Almahmoody v Formtastic Group Pty Ltd
[2025] NSWPIC 136
•9 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Almahmoody v Formtastic Group Pty Ltd [2025] NSWPIC 136 |
| APPLICANT: | Khaled Almahmoody |
| RESPONDENT: | Formtastic Group Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 9 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim pursuant to section 60 for proposed right shoulder surgery; injury recorded initially as right thumb injury; later recorded as right shoulder injury at date of accident as well; consideration of factual circumstances and pathology; Paric v John Holland (Constructions) Pty Ltd, and Kooragang Cement Pty Ltd v Bates considered; Held – right shoulder injury and pathology resulted from injury in course of employment; award in favour of applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his right shoulder, being a rotator cuff tear, in the course of his employment with the respondent on 16 August 2022, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). The applicant’s employment with the respondent was a substantial contributing factor to that injury. 2. The proposed right shoulder arthroscopic rotator cuff repair (the surgery), recommended by A/Prof Haber, is reasonably necessary as a result of the injury on 16 August 2022. 3. The respondent is to pay, pursuant to s 60 of the 1987 Act, for the cost of, and incidental to, the surgery. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
On 16 August 2022, the applicant, Mr Khaled Almahmoody, sustained injury to his right hand in the course of his employment with the respondent, Formtastic Group Pty Ltd.
The applicant underwent surgery on 18 August 2022 at the Auburn Hospital by Dr Atkinson. This was a surgical repair to the nail bed of the right little finger and k-wire fixation of the distal phalanx fracture.
The applicant claims proposed medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for injury to his right shoulder, also said to be injured on 16 August 2022.
A/Prof Haber has recommended right shoulder arthroscopic rotator cuff repair.
The respondent disputes injury to the right shoulder.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing of this matter on 19 March 2025, the applicant was represented by Mr Schipp of counsel, instructed by Ms Pershad, solicitor, and the respondent by Mr Stockley of counsel, instructed by Ms Tippett, solicitor.
In the course of the arbitration hearing the respondent sought leave, and was granted, to dispute injury to the right shoulder on 16 August 2022. My brief reasons were recorded and are not repeated here.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, excluding the report of Dr Guirgis dated 26 March 2024;
(b) Reply and attached documents, and
(c) Applications for leave to admit documents dated 13 and 14 February 2025, and attached documents.
Oral evidence
There was no oral evidence.
The applicant’s statement
The applicant provided a statement dated 6 December 2024. He said that he was born in Kuwait on 1 January 1990, moved to Iraq when he was six months old and then migrated to Australia in April 2014. He said that in Iraq, he completed year 10 in high school.
The applicant stated that on 16 August 2022 in the course of his employment with the respondent he was carrying a heavy metal support on his left shoulder that was about 3m long. He said that while he was carrying the metal support, he tripped and fell forward onto the ground, causing the metal support to slip off his left shoulder and hit his right hand resulting in an injury to his finger. He said that he also noticed pain in his right shoulder and other parts of his body not relevant here.
The applicant said that he was taken by a work colleague to Westmead Hospital where he underwent an X-ray and was discharged on the same day.
He said that on 18 August 2022 he underwent surgery at the Auburn Hospital by Dr Atkinson.
The applicant stated that after the accident he complained to his general practitioner that his right shoulder had deteriorated. He said that he underwent an ultrasound of his right shoulder on 8 December 2022. He also said that on 28 March 2023 he underwent an MRI of his right shoulder.
The applicant stated that on 11 September 2023 he underwent an ultrasound of his right shoulder. He said that he consulted with A/Prof Haber on the same day. The applicant said that A/Prof Haber recommended an arthroscopic right shoulder rotator cuff repair.
Clinical records
An operation report dated 11 November 2019 recorded a background of right shoulder instability and recurrent dislocation. The report noted that Dr Lieu performed an arthroscopic right shoulder stabilisation. It was also noted that findings were that the labrum was deficient anteriorly and unstable posteriorly.
An operation report dated 18 August 2022 of the Auburn Hospital noted a background of right little finger nailbed injury and distal phalanx fracture. The procedure was noted as debridement and repair right little fingernail bed plus K wire fixation distal phalanx fracture.
The notes of the Auburn Hospital did not refer to right shoulder symptoms.
A clinical entry dated 25 August 2022 by Dr Lim of the Workers Doctors noted initial presentation following right little finger injury on 16 August 2022. He noted that the worker had poor English. Dr Lim recorded that on 16 August 2022 the applicant was carrying a long metal pole on his left shoulder when he lost balance and hit his right hand. Dr Lim did not note right shoulder symptoms.
In a referral letter dated 14 September 2022 Dr Saeed, a general practitioner of the United Medical Centre, noted the presenting problem as being injury to the right hand and surgery at the Auburn Hospital. The background was noted as lifting a heavy iron column on the applicant’s left shoulder and he tripped and fell on the floor, injuring his right hand. It was noted that there was numbness and heaviness in the right arm and shoulder and the reason for contact included right shoulder pain and right arm pain and numbness.
On 15 September 2022 Dr Calvache of the Workers Doctors in a video call with interpreter on the video, noted injury to the finger whilst carrying a metal pole. It was noted that the applicant slipped on the floor at work and the metal pole fell onto his hand. Dr Calvache noted ongoing numbness in the finger and filling that the arm and shoulder was heavier and weak. He noted that there had been shoulder surgery a few months ago and the applicant felt his shoulder had deteriorated after the fall.
In an ultrasound right shoulder report to Dr Saeed dated 8 December 2022, history of injury was noted, and it was concluded that there was subacromial bursitis.
In a report dated 23 November 2022 to the Case Manager, iCare, Dr Atkinson, specialist reconstructive plastic surgeon and hand surgeon, noted review of the applicant in the clinic on the same day. Dr Atkinson noted that the applicant was meant to present with an interpreter but unfortunately none was available. Dr Atkinson noted that this made communication quite difficult. Dr Atkinson noted no other injury within the upper limb or hand but there was complaint of generalised pain within the hand, elbow and shoulder.
Dr Atkinson noted previous injury to the right shoulder and that the range of motion had decreased recently.In a report dated 21 December 2022 to Dr Saeed, Dr Atkinson noted the presence of an Arabic interpreter. Dr Atkinson noted continuing complaint of pain within the hand, right elbow and right shoulder. Dr Atkinson referred the applicant to Westmead hand therapy for ongoing range of motion exercises for the hand, and elbow and shoulder.
On 28 March 2023 and MRI right shoulder report to Dr Giblin noted the clinical indication was shoulder pain after a fall and concluded that there was previous labral repair with some concern that there may be partial labral detachment. It was also concluded that there was a Hills-Sachs fracture, mild subacromial/sub deltoid bursal inflammation and “no cuff tear”.
Dr Giblin
In a report dated 15 March 2023, Dr M Giblin, orthopaedic surgeon, noted that he saw the applicant on that day without an interpreter, “making his history a little difficult”. He noted that the applicant was carrying a metal bar of some sort on the left shoulder when he fell and hit his right hand and then he fell onto the floor. He noted treatment by Dr Atkinson and the other orthopaedic injuries included right shoulder pain. He noted on examination restricted movement in the right shoulder. Dr Giblin also noted that an ultrasound of the right shoulder suggested subacromial bursitis.
Associate Professor Haber
In a report dated 11 September 2023 to Dr Saeed, A/Prof Haber, shoulder orthopaedist, noted previous arthroscopic labral repair of the right shoulder.
A/Prof Haber noted a history of injury to the right shoulder when the applicant was holding a heavy pole/rod and since that time the applicant had progressing shoulder pain. He noted that there had not been any sign of instability. A/Prof Haber noted investigations, including previous ultrasound and an MRI report which included a clinical indication of shoulder pain after a fall.
A/Prof Haber noted that the “check ultrasound” performed on the same day demonstrated “near full thickness rotator cuff tear of the supraspinatus 11 x15” and enclosed a copy of the full report.
A/Prof Haber also noted that:
“We discussed the natural history of rotator cuff tears with the risk of tear progression which is associated with a poor prognosis with the development of an irreparable tear and cuff tear arthropathy.
Deterioration of cuff tears is unpredictable, and I have therefore recommended surveillance in the presence of a full thickness tear with a check ultrasounds if surgery is delayed.
Due to the presence of a significant partial thickness rotator cuff tear and persistent symptoms, I have recommended an arthroscopic rotator cuff repair.”
Dr Bodel
Dr Bodel, orthopaedic surgeon, provided reports to the applicant’s solicitors dated
17 January 2024 and 18 June 2024.In his report dated 17 January 2024 Dr Bodel noted that the applicant was assisted by an interpreter. Dr Bodel had examined the applicant on 8 September 2023 for the purpose of report and assessment.
Dr Bodel recorded a history that the applicant was carrying a steel post and he had it over his left shoulder and he was walking across a concrete slab. He recorded that the applicant tripped over something and fell awkwardly and landed on his outstretched right arm with his right hand around the metal bar. He recorded that the applicant stated that he injured his right hand and right shoulder. Dr Bodel noted subsequent surgery.
Dr Bodel noted that the applicant remained under the care of Dr Saeed and he had relevantly continuing right shoulder pain. Dr Bodel also noted an MRI of the right shoulder. He noted that the applicant was to have an appointment with A/Prof Haber, orthopaedic shoulder specialist, that was due to occur in the next few weeks. Dr Bodel also noted treatment by
Dr Giblin and assessment by Prof Waller.Dr Bodel noted previous injury and treatment for the right shoulder in 2019 with good response after surgery.
Dr Bodel noted investigations which included MRI of the right shoulder on 28 March 2023 with comment noted that there was some bursitis and tendinitis but no rotator cuff tear. He also noted right shoulder ultrasound showed bursitis.
Dr Bodel was at the opinion that the applicant had sustained a soft tissue injury to his shoulder. His diagnosis was musculoskeletal injury being minor bursitis and tendinitis in the region of the right shoulder. Dr Bodel regarded the applicant’s present condition as being relevantly mechanical symptoms in the right shoulder.
In his report dated 18 June 2024, Dr Bodel indicated that the ongoing right shoulder disability was clearly consistent with the mechanism of injury at work on 16 August 2022. He was of the opinion that the injury at work was the substantial contributing factor to the full thickness rotator cuff tear and the reason for the need for surgery. Dr Bodel was of the opinion that this had probably arisen as a result of the event at work on 16 August 2022. He was the opinion that the painful restriction of shoulder movement at the time of physical examination by Dr Bodel was due to the rotator cuff pathology in the right shoulder and that appropriate surgical repair has now been recommended. He was of the opinion that the applicant had recovered from the previous labral repair of the right shoulder
Associate Professor Waller
A/Prof Waller provided a report to the workers compensation insurer dated 23 January 2023. A/Prof Waller noted that an interpreter was present.
A/Prof Waller recorded a history that on 16 August 2022, the applicant was carrying a heavy metal support on his left shoulder when he tripped, and as he fell to the ground the metal support slipped off his left shoulder and hit his right hand causing an injury to the little finger. He noted subsequent surgery. A/Prof Waller also noted that at some stage following injury the applicant developed pain relevantly in his right shoulder. He noted that the applicant had been having physiotherapy for his hand and right shoulder. He also noted current complaint of right shoulder pain and prior surgical stabilisation of the right shoulder in 2024 recurrent dislocations.
A/Prof Waller noted a right shoulder ultrasound dated 6 December 2022 reported and showing mild subacromial bursal thickening with bunching. He is of the opinion that ultrasound of the right shoulder showed very mild subacromial bursitis.
A/Prof Waller was also of the opinion that the right shoulder condition was not related to injury to the right little finger on 16 August 2022. He was of the opinion that the claimed shoulder pain was not related to the injury of 16 August 2022, and he noted the report and certificate of capacity of Dr Lim of 25 August 2022 which did not mention shoulder symptoms, nor a certificate of capacity dated 2 November 2022 which made no mention of shoulder symptoms.
A/Prof Waller was of the opinion that the claimed symptoms in the right shoulder were not supported by clinical evidence or radiological investigations. He was of the view that the reported pain was out of proportion to objective, clinical and radiological findings.
Reasons
There was no dispute that there was an injurious event on 16 August 2022 in which the applicant sustained injury to his right hand.
There was no dispute that the applicant had recovered from the earlier surgery to his right shoulder in about 2019. There was also no dispute that the applicant had undergone surgery in about 2019 to his right shoulder in the form of a labral repair. There was no dispute that the pathology in 2019, a labral tear, was different to the pathology and injury in dispute in the current proceedings, a rotator cuff tear.
The respondent did not dispute that the applicant has a rotator cuff tear of the right shoulder.
The respondent disputes injury to the right shoulder on 16 August 2022 and whether the rotator cuff pathology was caused by any injury to the right shoulder on 16 August 2022.
I find that the right shoulder surgery on 11 November 2019 did not find evidence of rotator cuff pathology. This is clear from the operative report and there was no dispute from the respondent in this regard.
I also accept the applicant’s evidence that he had fully recovered from that surgery prior to injury on 16 August 2022. The respondent challenged the applicant’s credit in respect of report of right shoulder symptoms after injury of 16 August 2022, but not as to the condition or symptoms in his right shoulder prior to that date.
There was no evidence before me of any further right shoulder symptoms or complaints until after the injury of 16 August 2022. It follows then that in my view, and on the balance of probabilities there was no evidence of right shoulder rotator cuff pathology prior to the incident of 16 August 2022. This in my view is consistent with the opinion of A/Prof Haber, as discussed below.
The respondent criticised the applicant’s credit as to the reporting of the onset of symptoms in the right shoulder. In particular, it was the respondent’s submission that it was not believable that if the applicant had any symptoms in his right shoulder when he saw Dr Lim on 25 August 2022, he would not have complained about it to Dr Lim, and that Dr Lim would not have asked the applicant about the right shoulder on a background of prior dislocation and a fall onto the outstretched right hand. It was submitted that a finding should be made that there was no complaint made about the right shoulder at all until at least after
25 August 2022.I do not accept these submissions. Dr Lim commented that the applicant had poor English. He arranged for interpreter referral. He did not record a fall. The immediate treatment regime following surgery on 18 August 2022 was hand therapy. In my view it is speculative to assume what Dr Lim would or not have asked in these circumstances.
In my opinion, the absence of a record by Dr Lim on 25 August 2022 of right shoulder complaint, or earlier at the Auburn Hospital, is not inconsistent with a somewhat later record of right shoulder symptoms, particularly when considered in the context of the explanation provided by A/Prof Haber of tear progression and unpredictable deterioration, which to my mind is persuasive.
As noted above, by September 2022 the applicant did complain of right shoulder symptoms following the injury of 16 August 2022. Dr Saeed’s letter of 14 September 2022, and the clinical record of Dr Calvache, of the same practice as Dr Lim, on 15 September 2022 both record complaint of right shoulder symptoms following the injury of 16 August 2022.
Dr Calvache noted this was a fall. The applicant was assisted by an interpreter when he spoke to Dr Calvache on 15 September 2022. These complaints were consistent thereafter, including to Dr Atkinson, Dr Bodel, A/Prof Waller and A/Prof Haber.There was a suggestion in submissions that credit was in question when it is considered that A/Prof Waller noted symptom complaint out of proportion to clinical evidence and pathology. I do not accept this submission. A/Prof Waller’s observations in January 2023 are in my view not relevant to the question of complaint of symptoms in August and September 2023, reliant as his observations were as to his findings of an absence of evidence in records he reviewed. I have found otherwise.
The respondent questioned the history of injury recorded by Dr Bodel as being at odds with the contemporaneous record. This submission was in terms of right shoulder injury said to be contemporaneous with the event on 16 August 2022. However, Dr Calvache, with the assistance of an interpreter, recorded a slip and also a fall. Dr Saeed recorded a trip and fall. The record of the Auburn Hospital on 17 August 2022 stated that there was a crush injury on 16 August 2022 with a 12kg weight. In my view these records are not inconsistent with the history recorded by Dr Bodel.
The Auburn Hospital record was taken in the context of treatment of the right little finger, for which immediate attention was required and given. This record, and the note of Dr Lim of
25 August 2022, should be treated with caution.[1] For the reasons given, I apply that caution in this matter and conclude that these notes are not inconsistent with the applicant’s complaints of right shoulder pain a relatively short time later in mid September 2022.[1] Mason v Demasi [2009] NSWCA 227 at [2].
I accept the applicant’s evidence that he sustained right shoulder pain at the time of the injury on 16 August 2022. I do not accept the respondent’s submission that this was a history of the late onset of symptoms, for the reasons given above.
The respondent also submitted that the applicant had not demonstrated how the rotator cuff pathology relates to the accident of 16 August 2022. It was submitted that there was no radiological evidence of a rotator cuff tear, in the ultrasound of December 2022 or the MRI of March 2023, until the ultrasound of September 2023, and that there had been no clinical signs of rotator cuff tear found by A/Prof Waller, Dr Giblin or Dr Bodel.
I do not accept these submissions. A/Prof Waller commented on the findings of the ultrasound and his own clinical findings, but when asked about causation relied upon the documents noted above. I have found that the absence or lack of comment in those documents is not determinative of onset of right shoulder pain and I have found otherwise. In my view it is speculative to assume what A/Prof Waller would have suggested as to the absence or otherwise of clinical signs or rotator cuff tear. He made no comment in this regard. In any event, his findings in January 2023, or his absence of findings, is not inconsistent with the explanation of gradual deterioration provided by A/Prof Haber.
Similarly, Dr Giblin in my view relevantly diagnosed injury to the right shoulder. He simply stated the reported outcome of the ultrasound of December 2022 and recommended further investigation. This in my view is not inconsistent with the findings of A/Prof Haber.
Dr Bodel examined the applicant prior to becoming aware of the outcome of the consultation with A/Prof Haber. He initially diagnosed soft tissue injury to the shoulder and minor bursitis and tendinitis. He took a history, which in my view was the most detailed before me, of a fall onto the outreached hand. When he became aware of the findings of A/Prof Haber and agreed with A/Prof Haber, it was against the background of the history he had recorded and his own clinical examination. In my view the suggestion that Dr Bodel’s clinical findings do not support rotator cuff findings should not be accepted when it is considered that Dr Bodel agreed with the findings of A/Prof Haber that there was a rotator cuff tear. It should be born in mind that A/Prof Haber made his finding on the basis of the ultrasound of September 2023 and his explanation of the deterioration of symptoms.
As noted above, I find the opinion of A/Prof Haber to be persuasive. He took a concise history of injury to he right shoulder while the applicant was holding a heavy pole, and he also noted the MRI report of history of shoulder pain after a fall. This in my view provided the basis for a fair climate[2] for his opinion. His explanation of tear progression, with poor prognosis, unpredictable deterioration and the presence of a significant partial thickness tear, consistent with the reported mechanism, is in my view persuasive and not inconsistent with the reports of A/Prof Waller, Dr Giblin and Dr Bodel, for the reasons given above.
[2] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
Adopting a commonsense view of causation,[3] in my view, the applicant sustained injury to his right shoulder on 16 August 2022 in the course of his employment when he was carrying a heavy pole or rod on his left shoulder, slipped on and fell onto his outstretched right hand, resulting in injury to his right hand and right shoulder, and resulting in a tear to his rotator cuff, and thereafter progression and deterioration of that tear, such that it became evident in the ultrasound of September 2023.
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
I accept the the opinions and reports of Dr Bodel and A/Prof Haber.
I find that the applicant sustained injury to his right shoulder in the form a rotator cuff tear in the course of his employment with the respondent on 16 August 2022, pursuant to s 4(a) of the 1987 Act. Both Dr Bodel and A/Prof Haber were of the view that the applicant’s employment with the respondent was a substantial contributing factor to that injury. I accept those opinions.
There was no evidence before me that was contrary to the recommendation by A/Prof Haber for the proposed surgery. Dr Bodel agreed with the recommendation. Both Dr Giblin and A/Prof Waller provided their reports well before the ultrasound of September 2023 and the findings and recommendation by A/Prof Haber. There was no dispute in submissions as to the reasonableness of the proposed surgery. I find that the surgery recommended by A/Prof Haber is reasonably necessary as a result of the injury on 16 August 2022.
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