stated the reason for the consultation was in respect of right knee pain. Dr Altman took a history that Mr Akkari had sustained a fall 10 days previously when he tripped over a broken tile whilst taking out the rubbish and dropped on his right knee. Mr Akkari told Dr Altman that he had right knee swelling and underwent an
[32] ARD pages 115-156.
[33] ARD at pages 116-117.
X-ray on 16 November 2019 that demonstrated no fracture or focal bony abnormality. On examination, Dr Altman observed pain on valgus stress on the medial surface of the right knee, queried a positive patellar tap and fullness of the anterior knee compartment. The right calf circumference measured 37cm and the left measured 36cm. Dr Altman assessed a right knee medial collateral ligament tear and queried a new knee effusion. He referred Mr Akkari for a right knee ultrasound and prescribed one 15mg Mobic capsule daily.[33]
On 22 November 2019, Mr Akkari underwent a right knee ultrasound. Dr Farhana Younis, radiologist, reported to Dr Altman that there was effusion with debris present, likely suggesting haemarthrosis and complex heterogeneous effusion around the proximal medial collateral ligament. The clinical history noted in the report referred to a fall onto the right knee.[34]
[34] ARD at page 136.
On 6 January 2020, Mr Akkari consulted Dr Altman and retracted his previous history. He stated that he had a fall in July 2018. Both of his feet were stuck in soft concrete. He tried to pull himself up. His shoes were stuck. He managed to jump out of the concrete but fell into timber and injured his right knee, lacerated his head and suffered a mild head injury. An
[35] ARD at pages 117-118.
X-ray on 16 November 2019 disclosed no fracture. On examination, Dr Altman observed pain on medial stress of the right knee and tenderness in the medial joint line. He referred to the ultrasound of the right knee. Dr Altman referred Mr Akkari for an ultrasound guided aspiration of the right knee. Dr Altman noted that Mr Akkari wanted to initiate a workers compensation claim and would bring in scans and paperwork.[35]
On 15 January 2020, Mr Akkari underwent an ultrasound guided injection into his right knee joint. Dr Younis reported back to Dr Altman that there was not enough fluid in the right knee joint to aspirate. Marcaine was injected into the right knee joint without complication.[36]
[36] ARD at page 137.
On 5 May 2020, Mr Akkari consulted Dr Assad Malek, general practitioner, of Restwell Street Medical Centre. Dr Malek took a history that Mr Akkari fell at work on 14 June 2018 sustaining right knee, right shoulder and neck injuries. Dr Malek referred Mr Akkari to Ms Rebecca Malek, physiotherapist.[37] Dr Malek issued a certificate of capacity without stating the date of injury and without providing a diagnosis of the work-related injury but identifying it as a fall at work. He certified Mr Akkari as having no current work capacity.[38]
[37] ARD at page 118.
[38] ARD at pages 102-104.
On 8 May 2020, Mr Akkari consulted Dr Malek complaining of headache related to his head injury, neck pain, right-sided chest pain, right shoulder pain and right knee pain. Dr Malek requested Mr Akkari to undergo MRI scans of his cervical spine, right shoulder and right knee.[39]
[39] ARD at pages 118-119.
On 3 June 2020, Mr Akkari consulted Dr Malek complaining of neck pain and headache. Dr Malek prescribed Mobic 15mg capsules.[40] There was a reference to an “MVA” (motor vehicle accident) in the clinical records dated 3 June 2020. The parties made no submissions in respect of the latter mentioned reference and accordingly, I have treated it as irrelevant to the issues for my determination.
[40] ARD at page 120.
On 10 June 2020, Mr Akkari consulted Dr Malek complaining of knee pain, lower back pain and neck pain. This was the first occasion that Dr Malek recorded a complaint of lower back pain. Dr Malek prescribed Mobic 15mg capsules.[41] Dr Malek issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. He certified Mr Akkari as having no current work capacity.[42]
[41] ARD at page 120.
[42] ARD at pages 99-101.
On 14 July 2020, Mr Akkari consulted Dr Malek complaining of lower back pain, neck pain and right knee pain. Dr Malek diagnosed a cervical spine muscle strain and a lumbar spine injury and prescribed Mobic 15mg capsules.[43] Dr Malek issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when he fell at work on 14 June 2018. He certified Mr Akkari as having no current work capacity.[44]
[43] ARD at page 121.
[44] ARD at pages 96-98.
On 30 July 2020, Mr Akkari consulted Dr Malek complaining of right shoulder pain, right knee pain, lower back pain and neck pain. Dr Malek referred Mr Akkari for a right shoulder and right knee ultrasound and a CT scan of his cervical spine.[45] Dr Malek issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. He certified Mr Akkari as having no current work capacity.[46]
[45] ARD at pages 121-122.
[46] ARD at pages 93-95
On 10 August 2020, Mr Akkari underwent a CT scan of his cervical spine, an ultrasound of his right knee and an ultrasound of his right shoulder.[47] In respect of the right knee, Dr Cathy Nicholas, radiologist, reported a small complex heterogeneous effusion around the medial compartment of the knee of similar appearance to the imaging of 10 November 2019. In respect of the right shoulder, Dr Nicholas reported features of biceps tenosynovitis and a partial-thickness tear of the supraspinatus tendon. In respect of the cervical spine, Dr Nicholas reported moderate posterior osteo-disc complex at C3/4, C4/5, C5/6 and C6/7; severe neural exit narrowing on the right at C5/6 affecting the C6 nerve root and at C6/7 affecting the C7 nerve root; mild canal narrowing; a severe dilation of the proximal oesophagus was noted with a gas field oesophagus present at the sternal notch; left-sided CSFs density lesion in the middle cranial fossa, likely an arachnoid cyst.
[47] ARD at pages 44-45.
On 13 August 2020, Mr Akkari consulted Ms Su Min Oh, physiotherapist, of Restwell Street Medical Centre in respect of ongoing neck and right knee pain. On the same date, Mr Akkari consulted Dr Sze Lee general practitioner, of Restwell Street Medical Centre and they discussed the recent radiology. Given the complaint of neck pain with radiation, Dr Lee considered further referral to a neurosurgeon.[48]
[48] ARD at page 122.
On 7 September 2020, Mr Akkari consulted Dr Lee complaining of right shoulder pain and neck pain with radiculopathy. Dr Lee prescribed Mobic 15mg capsules.[49] Dr Lee issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Lee certified Mr Akkari as having no current work capacity.[50]
[49] ARD at pages 123-124.
[50] ARD at pages 90-92.
On 18 September 2020, Mr Akkari underwent a multi-positional MRI scan of his cervical spine by Dr Zane Sherif, radiologist, on the referral of Dr Lee. Dr Sherif reported severe multilevel degenerative change causing severe bilateral foraminal narrowing, likely irritating multiple nerve roots.[51]
[51] ARD at pages 155-156.
On 30 September 2020, Mr Akkari consulted Dr Malek, who again noted a history of a motor vehicle accident, neck pain and bilateral shoulder pain. Dr Malek referred Mr Akkari for ultrasounds of his bilateral shoulders and an MRI scan of his cervical spine. This was the first entry in the clincal records that recorded bilateral shoulder pain.[52]
[52] ARD at page 124.
On 30 September 2020, Dr Lee issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Lee certified Mr Akkari as having no current work capacity.[53]
[53] ARD at pages 87-89.
On 30 September 2020, Mr Akkari underwent an ultrasound of his bilateral shoulders. Dr Mansoor Parker, radiologist, reported to Dr Malek that there were sonographic features of supraspinatus tendon tears bilaterally, partial full-thickness left supraspinatus tendon tears and partial-thickness right supraspinatus tendon tears and features of bursitis bilaterally. Dr Parker suggested that Mr Akkari may benefit from an ultrasound guided injection.[54]
[54] ARD at page 138.
On 15 October 2020, Mr Akkari consulted Dr Malek complaining of ongoing neck and bilateral shoulder pain. Dr Malek referred Mr Akkari for ultrasound guided cortisone injections into both shoulders and prescribed Tramadol 100mg slow release tablets.[55]
[55] ARD at pages 124-125.
On 24 October 2020, Dr Malek reported to Mr Akkari’s lawyers in response to a letter dated 9 September 2020.[56] Dr Malek confirmed that the first date on which Mr Akkari attended Restwell Street Medical Centre was on 22 November 2019 when he consulted Dr Altman. Mr Akkari subsequently commenced consulting Dr Malek from 5 May 2020. Mr Akkari gave Dr Malek a history that he had fallen at work and sustained injuries to his right knee, right shoulder, cervical spine and lumbar spine. On examination, Dr Malek stated that he observed tenderness and reduced movements of the affected areas. He opined that employment was a substantial contributing factor to the injuries. He further opined that Mr Akkari’s prognosis was poor.
[56] ARD at pages 42-43.
On 27 October 2020, Mr Akkari underwent ultrasound guided injections into his right and left subdeltoid bursa by Dr Younis.[57]
[57] ARD at page 139.
On 2 November 2020, Dr Lee issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Lee certified Mr Akkari as having no current work capacity.[58]
[58] ARD at pages 84-86.
On 21 December 2020, Dr Mina Fam, general practitioner, of Restwell Street Medical Centre issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[59]
[59] ARD at pages 79-82.
On 4 January 2021, Mr Akkari underwent a CT scan of his cervical spine. Dr Younis reported to Dr Malek findings of a severe left-sided facet joint arthropathy at C3/4 and a broad-based and right paracentral disc osteophytes complex at C4/5 causing slight significant foraminal narrowing and possible compression of the right exiting C4 nerve root.[60]
[60] ARD at page 142.
On 14 January 2021, Mr Akkari consulted Dr Malek. The reason for consultation was stated to be “pain”. In the actions referred to in the clinical record entry on 14 January 2021, there was reference to a letter created and printed to “AAMI Insurance CTP”.[61] The parties made no submissions in respect of the latter mentioned reference and accordingly, I have treated it as irrelevant to the issues for my determination.
[61] ARD at page 127.
On 14 January 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[62]
[62] ARD at pages 78-80.
On 5 February 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[63]
[63] ARD at pages 75-77.
On 24 February 2021, Mr Akkari consulted Dr Malek complaining of neck and lower back pain, amongst other things. Dr Malek referred Mr Akkari for a CT scan of his thoracic spine.[64]
[64] ARD at page 129.
On 24 February 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[65]
[65] ARD at pages 72-74.
On 11 March 2021, Mr Akkari underwent a CT scan of his thoracic spine by Dr Nicholas. Dr Nicholas reported degenerative changes; diffuse idiopathic skeletal hyperostosis type changes; and a compression fracture at T/12 similar to the previous study.[66]
[66] ARD at page 146.
On 11 March 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[67]
[67] ARD at pages 69-71.
On 26 March 2021, Mr Akkari consulted Dr Malek complaining of neck and lower back pain, amongst other things.[68]
[68] ARD at page 130.
On 26 March 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[69]
[69] ARD at pages 66-68.
On 15 April 2021, Mr Akkari consulted Dr Malek complaining of lower back pain. Dr Malek prescribed Mobic 15mg capsules.[70]
[70] ARD at pages 130-131.
On 17 May 2021, Mr Akkari consulted Dr Malek complaining of neck and lower back pain, amongst other things. Dr Malek referred Mr Akkari to Dr Omprakash Damodaran, neurosurgeon.[71]
[71] ARD at page 131.
On 17 May 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[72]
[72] ARD at pages 63-65.
On 25 May 2021, Mr Akkari consulted Dr Malek complaining of neck pain. Dr Malek referred him to Dr Mark Davies, neurosurgeon.[73] It was unclear whether Mr Akkari consulted Dr Davies. If he did, there were no clinical records or reports from Dr Davies in evidence.
[73] ARD at page 131.
On 29 May 2021, Mr Akkari consulted Dr Malek complaining of lumbar pain.[74]
[74] ARD at page 131.
On 29 May 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[75]
[75] ARD at pages 60-62.
On 16 June 2021, Mr Akkari consulted Dr Malek complaining of neck and lower back pain, amongst other things.[76]
[76] ARD at page 132.
On 6 July 2021, Mr Akkari consulted Dr Malek, who again recorded a history of a motor vehicle accident, multiple injuries, neck pain and tenderness and reduced movements in all directions. Dr Malek diagnosed cervical spine muscle strain and a lumbar spine injury.[77] Again, as the parties made no submissions in respect of the reference to a motor vehicle accident, I have treated it as irrelevant to the issues for my determination.
[77] ARD at pages 132-133.
On 6 July 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[78]
[78] ARD at pages 57-59.

On 17 July 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[79]
[79] ARD at pages 54-56.
On 19 July 2021, Mr Akkari consulted Dr Malek complaining of neck pain and tenderness with reduced movements in all directions. Dr Malek diagnosed a cervical muscle sprain and a lumbar spine injury.[80]
[80] ARD at page 133.
On 26 August 2021, Mr Akkari consulted Dr Malek complaining of lower back pain. On examination, Dr Malek observed tenderness over the lumbar spine and reduced movements in flexion and extension. He recommended that he continue with conservative treatment.[81]
[81] ARD at page 134.
On 26 August 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[82]
[82] ARD at pages 51-53.
On 23 September 2021, Dr Fam issued a certificate of capacity identifying the work-related injuries as a head injury, cervical spine injury, right shoulder injury and right knee injury that occurred when Mr Akkari fell at work on 14 June 2018. Dr Fam certified Mr Akkari as having no current work capacity.[83]
[83] ARD at pages 48-50.
On 24 September 2021, Mr Akkari consulted Dr Malek complaining of neck and lower back pain. On examination, Dr Malek observed tenderness over the lumbar spine and reduced movements in flexion and extension. He recommended that Mr Akkari continue with conservative treatment.[84]
[84] ARD at page 135.
Dr Malek provided a report to Mr Akkari’s lawyers dated 10 March 2022.[85] Dr Malek acknowledged that Mr Akkari was under the care of Dr Noussair at the time of the subject injury. Dr Malek reported that, on 18 June 2018, Dr Noussair certified Mr Akkari as suffering from a head injury, right rib injury and a right shoulder soft tissue injury. Dr Malek reported that, on 12 September 2018, Dr Noussair documented a lumbar injury and that Dr Diwan documented an injury to the right side of the neck, right shoulder and right arm on 16 January 2019. In Dr Altman’s consultation with Mr Akkari, the latter reported a recent right knee injury on a background of a previous right knee injury. Dr Malek confirmed that Mr Akkari had not consulted him prior to the subject injury.
[85] ARD at pages 40-41.
In his report dated 10 March 2022, Dr Malek stated that Mr Akkari was a poor historian, who reported injuries to the right knee, right shoulder, right side of the chest and neck and subsequently, a lumbar spine injury. Dr Malek conceded that he had only recently become aware that Mr Akkari had undergone surgical treatment of the left shoulder more than 12 to 14 years previously.
Dr Malek opined that Mr Akkari sustained injuries to his cervical spine, right shoulder and thoracic spine towards the right side from T1 to T12 and radiating to the right side of the ribs in the subject incident. Dr Malek opined that Mr Akkari did not sustain injuries to his left shoulder or his lumbar spine in the subject incident.
It was clear from Dr Malek’s report dated 10 March 2022 that he had been provided with copies of Dr Robert Breit’s reports to EML’s lawyers. On further questioning and examining Mr Akkari, Dr Malek reported that Mr Akkari had pain all over the thoracic spine down to T12, which made him suspect an injury to the lumbar spine. However, “lately he has no tenderness upon the lower lumbar vertebrae.”[86] Dr Malek disagreed with Dr Breit’s opinion that there was nothing to indicate that Mr Akkari injured his right knee in the incident on 14 June 2018. Dr Malek explained that Mr Akkari stated he had fallen in the mud on timber, landing on his face, right knee, right shoulder and right side of his chest. The fall on the right knee in November 2019 was “a minimal one”[87] and did not cause any more pain than the trauma he sustained on 14 June 2018.
[86] ARD at page 41 at [A4].
[87] ARD at page 41 at [A5].
On 18 July 2022, Mr Akkari underwent a CT scan of his cervical spine. Dr Younis reported to Dr Malek that the CT scan revealed a right paracentral disc osteophytes complex at the C4/5, C5/6 and C6/7 levels causing right-sided neural foraminal narrowing with compression on the right exiting C5/6 and C6/7 nerve roots; bilateral facet joint arthropathy at C2/3; left-sided facet joint arthropathy at C3/4; and right-sided facet joint arthropathy at C7/T1.[88]
[88] Akkari's AALD dated 29 July 2022 at pages 2-3.
Mr Akkari’s Restwell Medical Centre clinical records disclosed about 13 consultations with Ms Rebecca Malek, physiotherapist and two consultations with Ms Su Oh, physiotherapist, between 8 May 2020 and 12 October 2021. Treatment was focused on Mr Akkari’s right knee, cervical spine and right shoulder.
There was no evidence of any attendances by Mr Akkari on Mona Family Practice or Restwell Street Medical Centre between 19 December 2018 and 22 November 2019.

The forensic medical evidence

Dr James Bodel: 15 March 2021

On 15 March 2021, Mr Akkari consulted Dr James Bodel, orthopaedic surgeon, at the request of his lawyers. In evidence, there are two reports by Dr Bodel dated 15 March 2021. I will now refer to the relevant parts of those reports.
Dr Bodel took the following history in respect of Mr Akkari’s fall on 14 June 2018:
“He was doing site preparation work on a building site in the Gosford area. He walked onto the site which was very muddy.
He states that his feet became ‘stuck in mud’ and he lost balance while trying to free himself. He fell forward and landed on timbers. He hit his head and was briefly knocked unconscious. He had to be carried out and was taken to Gosford Hospital near the accident scene.
He had bleeding from around his face in the region of the right eye and a closed head injury. He had pain in both shoulders, neck and lower back, right hip and right knee.
He was kept under observation for about five hours as they were concerned that he had suffered a concussion and he was then discharged home and later came under the care of his local doctor.
He had x-rays and scans taken, and injections into both shoulders. Surgery has not been recommended. He has not been able to return to work.
He has made minimal progress over time. He is continuing with rest, analgesic medication and physiotherapy. He has not been able to return to any form of paid work and he is now 63 years of age.”[89]
[89] ARD at page 30.
Dr Bodel reported Mr Akkari’s past medical history as hypertension controlled by medication. He reported Mr Akkari’s previous claims and subsequent accidents or injuries as “Nil”.[90]
[90] ARD at page 31.
Dr Bodel did not individually record the documentation he had been briefed with and a copy of his letter of instructions was not in evidence. However, he did report that the incident report dated 14 June 2018 confirmed the mechanism of injury. He referred to a thoracic spine CT scan report demonstrating degenerative change but no fractures. He referred to an ultrasound report of the right shoulder, which demonstrated rotator cuff pathology that was consistent with his findings on clinical examination. He referred to a cervical spine CT scan report demonstrating degenerative disc disease. He referred to another right shoulder ultrasound report again demonstrating the rotator cuff pathology. Finally, he referred to certificates of capacity indicating no ongoing work capacity.
Dr Bodel reported that Mr Akkari complained of ongoing headache and neck pain; head-down posture or use of the arms overhead aggravated the pain; pain and stiffness in the region of the right shoulder; lower back pain aggravated by prolonged sitting, bending or lifting; and disturbed sleep. Dr Bodel formed the view that Mr Akkari’s clinical complaints were quite genuine.
On examination, Dr Bodel observed a reduced range of neck flexion, extension and rotation in all directions, being most restricted on rotation to the left; a restricted range of bilateral shoulder movement with impingement and tenderness over the rotator cuff; no clinical sign of radiculopathy in the upper limbs; a good range of lateral bending and rotation of the thoracic spine with tenderness at the lumbosacral junction on the right side and guarding; straight leg raising was 70° on each side and limited by hamstring tightness; no evidence of nerve root irritability; a restricted range of movement in the right knee without retropatellar crepitus, ligamentous laxity or effusion; and no clinical sign of radiculopathy in the lower limbs.
Dr Bodel diagnosed a rotator cuff injury to the right shoulder; a soft tissue aggravation of underlying degenerative change in the cervical spine and lumbar spine by way of an aggravation, acceleration, exacerbation and deterioration of that underlying disease process; and a soft tissue injury to the region of the right knee. All injuries were caused by the accident on 14 June 2018. Dr Bodel opined that employment was the “main substantial contributing factor”[91] by way of aggravation, acceleration, exacerbation or deterioration of these underlying disease processes.
[91] ARD at page 33 at [6].
In his shorter report dated 15 March 2021, Dr Bodel assessed Mr Akkari’s whole person impairment at 26% (8% for the right upper extremity; 7% for the cervical spine; 6% for the left upper extremity; 5% for the lumbar spine; and 4% for the right lower extremity). Dr Bodel opined that, as there was no indication clinically of any pre-existing abnormality or condition prior to the work-related incident on 14 June 2018, there was no basis for a deduction for pre-existing impairment.

Dr Robert Breit: 28 June 2021

On 21 June 2021, Mr Akkari consulted Dr Robert Breit, orthopaedic surgeon, at the request of AGPL’s lawyers. In evidence, there is a report by Dr Breit dated 28 June 2022. I will now refer to the relevant parts of those reports.
Dr Breit listed the documents he had been briefed with.[92]
[92] Reply at page 1.
Dr Breit took the following history in respect of Mr Akkari’s fall on 14 June 2018:
“On 14 June 2018 he had to inspect some work, it had been raining and there was a larger amount of mud than expected. He was traversing the mud, sank into it and could not move. He said that he was panicking, trying to get out and as a result he fell forward hitting his head on some woodwork on the right side. He is not sure if he was knocked out but does not recall the events from that time and he was taken to Gosford Hospital where he was assessed, observed, and then discharged.
I am told that he had pain in the right side of the neck and head, the right ribs and the right knee were swollen as well as complaining of neck pain and initially some visual disturbance.
Following hospital discharge he saw his GP, had some further investigations, and was told there was a tear in the right shoulder. He was referred for some physiotherapy which was undertaken for the right shoulder and the right knee. It lasted six to seven months. He apparently had steroid injections to both the shoulder and the knee feeling that they were more helpful than the physiotherapy.
There was a referral to Dr Leonard Kuo, an orthopaedic surgeon, who felt the problem was largely arising from the cervical spine and hence he fell under the care of Dr Diwan who arranged for some further investigations and I am told wanted to operate on the neck but this man refused. His GP did however organise some right sided neck injections which were helpful. He has not worked since the date of injury.
There is also a complaint of dysphagia which he alleges was said to be due to his neck by medical practitioners.”[93]
[93] Reply page 2.
Dr Breit reported that Mr Akkari complained of pain in the right side of the neck associated with headaches, radiating into the trapezius and the scapular on movement of the shoulder; an inability to lie on the right side in bed at night resulting in sleep deprivation; difficulties performing overhead tasks; occasional sensation of pins and needles in the right triceps area; swelling of the right knee on using stairs; and one recent episode of the right knee giving way. Dr Breit noted that Mr Akkari stated his left shoulder was fine and that he had undergone surgery by Dr Kirsch to repair the rotator cuff seven to eight years previously. In response to a question posed by Dr Breit about whether he had any back pain, Dr Breit reported that Mr Akkari’s response was, “I don’t have a problem”.[94]
[94] Reply at page 3.
Dr Breit reported that any injury subsequent to 14 June 2018 were denied. Past medical history referred to the recent development of an umbilical hernia that may require surgery. In respect of previous compensation claims, Dr Breit reported that Mr Akkari’s left shoulder rotator cuff repair “was under compensation”.[95]
[95] Reply page 3.
Like Dr Bodel, Dr Breit did not have any medical imaging before him at the time of his consultation with Mr Akkari. However, Mr Akkari produced reports to Dr Breit in respect of the right shoulder ultrasound dated 25 June 2018; the CT scan of the thoracic spine dated 13 September 2018; a thyroid ultrasound; the right knee ultrasound dated 10 August 2020; a right shoulder ultrasound; a CT scan of the cervical spine; and the CT scan of the thoracic spine dated 11 March 2021.
Dr Breit diagnosed Mr Akkari with cervical spondylosis, right rotator cuff impingement and right knee arthritis. Dr Breit opined that the cervical spondylosis was long-standing, as was the right knee arthritis. He noted that earlier investigations had not been made available. He opined that there had been no injury to the lumbar spine or to the left shoulder. In respect of the right shoulder, Dr Breit noted:
“Although the right shoulder was said to be non-symptomatic previously, we know that there is a 40% incidence of rotator cuff tears on the opposite side when a torn cuff is diagnosed (left side).”[96]
[96] Reply at page 7 at [3].
Dr Breit observed:
“By and large this gentleman presents in a straightforward manner although he does complain of invalidism and the dysphasia.”[97]
[97] Reply at page 7 at [6].
Dr Breit opined that, given the mechanism of injury, it was reasonable to indicate that the problems with Mr Akkari’s neck, right shoulder and right knee were caused by the fall at work on 14 June 2018.
Dr Breit assessed Mr Akkari’s whole person impairment at 13% (7% for the cervical spine; 6% for the right upper extremity; and 0% for the right lower extremity). There was no deductible quantum in respect of the assessment of the cervical spine and right upper extremity.
In response to a request to discuss any differences between his assessment and the opinions expressed by Dr Bodel in the latter’s report dated 15 March 2021, Dr Breit disagreed that there had been any injury to Mr Akkari’s back and/or left shoulder and explained:
“Firstly, this man denies any injury to his back. Secondly as I have indicated in the photographs there is full extension of the right knee with Dr Bodel claiming 5° fixed flexion deformity that results in the associated impairment. As I have indicated above the left shoulder relates to a previous injury/surgery and there was a better range of movement than noted by Dr Bodel who did not deduct any quantum for the previous surgery which in its own rights is at odds with the available information.”[98]
[98] Reply at page 8.

Dr Robert Breit: 2 August 2021

Dr Breit produced a supplementary report dated 2 August 2021 at the request of AGPL’s lawyers.[99]
[99] Reply at pages 9-10.
Dr Breit listed the further documentation he had been briefed with.[100]
[100] Reply at page 9.
In response to a question put to Dr Breit about his assessment of Mr Akkari’s cervical spine, he explained that Mr Akkari had a long-standing cervical spondylosis that was aggravated by the fall on 14 June 2018. In respect of his opinion that there was no deductible quantum, he stated:
“The presence of cervical spondylosis does not equal symptomatology. There is no evidence that he had prior cervical problems and I would consider there are no grounds for a deduction, the simple presence of degeneration does not automatically indicate a deductible quantum.”[101]
[101] Reply at page 10 at [1].
In response to a question put to Dr Breit about his assessment of Mr Akkari’s right knee, Dr Breit stated:
“I indicated he has long standing arthritis because he has neutral alignment to his knees which indicates a medial compartment degeneration clinically and he is obese which is a significant risk factor. Furthermore his ultrasound reports an effusion as well as medial degenerative changes. There was no other objective information and there were no significant clinical findings so that all I can indicate is that he sustained a soft tissue injury to the knee. I did not indicate that it had resolved but on the basis of the findings there was no assessable impairment. He also claimed ongoing issues with the right knee as indicated under complaints so that I cannot indicate that it has resolved. I should also point out that not only is there a lack of objective information but there was also no historical General Practice documentation available.”[102]
[102] Reply at page 10 at [2].

Dr Robert Breit: 11 August 2021

Dr Breit produced a further supplementary report dated 11 August 2021 at the request of AGPL’s lawyers[103]
[103] Reply at pages 12-14.
Dr Breit listed the further documentation he had been briefed with.[104] Included in those documents were Mr Akkari’s clinical records from Mona Family Practice and Restwell Street Medical Centre.
[104] Reply at page 12.
Dr Breit referred to Mr Akkari’s clinical records from Mona Family Practice and noted the complaints of facial abrasions, painful right shoulder and pain down the right arm and pain in the right lower ribs. He noted that there was no mention of any other areas of pain. He also noted the later mention of some thoracic compaction fractures, which were said to be old following a bone scan dated 15 October 2018 that demonstrated some degenerative changes in the cervical spine, wrists and hands but made no mention of a fracture in the spine.
Dr Breit referred to Mr Akkari’s clinical records from Restwell Street Medical Centre and noted that:
“The notes from Restwell Street Medical Centre start on 22 November 2019 with a complaint of a fall over broken tiles while taking out rubbish, dropped on right knee, right knee swelling. Had x-ray on 16 November 2019, no fracture or bony abnormality. He is seen in that practice again on 6 January where he now retracts his previous claim regarding the commencement of the knee pain and has attributed it to an episode in July 2018 that apparently indicated that his feet were stuck in soft concrete, not mud as was indicated to me and to the other General Practice.”[105]
[105] Reply at page 13.
As a result of reviewing the clinical records referred to above, Dr Breit resiled from his initial opinion that Mr Akkari had injured his right knee on 14 June 2018 and explained:
“… there is nothing to indicate that he injured the right knee. If one reviews the Mona Family Practice notes after the injury there are persistent complaints of shoulder pain. There is no mention in the initial GP consultation or thereafter at Mona Family Practice of any injury to the knee. There is a subsequent distinct history of a separate injury which he is now attempting to claim was related to the June 2018 fall in retrospect. The evidence is to the contrary.”[106]
[106] Reply at page 13 at [1].
Dr Breit further opined that there was no need for any treatment in respect of the right knee as a result of the fall on 14 June 2018. Any treatment that is required would relate to the subsequent episode noted by Dr Altman on 22 November 2019.

Dr James Bodel: 14 April 2022

Dr Bodel produced a supplementary report dated 14 April 2022 at the request of Mr Akkari’s lawyers.[107]
[107] ARD at pages 25-28.
Dr Bodel was, at least, provided with Dr Breit’s further supplementary report dated 11 August 2021 and Mr Akkari’s statement dated 18 October 2021.
Dr Bodel stated that the history and list of injuries he had recorded in his initial report were consistent with Mr Akkari’s statement dated 18 October 2021.
Having reviewed the further documents provided to him, Dr Bodel saw no reason to remove Mr Akkari’s lumbar spine, right knee and left shoulder from the list of injuries caused by the fall on 14 June 2018.
Dr Bodel diagnosed the injury to Mr Akkari’s left shoulder as an aggravation of clinically evident rotator cuff pathology. He acknowledged that he had not been provided with any
X-rays or other medical imaging to confirm that pathology diagnosis. However, he was satisfied that his clinical findings confirmed the presence of rotator cuff pathology in both shoulders causally related to the injury at work on 14 June 2018.
Dr Bodel was not aware of any investigations of the left shoulder and based his diagnosis on the clinical presentation at the time of his assessment. Dr Bodel accepted Mr Akkari’s statement that he had recovered from his left shoulder surgery in 2008 and that his left shoulder was normal. Although functionally it may have been normal, it was not normal pathology because he did have the rotator cuff repair in 2008. The fall on 14 June 2018 caused an aggravation, acceleration, exacerbation and deterioration to the disease process in the left shoulder.
Dr Bodel conceded that Dr Malek did not list the left shoulder in his certificates of capacity and therefore, it may not have been a significant complaint at the time of the fall. If that were the case, then Dr Breit’s interpretation may well be correct, namely, that there was no contemporaneous documentation to support injury to the left shoulder.
In respect of the claimed injury to the lumbar spine, Dr Bodel stated that Mr Akkari indicated to him that he had injured his back in the fall. The mechanism of the injury could have caused an injury to the back.
In respect of the claimed injury to the right knee, Dr Bodel noted that Dr Malek had included the right knee injury as a primary frank injury and that there may have been further aggravation at later stages, including an injury when he fell over a chipped broken tile. The right knee injury appeared to have been listed in all the certificates of capacity provided by Dr Malek. However, Dr Bodel noted that Mr Akkari first attended Dr Malek on 5 May 2020. Again, he was dependent on Mr Akkari’s history as to the injury to the right knee to include it as a rateable impairment.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

AGPL’s submissions

I will now refer to AGPL’s principal submissions.
Mr Akkari’s evidence was that in addition to injuries sustained to his right eye and head in the fall on 14 June 2018, he sustained injuries to his shoulders, neck, lower back, right hip and right knee and that the pain in respect of those injuries was immediate and progressively worsened. He also experienced pain radiating into both arms. There were no clinical records from Gosford Hospital in evidence to assist the Commission in respect of Mr Akkari’s initial reporting of the injuries sustained. However, there was a certificate of capacity issued by a registrar of Gosford Hospital dated 14 June 2018 noting the diagnosis of a work related mild head injury on 14 June 2018. There was no information in the certificate relating to the cause of the injury. There was no reference to any other body parts being injured.
At Mr Akkari’s consultation with Dr Noussair on 18 June 2018, he made no reference to symptoms in his lumbar spine, left shoulder or right knee, despite his evidence that he had felt immediate pain following the fall in those parts of his body. Dr Noussair issued Mr Akkari with a certificate of capacity that referred only to a work-related mild head injury and soft tissue injuries to the right ribs and right shoulder.
On 9 July 2018, Dr Noussair issued Mr Akkari with a certificate of capacity that described the work related injury as a right subdeltoid bursitis.
At Mr Akkari’s consultation with Dr Altman on 22 November 2019, he reported a fall 10 days previously when he tripped over a broken tile whilst taking out the rubbish. He reported that he had dropped on his right knee. Mr Akkari did not inform Dr Altman that he had sustained an injury to his right knee at work on 14 June 2018.
There was nothing in the medical records between 14 June 2018 and the date of the fall on his right knee in early November 2019 that Mr Akkari had experienced problems with his right knee.
It was quite telling that, at his consultation with Dr Altman on 6 January 2020, Mr Akkari retracted the history he had previously provided to Dr Altman and stated that he had sustained a fall in July 2018 when both feet were stuck in soft concrete. He tried to pull himself up but his shoes got stuck. He managed to jump out of the concrete but fell into timber injuring his right knee, lacerating his head and sustaining a mild head injury.
Mr Akkari’s evidence was that he had sustained a frank injury to his right knee on 14 June 2018. However, there was no evidence in the medical records of the medical practitioners that Mr Akkari was seeing at the time that he had reported an injury to his right knee. There was no evidence in the medical records that Mr Akkari received any treatment to his right knee until November 2019.
It was not until Mr Akkari’s fall in early November 2019 that he sustained any injury to his right knee. He underwent an X-ray on or about 16 November 2019. On 22 November 2019, Mr Akkari underwent an ultrasound of his right knee. On 15 January 2020, he underwent an ultrasound guided injection into the right knee joint.
The first report of any treatment to Mr Akkari’s left shoulder was on 30 September 2020 when he underwent an ultrasound of both shoulders. On 27 October 2020, he underwent an ultrasound guided injection into the left shoulder subdeltoid bursa.
There is no contemporaneous history that Mr Akkari sustained any frank injury or condition to the left shoulder, the right knee or the lumbar spine arising out of the fall on 14 June 2018. It was conceded that the entry in the Mona Family Practice clinical records dated 12 September 2018 recorded that Mr Akkari complained of backache and that on examination, Dr Noussair observed tenderness in the lumbar and mid-thoracic spines and a decreased range of motion in the back resulting in a referral for a CT scan of the lumbar spine and thoracic spine. There was no history recorded in respect of Mr Akkari’s complaint of backache. There was nothing about it in Mr Akkari’s statement. The causal nexus between the fall and the claimed injury to his back is simply not there.
On 30 August 2018, Mr Akkari made no complaints of symptoms in the left shoulder, lumbar spine or right knee as a result of the fall on 14 June 2018 to Dr Kuo, his treating orthopaedic surgeon. He only complained of right sided pain, with neck and right shoulder symptoms.
On 16 January 2019, Mr Akkari made no complaints of symptoms in the left shoulder, lumbar spine or right knee as a result of the fall on 14 June 2018 to Dr Diwan, his treating spinal surgeon. He only complained of right-sided neck pain, right shoulder pain and upper arm pain.
Mr Akkari’s version of events, on which Dr Bodel relied, was not founded in the factual history provided by the treating medical practitioners. Dr Bodel accepted the version of events provided to him by Mr Akkari, which was almost verbatim to that which appeared in Mr Akkari’s statement. In his supplementary report dated 14 April 2022, Dr Bodel conceded that he was dependent on Mr Akkari’s history as to the injury. Accordingly, the Commission would not be persuaded to accept Dr Bodel’s opinion in respect of causation. It was not clear from Dr Bodel’s reports whether he had access to the clinical records of Mr Akkari’s general practitioners.
AGPL relied on the reports of Dr Breit. Dr Breit initially accepted that Mr Akkari had sustained injuries to his right shoulder, cervical spine and right knee as a result of the fall on 14 June 2018. However, after being provided with copies of Mr Akkari’s Mona Family Practice and Restwell Street Medical Centre clinical records, he altered his opinion in respect of the right knee. He referred to the absence of any complaint of right knee injury or symptoms in the Mona Family Practice clinical records. He referred to the subsequent fall onto the right knee reported to Dr Altman on 22 November 2019. Dr Breit concluded that there was nothing to indicate that Mr Akkari injured his right knee on 14 June 2018.
Dr Breit has been provided with all of the evidence and in particular, the general practitioner clinical records. On the other hand, it is not clear what records Dr Bodel has relied on to express his opinion, apart from Mr Akkari’s statement. In such circumstances, the Commission would prefer the evidence of Dr Breit whose opinion was founded on the clinical records. The clinical records supported AGPL’s submission that Mr Akkari did not sustain injuries to his left shoulder, lumbar spine or right knee on 14 June 2018.
There is no evidence that Mr Akkari sustained frank injuries or some type of aggravation of underlying disease processes to his lumbar spine, left shoulder or right knee. Further, in respect of Mr Akkari’s right knee, the chain of causation was broken when he sustained a further fall when he tripped on a tile in November 2019.
Accordingly, the only body systems to remit to the President of the Commission for referral to a Medical Assessor for the assessment of whole person impairment are the right upper extremity (right shoulder) and the cervical spine.

Mr Akkari’s submissions

I will now refer to Mr Akkari’s principal submissions.
Caution must be taken when relying on the bald acceptance of what appears in clinical records in respect of the acceptance of injury or otherwise, particularly where the busy treating doctor’s initial treatment is focussed on a significant injury. In such circumstances, one often does not see a complete recording of a patient’s complaints of symptoms or of injury.
In this case, there are threads of material which, when analysed and weighed together, would satisfy the Commission that Mr Akkari sustained the accepted injuries to the cervical spine and right shoulder and also those injuries that are disputed.
It is clear that Mr Akkari had problems with his left shoulder prior to the subject incident on 14 June 2018. It was conceded that in respect of the left shoulder, proof in attributing causation to the subject incident was an issue. The question for the Commission’s determination is whether, in the fall on 14 June 2018, there was an aggravation of the pre-existing left shoulder condition that Dr Bodel identified.
In his report dated 28 June 2021, Dr Breit accepted that Mr Akkari presented in a straight forward manner. After having taken a history of the episode of injury, Dr Breit performed a detailed examination of Mr Akkari and accepted that, given the mechanism of injury, it was reasonable to indicate problems with the neck, right shoulder and right knee but dismissed any relationship of the lumbar spine and left shoulder to the incident.
The fall on 14 June 2018 was a significant one. It involved a heavy fall to the ground on Mr Akkari’s right side. Mr Akkari’s evidence was that, after his right foot aggressively flew out of his shoe that was stuck in the mud, he lost his balance and fell face forward to the ground heavily hitting a nearby block of timber. He hit his head and was briefly knocked unconscious. Mr Akkari provided a similar history of the fall to Dr Noussair on 18 June 2018. There was force involved in trying to pull himself out of the mud. He reported falling on his face, sustaining facial abrasions, suffering from a painful right shoulder radiating down the right arm and suffering from painful right lower ribs.
On 12 September 2018, Mr Akkari complained to Dr Noussair of back ache. On examination, Dr Noussair observed tenderness in the lumbar spine, tenderness in the mid thoracic spine and a decreased range of motion in Mr Akkari’s back. Dr Noussair referred Mr Akkari for a CT scan of the thoracic spine and the lumbar spine.
The AGPL incident report dated 14 June 2018 was unchallenged. It identified the worksite where Mr Akkari’s fall occurred. It described how the injury occurred, which was consistent with Mr Akkari’s evidence. It reported Mr Akkari’s injuries as a head injury, right shoulder injury, pain and right leg pain. It confirmed that Mr Akkari attended Gosford Hospital.
In his report dated 10 March 2022, Dr Malek observed injury to the thoracic spine mainly towards the right side from T1 to T12. He also observed that Mr Akkari had pain all over the thoracic spine down to T12, which made one suspect an injury to the lumbar spine. Dr Malek opined that Mr Akkari had sustained injury to the cervical spine, right shoulder, right knee and lumbar spine. Dr Malek provided a backbone to the opinion of Dr Bodel.
There were references to pain through the right lower rib cage consistent with a low thoracic and high lumbar back injury in Mr Akkari’s initial consultation with Dr Noussair on 18 June 2018. Shortly thereafter, there were complaints in the clinical notes of lumbar and mid-thoracic pain resulting in referral for investigation.
It was clear from the medical material that the cervical spine was the focus of treatment and this was recognised by Dr Breit. That explains the absence of references to symptoms in the left shoulder, lumbar spine or right knee in the reports of Dr Kuo and Dr Diwan, who were there to treat what was referred to them, namely, the cervical spine and right shoulder.
In his report dated 28 June 2021, Dr Breit candidly conceded that the nature of the injury was such that Mr Akkari’s right knee would have been impacted. There was pathology in the right knee. Dr Breit was then confronted with a series of letters from the lawyers acting for EML requesting an addendum to his initial report. In his report dated 2 August 2021, in response to a question put in respect of Mr Akkari’s right knee, Dr Breit reported that there was long-standing arthritis and the ultrasound reported an effusion as well as medial degenerative changes. As there was no other objective information and because there were no significant clinical findings. All Dr Breit was able to indicate was that Mr Akkari had sustained a soft tissue injury to his right knee. He did not indicate that it had resolved but did indicate that on the basis of his findings there was no assessable impairment.
In his report dated 11 August 2021, Dr Breit strayed into a fact-finding process which is a matter for the Commission. Dr Breit’s fact finding process in respect of injury was without regard to the mechanical consequences of the injury.
Mr Akkari relied on the reports of Dr Bodel. In Dr Bodel’s report dated 15 March 2022, it was conceded that he made no determination in respect of the left shoulder.
In his report dated 14 April 2022, Dr Bodel emphasised the nature of the mechanism of injury and the causative process that would follow.
The opinions expressed by Dr Bodel in his report dated 14 April 2022, the opinions expressed by Dr Breit in his reports dated 28 June 2021 and 2 August 2021, the reports of Dr Malek dated 24 October 2020 and 10 March 2022 together with Mr Akkari’s statement supported the case that Mr Akkari sustained injuries to his cervical spine, right shoulder, right knee and lumbar spine. Accordingly, those body systems should be referred to a Medical Assessor for the assessment of whole person impairment. Whilst there was an assertion of injury to the left shoulder, it was not abandoned but there were no further submissions to be made in respect of it.

FINDINGS AND REASONS

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.
The onus of establishing injury falls on Mr Akkari and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[108] (Ireland) and Nguyen v Cosmopolitan Homes[109] (Nguyen).
[108] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[109] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[110] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[111] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[110] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[111] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
As Parker ADP observed in Le Twins Pty Ltd v Luo,[112] most conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.
[112] Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52 at [71].
In order to establish that a “personal injury” has been suffered within the meaning of section 4(a) of the 1987 Act, Mr Akkari must establish, on the balance of probabilities, that there has been a definite or distinct “physiological change” or “physiological disturbance” in his left shoulder for the worse which, if not sudden, is at least, identifiable: Kennedy Cleaning Services Pty Ltd v Petkoska[113] (Kennedy) and Military Rehabilitation and Compensation Commission v May[114] (May). The word “injury” refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd[115] (Lyons). While pain may be indicative of such physiological change, it is not itself a “personal injury”.
[113] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45.
[114] Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
[115] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496.
Castro v State Transit Authority[116] (Castro) provides a useful review of the authorities and makes it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
[116] Castro v State Transit Authority [2000] NSWCC 12; (2000) 19 NSWCCR 496.
Section 4(b)(ii) of the 1987 Act states that injury includes a disease injury, which means 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. The word “main” in the phrase “main contributing factor” means “chief” or “principal”.[117]
[117] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].

Accordingly, I find that Mr Akkari did not suffer an injury to his left shoulder arising out of or in the course of his employment with the AGPL on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the 1987 Act.

The lumbar spine

Mr Akkari’s evidence was that he had also sustained an injury to his lumbar spine in the course of his employment on 14 June 2018. He immediately felt pain in his lower back (lumbar spine) after the fall and it progressively worsened.
Again, I found that Mr Akkari’s evidentiary statement was lacking in detail in respect of the alleged injury to his lumbar spine. He stated that he experienced a painful sensation in his lower back as a consequence of jarring his feet in the mud that led to him being in an awkward position and subsequently falling. He did not provide the latter explanation to any of the medical practitioners he consulted. It first appeared in his evidentiary statement some 3.25 years after the work-related incident. He gave no evidence of any other type of treatment to his lumbar spine.
Mr Akkari’s evidence was that he underwent physiotherapy for about six months, once or twice per week. He did not state the body parts that underwent that treatment. He stated that he underwent Thai massages once or twice per week to assist in relieving the pain and tension in his head, shoulders and neck. He made no reference to his lower back.
Mr Akkari’s evidence in respect of his lumbar spine injury was unconvincing.
The AGPL incident report dated 14 June 2018 made no reference to any symptoms in the lumbar spine.
The certificate of capacity issued by Dr Yan, the Gosford Hospital registrar, on 14 June 2018 made no reference to any symptoms in the lumbar spine.
On 18 June 2018, Dr Noussair made no reference to any symptoms in Mr Akkari’s lumbar spine as a result of the fall on 14 June 2018.
On 30 August 2018, Dr Kuo reported to Dr Noussair on his consultation with Mr Akkari. There was no reference in the report to any symptoms in the lumbar spine. However, it was apparent that Dr Kuo was focused on the treatment of Mr Akkari’s cervical spine and right shoulder symptoms.
On 12 September 2018, Mr Akkari consulted Dr Noussair in respect of a recurrent urinary tract infection and complained of back pain for the first time. On examination, Dr Noussair observed tenderness in the lumbar spine and the mid-thoracic spine with a decreased range of motion. There were no neurological signs. There was no reference to any injury to the lumbar spine. She referred Mr Akkari for a CT scan of his lumbar spine and thoracic spine. Whilst there was a CT scan report in respect of the cervical spine dated 13 September 2018 in evidence, there was no CT scan report in respect of the lumbar spine in evidence. The thoracic spine CT scan report concluded that the advanced pathology between T2 and T7 would be contributing to Mr Akkari’s back pain.
On 16 January 2019, Dr Diwan reported to Dr Noussair on his consultation with Mr Akkari. There was no reference in the report to any symptoms in the lumbar spine. However, it was apparent that Dr Diwan was focused on the treatment of Mr Akkari’s cervical spine and right shoulder symptoms.
On 6 January 2020, Dr Altman recorded the mechanism of the fall on 14 June 2018 and recorded the injuries sustained in the fall as an injury to the right knee, a laceration to the head and a mild head injury. There was no reference to any symptoms in the lumbar spine.
On 5 May 2020, Mr Akkari first consulted Dr Malek, who took a history that Mr Akkari fell at work on 14 June 2018 sustaining right knee, right shoulder and neck injuries. There was no reference to any symptoms in the lumbar spine.
On 10 June 2020, Mr Akkari consulted Dr Malek complaining of knee pain, lower back pain and neck pain. This was the first occasion that Dr Malek recorded a complaint of lumbar spine pain.
Thereafter, there were complaints of lumbar spine pain by Mr Akkari recorded in the Restwell Street Medical Centre clinical records on 14 July 2020, 30 July 2020, 24 February 2021, 26 March 2021, 15 April 2021, 17 May 2021, 29 May 2021, 16 June 2021, 19 July 2021, 26 August 2021 and 24 September 2021.
However, none of the certificates of capacity issued by the Restwell Street Medical Centre in evidence referred to any symptoms in Mr Akkari’s lumbar spine or included it as an injury in respect of the fall on 14 June 2018.
There was no evidence before the Commission that Mr Akkari received any treatment to his lumbar spine.
There was no medical imaging in respect of the lumbar spine in evidence.
There was no contemporaneous evidence that Mr Akkari sustained an injury to his lumbar spine in the fall on 14 June 2018.
On 24 October 2020, Dr Malek reported to Mr Akkari’s lawyers advising that he had taken a history that Mr Akkari had fallen at work and sustained injuries to his right knee, right shoulder, cervical spine and lumbar spine. Dr Malek stated that he observed tenderness and reduced movements of the affected areas. He opined that employment was a substantial contributing factor to the injuries.
On 15 March 2021, Dr Bodel diagnosed Mr Akkari as having suffered a rotator cuff injury to the right shoulder; a soft tissue aggravation of underlying degenerative change in the cervical spine and lumbar spine by way of an aggravation, acceleration, exacerbation and deterioration of that underlying disease process; and a soft tissue injury to the region of the right knee. He opined that all injuries were caused by the accident on 14 June 2018.
In his report dated 28 June 2021, Dr Breit noted that Mr Akkari told him that he did not have a problem with his back. Dr Breit did not report any complaint of back pain at his consultation with Mr Akkari. Dr Breit opined that there had been no injury to the lumbar spine.
On 10 March 2022, Dr Malek reported to Mr Akkari’s lawyers that Mr Akkari had sustained injuries to his right knee, right shoulder, right side of the chest and neck and that he had subsequently sustained, a lumbar spine injury. There was no explanation as to where and how Mr Akkari had “subsequently” sustained a lumbar spine injury. Dr Malek opined that Mr Akkari had sustained an injury to his thoracic spine, mainly towards the right side from T1 to T12 radiating into the right side of his ribs but not to his lumbar spine. Mr Akkari did not plead an injury to his thoracic spine. Dr Malek agreed with Dr Breit that Mr Akkari had pain over the thoracic spine down to T12, which made one suspect an injury to the lumbar spine. However, he stated that Mr Akkari had no tenderness in the lower lumbar vertebrae. I found Dr Malek’s opinion in respect of the lumbar spine somewhat confusing and inconsistent. It was inconsistent with his report to Mr Akkari’s lawyers dated 24 October 2020. Accordingly, I give Dr Malek’s evidence in respect of the lumbar spine little weight.
In his supplementary report dated 14 April 2022, Dr Bodel stated that Mr Akkari indicated to him that he had injured his back in the fall. He opined that the mechanism of the injury could have caused an injury to the back.
In respect of Mr Akkari’s allegation of injury to the lumbar spine on 14 June 2018, I prefer the opinion of Dr Breit over the opinion of Dr Bodel and Dr Malek. I found Dr Bodel’s opinion in respect of the fall on 14 June 2018 being causative of an injury or condition to Mr Akkari’s lumbar spine unconvincing and of little probative value for the reasons stated below.
Dr Bodel failed to adequately expose his reasoning in respect of the fall being causative of an injury to Mr Akkari’s lumbar spine. He failed to explain how the mechanism of the fall could have caused an injury to Mr Akkari’s lumbar spine. He merely stated that Mr Akkari indicated to him that he had injured his back in the fall and that the mechanism of the injury “could” have caused an injury to the back. Dr Bodel did not refer to it being a consequence of Mr Akkari jarring his feet in the mud, causing him to be in an awkward position and subsequently, fall.
Considering the matters referred to above, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Akkari has established that there was a definite or distinct physiological change or disturbance in his lumbar spine in the form of a soft tissue injury or other condition arising out of or in the course of his employment with AGPL on 14 June 2018. There was no evidence of a sudden identifiable pathological change in the lumbar spine. There was no evidence to support, on the balance of probabilities, an aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease process in Mr Akkari’s lumbar spine, to which employment was the main contributing factor.
Accordingly, I find that Mr Akkari did not suffer an injury to his lumbar spine arising out of or in the course of his employment with AGPL on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the 1987 Act.

The right knee

Mr Akkari’s evidence was that he had also sustained an injury to his right knee as a result of the mechanism of his fall on 14 June 2018. In his evidentiary statement dated 18 October 2021, he stated that he believed that the pain in his right knee was caused by the work-related fall because he landed on his right knee. However, Dr Noussair, Dr Kuo, Dr Diwan, Dr Malek, Dr Bodel and Dr Breit did not record a history of Mr Akkari having fallen on his right knee in the fall on 14 June 2018. The preponderance of the medical histories recorded by the medical practitioners referred to Mr Akkari falling on his face and side.
The history of falling on the right knee on 14 June 2018 only emerged in the evidence after Mr Akkari retracted the history he gave to Dr Altman on 22 November 2019 as having dropped on his right knee after tripping over a broken tile whilst taking out the rubbish at home. Mr Akkari initially informed Dr Altman that, after the fall at home, he experienced right knee swelling and underwent an X-ray on 16 November 2019 that demonstrated no fracture or focal bony abnormality. There was no radiologist’s report in respect of the X-ray of Mr Akkari’s right knee in evidence. Mr Akkari did not identify the general practitioner he consulted after the fall at home. Such general practitioner would have referred him for the
X-ray. Significantly, Mr Akkari did not inform Dr Altman that he had sustained an injury to his right knee at work on 14 June 2018 at the consultation on 22 November 2019.
Mr Akkari’s evidence was that he “believed” the reason he fell at home in November 2019 was due to the pain and instability in his right knee caused by the work-related fall on 14 June 2018. Such proposition was not supported by any of the medical evidence and was inconsistent with the description he provided to Dr Altman of dropping on his right knee after tripping over a broken tile whilst taking out the rubbish at home. I am not satisfied that the fall at home in November 2019 was as a result of pain and instability in the knee caused by the alleged frank injury to the right knee on 14 June 2018. I find that it was caused by Mr Akkari tripping over a broken tile whilst taking out the rubbish at home.
On 22 November 2019, Dr Altman referred Mr Akkari for an ultrasound of the right knee on the same day. The clinical history noted in the report referred to a fall onto the right knee, which was consistent with the initial history Mr Akkari provided to Dr Altman.
On 6 January 2020, Dr Altman recorded the mechanism of the fall on 14 June 2018 and recorded the injuries sustained in the fall as an injury to the right knee, a laceration to the head and a mild head injury, after Mr Akkari had retracted the history he had provided in consultation on 22 November 2019.
Following Mr Akkari’s retraction of the history he gave to Dr Altman on 22 November 2019 and his initial consultation with Dr Malek on 5 May 2020, the Restwell Street Medical Centre issued certificates of capacity that included Mr Akkari’s right knee in the work-related fall on 14 June 2018. Even then, Dr Malek’s first certificate of capacity dated 5 May 2020 made no reference to any injuries on 14 June 2018, despite the clinical records referring to a right knee injury. It was only in the certificate of capacity dated 10 June 2020 that the right knee was first included as having been injured on 14 June 2018.
Mr Akkari stated that he had experienced pain and discomfort in his right knee after the fall at work on 14 June 2018 but not before. He stated that he had undergone treatment for his right knee prior to the fall at home in November 2019. There was no corroboration of the latter statement in the medical records.
There were no entries in the Mona Family Practice or Restwell Street Medical Centre clinical records that indicated that Mr Akkari had undergone any investigations or treatment in respect of his right knee prior to the alleged X-ray on 16 November 2019 and his first consultation with Dr Altman on 22 November 2019. Mr Touma, physiotherapist, only treated Mr Akkari’s right shoulder in 2018.
Mr Akkari’s Restwell Medical Centre clinical records disclosed about 13 consultations with Ms Malek, physiotherapist and two consultations with Ms Oh, physiotherapist between 8 May 2020 and 12 October 2021. Such treatment was focused on Mr Akkari’s right knee, cervical spine and right shoulder. The medical evidence disclosed that, contrary to Mr Akkari’s assertion, he did not receive treatment to his right knee prior to November 2019. Treatment by way of physiotherapy only commenced on 8 May 2020.
The AGPL incident report dated 14 June 2018 made no reference to any injury to the right knee but did refer to pain in the right leg. Whilst I agree with Mr Akkari’s submission that the incident report was unchallenged, it was only one part of the evidence and was far from conclusive that Mr Akkari had sustained an injury to his right knee on 14 June 2018. The medical evidence and the weight given to Mr Akkari’s evidence, given that I found it unreliable, also needed to be considered.
The certificate of capacity issued by Dr Yan, the Gosford Hospital registrar, on 14 June 2018 made no reference to any symptoms in the right knee.
There were no complaints of right knee symptoms by Mr Akkari recorded in the Mona Family Practice clinical records.
On 30 August 2018, Dr Kuo reported to Dr Noussair on his consultation with Mr Akkari. There was no reference in the report to any symptoms in the right knee. However, it was apparent that Dr Kuo was focused on the treatment of Mr Akkari’s cervical spine and right shoulder symptoms.
On 16 January 2019, Dr Diwan reported to Dr Noussair on his consultation with Mr Akkari. There was no reference in the report to any symptoms in the right knee. However, it was apparent that Dr Diwan was focused on the treatment of Mr Akkari’s cervical spine and right shoulder symptoms.
On 10 March 2022, Dr Malek reported that he disagreed with Dr Breit’s ultimate opinion that there was nothing to indicate that Mr Akkari injured his right knee in the incident on 14 June 2018. Dr Malek reported that Mr Akkari stated that he had “a fall in the mud and timber. He landed on his face, right knee, right shoulder and right side of the chest.”[140] The history reported by Dr Malek contained more detail than that contained in the entry in the clinical records on 5 May 2020 and in Dr Malek’s report dated 24 October 2020, in that, it now referred to landing on the right knee. Dr Malek added that the fall on the right knee in November 2019 was “a minimal one”[141] and did not cause any more pain than the trauma he sustained on 14 June 2018. In this regard, Dr Malek was reliant on the history provided by Mr Akkari.
[140] ARD at page 41 at [A5].
[141] ARD at page 41 at [A5].
On 15 March 2021, Dr Bodel diagnosed Mr Akkari as having suffered a soft tissue injury to the region of the right knee caused by the accident on 14 June 2018 and an aggravation, acceleration, exacerbation or deterioration of an underlying disease process. However, Dr Bodel did not appear to have access to Mr Akkari’s Mona Family Practice or Restwell Street Medical Centre clinical records. If he did, he did not refer to them.
Dr Bodel did not engage with the issue of the absence of complaints of symptoms in the right knee between 14 June 2018 and November 2019. Mr Akkari’s evidence was that he felt pain immediately after the fall on 14 June 2018 and that it progressively worsened. Dr Bodel was reliant on Mr Akkari’s history. Mr Akkari did not inform Dr Bodel that, in November 2019, he dropped on his right knee after tripping over a broken tile whilst taking out the rubbish at home. Dr Bodel failed to adequately expose his reasoning in respect of the fall on 14 June 2018 being causative of an injury to Mr Akkari’s right knee.
After having received further documentation, including Mr Akkari’s Mona Family Practice and Restwell Street Medical Centre clinical records, Dr Bodel prepared a supplementary report dated 14 April 2022. Dr Bodel conceded that he was reliant on the history provided to him by Mr Akkari and the information contained in the latter’s evidentiary statement dated 18 October 2021. Dr Bodel noted that Dr Malek had included the right knee injury as a primary frank injury and that there may have been further aggravation at later stages, including an injury when he fell over a chipped broken tile. The right knee injury appeared to have been listed in all the certificates of capacity provided by Dr Malek. However, Dr Bodel noted that Mr Akkari first attended Dr Malek on 5 May 2020. Again, Dr Bodel stated that he was dependent on Mr Akkari’s history as to the injury to the right knee to include it as a rateable impairment.
On 28 June 2021, Dr Breit diagnosed Mr Akkari with right knee arthritis. He opined that, given the mechanism of injury, it was reasonable to indicate that the problems with Mr Akkari’s neck, right shoulder and right knee were caused by the fall at work on 14 June 2018. Dr Breit was reliant on the history provided by Mr Akkari. However, Dr Breit did not have access to Mr Akkari’s Mona Family Practice or Restwell Street Medical Centre clinical records. Further, Mr Akkari did not disclose to Dr Breit that, in November 2019, he dropped on his right knee after tripping over a broken tile whilst taking out the rubbish at home. In fact, Dr Breit reported that Mr Akkari denied any subsequent injuries.
In his supplementary report dated 2 August 2021, Dr Breit opined that Mr Akkari had long-standing arthritis in his right knee and that he had sustained a soft tissue injury to his right knee on 14 June 2018. As Mr Akkari claimed ongoing issues with his right knee, Dr Breit was unable to indicate that the right knee condition had resolved. He pointed out that there was a lack of objective information and no historical general practice documentation made available to him.
In his supplementary report dated 11 August 2021, Dr Breit referred to Mr Akkari’s clinical records from Mona Family Practice and Restwell Street Medical Centre. As a result of reviewing the clinical records, Dr Breit resiled from his initial opinion that Mr Akkari had injured his right knee on 14 June 2018 because there was nothing to indicate that he did so. The Mona Family Practice clinical records made no mention of any injury to the right knee. Further, there was a subsequent distinct history of a separate injury which, in Dr Breit’s opinion, Mr Akkari was now attempting to claim was related to the fall on 14 June 2018 in retrospect. Dr Breit resiled from his initial opinion and opined that the evidence was now to the contrary.
Mr Akkari failed to satisfactorily explain the circumstances surrounding the retraction of the history he had provided to Dr Altman on 22 November 2019.
Again, I found that Mr Akkari’s evidence in respect of the alleged injury to his right knee lacking in detail. It contained the inconsistencies referred to above and I found his evidence in respect of the claimed right knee injury unconvincing.

In respect of Mr Akkari’s allegation of injury to the right knee on 14 June 2018, I prefer the opinion of Dr Breit over the opinion of Dr Bodel. I found Dr Bodel’s opinion in respect of the fall on 14 June 2018 being causative of an injury or condition to Mr Akkari’s right knee unconvincing and of little probative value for the reasons stated above.
Considering the matters referred to above, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Akkari has established that there was a definite or distinct physiological change or disturbance in his right knee in the form of a soft tissue injury or other condition arising out of or in the course of his employment with AGPL on 14 June 2018. There was no evidence of a sudden identifiable pathological change in the right knee. There was no evidence to support, on the balance of probabilities, an aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease process in Mr Akkari’s right knee, to which employment was the main contributing factor. Therefore, as a result of the above finding, I am not satisfied that the fall at home in November 2019 was as a result of pain and instability in the knee caused by the alleged frank injury to the right knee.
Accordingly, I find that Mr Akkari did not suffer an injury to his right knee arising out of or in the course of his employment with AGPL on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the 1987 Act.
I disagree with Mr Akkari’s submission that there were threads of material which, when analysed and weighed together would satisfy the Commission that Mr Akkari sustained the disputed injuries for the reasons stated above.
Whilst I do not doubt that Mr Akkari has symptoms in his left shoulder, lumbar spine and right knee, I am not satisfied on the balance of probabilities that he has established injuries to those parts of his body arising out of or in the course of his employment with AGPL on 14 June 2018. Human memory is fallible and the degree of fallibility increases with the passage of time, particularly where litigation is involved and the processes of memory are often subconsciously overlaid by perceptions of self-interest as well as conscious consideration of what could or should have happened. Often, what is actually remembered is little more than impression from which the plausible details are often subconsciously reconstructed[142] and that is what I find has occurred in Mr Akkari’s case in respect of his left shoulder, lumbar spine and right knee symptoms.

CONCLUSION
[142] Watson v Foxman (1995) 49 NSWLR 315 at 319.

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2022] NSWPIC 520

20 September 2022