Bastawros v Japara Administration Pty Ltd
[2020] VMC 8
•17 APRIL 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. K11596700
| ZIZI BASTAWROS | Plaintiff |
| v | |
| JAPARA ADMINISTRATION PTY LTD | Defendant |
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MAGISTRATE: | M HOARE |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 24-25 FEBRUARY 2020 |
DATE OF DECISION: | 17 APRIL 2020 |
CASE MAY BE CITED AS: | BASTAWROS V JAPARA ADMINISTRATION PTY LTD |
MEDIUM NEUTRAL CITATION: | [2020] VMC008 |
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CATCHWORDS - Workers Compensation – Termination of Weekly Payments and Medical and Like Expenses – Whether Incident was a Cause of Injury – Onus of Proof – Credit of Plaintiff – Reliability of Histories to Medical Witnesses - Workplace Injury Rehabilitation and Compensation Act 2013
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Mr Dunstan | Ryan Carlisle Thomas |
For the Defendant | Mr Batten | IDP Lawyers |
HER HONOUR:
Introduction and Overview
Ms Bastawros, a personal care attendant, has been employed by Japara Administration Pty Ltd (‘Japara’) since November 2012. She worked for Japara at St Jude’s, an aged care facility in Narre Warren.
An incident occurred on 9 December 2018 during Ms Bastawros’ overnight shift at about 1:30 am. Ms Bastawros and a co-worker were changing the incontinence pad of an elderly resident whilst she lay on her bed. Whilst performing the task, the resident who had dementia pulled on Ms Bastawros’ right arm.
As a result of this incident, Ms Bastawros claims to have suffered injury to her right shoulder and consequential psychological injury and, further, to have been unfit for her pre-injury duties from 13 December 2018. She seeks weekly payments of compensation from 22 February 2019 and continuing as well as ongoing medical and like expenses from 22 March 2019 in accordance with Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).
Ms Bastawros’ claim for compensation was accepted initially. However, the authorised insurer, by notice dated 18 February 2019, subsequently terminated her entitlement to weekly payments and medical and like expenses (’the notice’).
Japara admitted the incident on 9 December 2019, but denies the claim on several grounds, namely:
·Ms Bastawros had not sustained an injury arising out of or in the course of her employment;
·She is not incapacitated for work or, if she is incapacitated for work (which is denied), employment is no longer materially contributing to any incapacity for work
·Her claimed medical and like expenses are not reasonable or necessary.
In essence, the dispute was a factual one not as to whether the incident occurred but as to its impact or extent and its consequences, that is whether, as Ms Bastawros says, the incident resulted in the injury claimed or whether, as the employer says, the incident was minor in nature causing momentary pain against a background of industrial issues relating to Ms Bastawros’ work performance.
In delivering my decision, I must make findings in relation to the following:
·Whether Ms Bastawros suffered injury as a consequence of the incident on 9 December 2018, if so, what was the nature of such injury or injuries;
·Whether, were I to find that Ms Bastawros’ injury or injuries are a recurrence, aggravation, acceleration, exacerbation, deterioration of any pre-existing injury or disease, her employment is a significant contributing factor to such injury or injuries;
·Whether Ms Bastawros is incapacitated for her employment and whether such incapacity is materially contributed to by any injury arising out of the incident on 9 December 2018; and
·Whether Ms Bastawros is entitled to medical and like expenses.
At the hearing of this matter, oral evidence was given by the plaintiff only and her credit was central to the determination of her claim.
No medical witnesses were called for cross-examination and, by agreement, medical material was tendered.
10.Neither party called lay witnesses for cross-examination including Ms Bastawros’ co-worker, Ms Ingrid McMahon, who was present at the time of the incident on 9 December 2018 nor Ms Mihira (Milly) Kuranage, Ms Bastawros’ manager and a registered nurse employed by Japara. The plaintiff tendered an unsigned statement of Ms McMahon and the defendant tendered an unsigned statement of Ms Kuranage.
11.Also tendered by the defendant was correspondence from it to Ms Bastawros relating to employment matters.
The plaintiff’s evidence
12.By way of background, Ms Bastawros, who was aged 61 years at the time of the hearing, had emigrated from Egypt in 2001. From about 2003, Ms Bastawros, having gained appropriate qualification, worked as a personal care attendant. Prior to commencing with Japara, she had worked at an aged care facility called Regis in Noble Park between 2009 and 2012.
13.She usually worked the overnight shift at St Jude’s from 9:30 PM to 7 AM performing about 36 hours per week.
Incident on 9 December 2018
14.In relation to the incident on 9 December 2018, Ms Bastawros said she was changing an incontinence pad of an elderly dementia resident as she lay on her bed on her back. Ms Bastawros was performing the task with a co-worker, Ms Ingrid McMahon. The resident, described by Ms Bastawros as very tall and very strong, pulled on Ms Bastawros’ right arm. Ms Bastawros felt immediate pain in the region of her right shoulder and said ‘ah’ out loud to her co-worker.
15.Afterwards, Ms Bastawros saw the duty registered nurse who gave her painkillers, but she did not make a formal incident report. She was able to continue working and finished her shift at the usual time of 7 AM.
16.Ms Bastawros was not rostered to work the following two days. She did not seek medical or any other treatment in the course of those two days.
17.On 12 December 2018 she returned to work and a worked a full shift. She felt pain in her right shoulder and during the shift saw her manager and the duty registered nurse, Ms Kuranage, who gave her painkillers. Another co-worker Ranjit Kaur rubbed anti-inflammatory cream to her right shoulder region.
18.Also on 12 December 2018, Ms Bastawros telephoned Japara’s dedicated hotline to report an injury due to the incident on 9 December 2018. After the call to the hotline, Japara arranged for her to see a physiotherapist, Mr Luan Viegas.
19.Ms Bastawros saw Mr Viegas for treatment on 13 December 2018. The physiotherapist had initially recorded the mechanism of injury as having been due to the elderly resident falling upon her. Mr Viegas subsequently corrected the record by writing to the authorised insurer advising that the reported mechanism of injury was in fact that the patient had grabbed Ms Bastawros’ hand and pulled on it.
20.An ultrasound on 17 December 2018 of Ms Bastawros’ right shoulder was arranged by Mr Viegas, the findings of which were a ‘5 x 3 x 6 mm partial thickness tear within the of the supraspinatus tendon’ and ‘sub-acromial bursitis’.
21.Ms Bastawros said on her union’s advice she stopped seeing Japara’s physiotherapist and on 18 December 2018, she saw her then usual GP, Dr Saruthala Visnumogan of The Avenue Family Medical Clinic, Cranbourne North. Dr. Visnumogan provided a medical certificate dated 18 December 2018 that noted the ultrasound findings and stated that it might take six weeks to recover.
22.Ms. Bastawros signed a worker’s injury claim form dated 18 December 2018 which had been completed by her adult daughter. In response to the question ‘what happened and how were you injured?’ the claim form stated: ‘when we were changing a resident’s pad she was physically aggressive. She grabbed my right arm and pulled it down ‘. Additionally, Ms. Bastawros signed two formal incident reports dated 18 December 2018 on Japara’s prescribed forms. One form related to the incident on 9 December 2018 and recorded an identical description to that in the claim form, adding ‘but I thought it would go away’. The second form related to her shift on 12 December 2018 and stated: ‘After finishing my round, my right shoulder pain increased. I reported this to the hotline service…’
23.On 19 December 2018, Ms Bastawros emailed to her manager Ms Kuranage a worker’s injury claim form dated 18 December 2018, two incident reports, the ultrasound of 17 December 2018 and the medical certificate dated 18 December 2018 of Dr. Visnumogan.
24.Ms Bastawros did not attend work on 13 December 2018 and indeed has not returned to work since she completed her shift of 12 December 2018.
Employment issues
25.In cross-examination, Ms Bastawros agreed that, prior to the incident on 9 December 2018, she had been notified by Japara that she was required to attend a performance counselling meeting on 13 December 2018.
26.The background to the performance counselling meeting was that Japara had notified Ms Bastawros by letter dated 22 November 2018 (tendered by the defendant in evidence) of performance concerns described as ‘serious matters’. Japara alleged that behaviour by Ms Bastawros constituted breaches of the relevant charter of care and employer code of conduct relating to residential care. The letter of 22 November 2018invited Ms Bastawros to a formal meeting on 26 November 2018 to discuss the allegations. She attended the 26 November 2018 meeting with her union representative.
27.Ms Bastawros, in cross-examination, agreed following the meeting of 26 November 2018 she received a further letter from Japara dated 7 December 2018 (also tendered by the defendant in evidence) that notified her of the formal outcomes of that meeting. The outcomes were: findings of breaches of the charter of care and code of conduct; a requirement that Ms Bastawros attend formal workplace counselling meeting on 13 December 2018; a requirement that she follow directions of the registered nurse; and that she must acknowledge workplace behaviours procedure by returning a signed form to her manager by 12 December 2018.
28.Ms Bastawros did not attend the formal workplace counselling meeting on 13 December 2018 and it was cancelled.
29.Ms Bastawros denied recollection of an email sent on 17 December 2018 (tendered by the defendant) that followed her up regarding the re-scheduling of the counselling meeting on the basis that she was due to return to work on 21 December 2018.
30.In cross-examination, Ms Bastawros denied that she had reported the injury and lodged the claim in order to avoid the counselling meeting scheduled for 13 December 2018.
31.She also denied having left her prior employment with Regis after similar workplace issues had arisen and that her manager at St Jude’s was the same person who had managed her at Regis. She agreed that there had been a friendship with her manager Ms Kuranage, that had broken down.
Prior injury history
32.In evidence in chief, Ms Bastawros said she had had no prior right shoulder problems nor any prior investigations of her right shoulder.
33.Ms Bastawros was cross-examined extensively in relation to the prior history of her right shoulder injury in the context of stating ‘no’ in the signed workers claim form of 18 December 2018 in answer to the question, ‘Have you previously had another injury/condition personal injury claim condition that relates to this injury/condition?’
34.In cross-examination, Ms Bastawros denied any issue with her right shoulder in the past and specifically denied any recollection of having undergone investigations of her right shoulder in the past. She said she could not recall an episode involving a clinical presentation on 27 November 2009 recorded as ‘painful to abduct shoulder joint greater than 90 deg[rees]’ with a further note of Ms Bastawros apparently declining to undergo x-ray and ultrasound examinations at that time. Ms Bastawros also denied any recollection of having undergone in January 2010 a right shoulder ultrasound the findings of which were: ‘the supraspinatus tendon is thickened and heterogenous in echotexture consistent with tendinopathy without a tear. The biceps, subscapularis and infraspinatus tendons are normal in appearance. There is painful bunching of the supraspinatus tendon on shoulder abduction consistent with impingement’.
35.In cross-examination, Ms Bastawros denied any memory of a St Vincent’s Hospital outpatient attendance record of 17 June 2010 which recorded a complaint of right shoulder pain and included reference to the ultrasound of the right shoulder and supraspinatus impingement. At this stage it appeared Ms Bastawros had been under the care of orthopaedic surgeon Dr Bruce Love at St Vincent’s Hospital.
36.Ms Bastawros denied having made a complaint of shoulder pain on 4 August 2018 to a GP Dr V Sriranganathan at her then clinic The Avenue Medical Clinic, Cranbourne North. Ms Bastawros denied absolutely having ever made a complaint about shoulder pain at this time. Her explanation was that the clinical note must be “a fake”.
37.In cross-examination, Ms Bastawros agreed that she did not tell her current GP Dr Gerges about having any prior history of shoulder issues. She said this was because Dr Gerges had not asked her about a prior injury.
38.When questioned in cross-examination as to why she had not provided a history of prior shoulder problems to Mr Anthony Menz, orthopaedic surgeon, who examined her for medico-legal purposes at the defendant’s request, she said it was because she was asked whether she had any prior injury rather than any prior problem. She also agreed that she had not disclosed any prior right shoulder issues to the physiotherapist Mr Viegas.
39.In cross-examination, Ms Bastawros agreed that she had a history of chronic back pain and bilateral knee problems that recurred on and off although these conditions had at no stage precluded her from working.
40.In re-examination, Ms Bastawros said that she had no recollection of an episode of right shoulder problems in August 2018 but that in any event she had lost no time from work due to her right shoulder then nor at any time prior to the incident on 9 December 2018.
Subsequent treatment and current situation
41.Ms Bastawros first consulted her current GP Dr Gerges of Lynbrook Village Medical Centre on 31 January 2019. She continues to be treated by Dr Gerges.
42.Until January 2019 her usual GP practice had been The Avenue Medical Clinic, Cranbourne North. She ceased consulting there and transferred her care to Lynbrook Village Medical Centre.
43.In cross-examination, she was unable to explain why the records of The Avenue Medical Clinic, tendered by the defendant recorded that she was the subject of an alert to prevent her booking as a patient at the clinic again.
44.When she consulted Dr Gerges, she gave a history of the incident on 9 December 2018 and of the resident grabbing her right arm. Dr. Gerges referred her for physiotherapy and to an orthopaedic specialist Mr Eden Raleigh whom she saw on one occasion. Mr Raleigh arranged an MRI and ultrasound. Ms Bastawros was unable to undergo the MRI because of claustrophobia and so the injection did not proceed.
45.Regarding her unrelated back and knee problems, Ms Bastawros agreed in cross examination that presented to Dr Gerges about her back and her knee problems on 14 February 2019 and again on 19 February 2019.
46.Ms Bastawros has continued to consult with Dr Gerges. She ceased physiotherapy because she could not afford to continue it after her claim was terminated. She is prescribed Tramadol, Panadeine Forte and medication for depression.
47.She said that she could not perform her pre-injury duties with Japara because of her right shoulder problems.
48.In cross-examination, Ms Bastawros denied that she had ceased work for any reason other than her right shoulder injury. She denied that the employment issues that had arisen in late 2018 had played a part in her ceasing work. She also said had no current care responsibilities for her grandchildren with special needs that would preclude her from working. In cross-examination, Ms Bastawros denied that her chronic back pain and bilateral knee problems precluded her from working.
49.Regarding her right shoulder current condition, Ms Bastawros described constant pain with a limited range of movement. Whereas she formerly enjoyed doing her own housework, it is now done by her adult daughter with whom she lives.
50.She avoids lifting and has trouble gripping and holding onto things with her right hand. She has difficulty sleeping. She gave evidence that she can drive for about 25-30 minutes
The lay-witness evidence
51.Ms McMahon, a former personal care attendant previously employed by Japara, provided a statement dated 1 January 2019 in which she stated she recalled the incident in the early hours of 9 December 2018. Ms McMahon’s statement corroborates Ms Bastawros’ evidence in respect of the incident itself. She states that they were changing a resident’s incontinence pad together when she saw the resident grab hold of Ms Bastawros’ forearm before Ms Bastawros then pulled her own arm away. She heard Ms Bastawros say ouch. Ms McMahon thought that it hurt her. She recalls Ms Bastawros holding her right arm with her left arm. She told Ms Bastawros to write up an incident report.
52.Ms Kuranage, a facility manager with Japara, provided a statement dated 7 January 2019, in which she confirmed she was Ms Bastawros’ manager at the time of incident. Her statement outlines details of performance concerns held by Japara relation to Ms Bastawros’ conduct in the workplace over the period from 20 April 2018 up until the time of the correspondence of Japara dated 22 November 2018. Ms Kuranage confirmed that Ms Bastawros attended work on 12 December 2018 and performed her normal duties. At around midnight on 12 December 2018, Ms Bastawros complained to her of the incident on 9 December 2018 with Ms Kuranage describing it as ‘this very weird major injury’. She did not attend the workplace counselling meeting on 13 December 2018 and did not return to work after that. She stated Ms Bastawros had no sick leave or annual leave entitlements available. She expressed considerable suspicion about the claim.
The medical evidence
53.Mr Luan Viegas, physiotherapist, who examined the plaintiff on 13 January 2019 provided correspondence and reports. By way of correspondence, he corrected the record of the history obtained in first attendance on Ms Bastawros 13 December 2018 to be that the resident grabbed her hand, pulled on her and since then has severe shoulder pain. Mr Viegas recorded a history that she did not have any shoulder pain or injuries prior to the incident at work indicating that the injury was directly related to her employment. At the time of providing his most recent report of 20 March 2019, he had not seen the plaintiff since 10 January 2019.
54.Dr Sarulatha Visnumogan’s medical certificate of 18 December 2018 and clinical records for the period 29 August 2017 to 20 February 2019 were tendered. The medical certificate noted the ultrasound finding and said there might be a six-week recovery period. The attendance note of the consultation on 17 December 2018 recorded: ‘right sided shoulder pain after a resident pulled her hand aggressively. Since then she has pain. Stated the patient died on Wednesday [12 December 2018]’.
55.Mr Modeum Chu, physiotherapist, provided a report dated 16 March 2019, having treated Ms Bastawros on 11 February 2019 and 16 March 2019. He obtained a history that the resident had pulled her arm and the pain started then. He stated at that time she was fit for light duties and that the diagnosis was of a right shoulder rotator cuff injury and subacromial bursitis.
56.Dr Moheb Gerges, the plaintiff’s general practitioner provided a report dated 16 July 2019. Dr Gerges was not consulted by Ms Bastawros until 31 January 2019 some six weeks following the incident on 9 December 2018. Dr Gerges records a history of the resident having grabbed Ms Bastawros’ forearm and that she had felt pain in the right shoulder which after returning home was getting worse. He referred her to Mr Eden Raleigh who arranged an MRI and a cortisone injection. Dr Gerges opined that Ms Bastawros requires further orthopaedic assessment, physiotherapy and rehabilitation as well as pain management. He said she was unfit for her pre-injury employment. He diagnosed depression for which he prescribed an antidepressant. Certificates of Capacity provided by Dr Gerges certified Ms Bastawros had no capacity for employment up until 29 December 2019.
57.Dr Jennifer Flynn, orthopaedic surgeon, who examined the plaintiff for medico-legal purposes provided a report dated 23 July 2019. Dr Flynn obtained a history that the resident, who was strong, had grabbed and pulled her forearm forcefully causing her right shoulder pain and that Ms Bastawros stated she was able to convince a resident to release her arm. Ms Bastawros told Dr Flynn that she was unaware of the disciplinary warnings or action until the beginning of the WorkCover conciliation process for the work-related shoulder claim. Dr Flynn obtains no history of prior right shoulder problems. After examining Ms Bastawros, she records a diagnosis of right partial-thickness supraspinatus tear and impingement together with neurogenic right upper limb pain after right shoulder injury. She considers she has no capacity to perform either her preinjury duties or any suitable employment.
58.Dr Anthony Menz, orthopaedic surgeon, examined the plaintiff for medicolegal purposes for the defendant and provided two reports. In his initial report dated 24 January 2019, Mr Menz provided an opinion that the injury was caused by the trauma sustained to Ms Bastawros’ right shoulder when an inmate violently grabbed her right arm. He also stated that her employment was the sole contributing factor to her injury and that she did not have capacity for preinjury or modified alternate duties. In his subsequent report of 13 February 2019 Mr Menz retracted his original opinion after considering additional circumstance material provided by the authorised insurer including correspondence in relation to Ms Bastawros’ work performance issues and the requirement that she attend formal performance counselling on 13 December 2019. Mr Menz stated that he no longer considered that Ms Bastawros’ right shoulder condition was caused by the incident that occurred on 9 December 2018.
Analysis and Findings
Onus of proof
59.In respect of upon which party the onus of proof lies, Counsel for the Defendant submitted, and I agree, the onus rests upon Ms Bastawros.
60.The authorised insurer had accepted the plaintiff’s claim for compensation before terminating payments as a result of further investigation. This case, in my view, falls squarely within the second of the propositions of His Honour Judge Higgins in Jackson v City of Caulfield & Anor [1996] VCC 16, namely:
Where the decision to terminate payments is based not upon some change in the circumstances relating to the worker’s medical condition, but upon the fact that the medical condition was never compensable notwithstanding the original acceptance, then the onus in respect of proving that it was compensable is upon the worker.
61.Alternatively, if the onus of proof rests with the Defendant, then I am satisfied that the defendant has discharged the onus.
Whether or not Ms Bastawros suffered injury as a result of the incident on 9 December 2019 in the course of her employment and, if so, what was the nature of such injury or injuries?
62.In Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76], the Court of Appeal stated:
As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important. This was such a case. In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of his injury was credible and reliable. He also needs to establish the reliability of the histories he gave the medical witnesses, whose opinions were premised on the accuracy of the applicant’s account.
63.Clearly, in this case, where the plaintiff was the sole witness to give oral evidence, her credit was central to the determination of her claim. I did not find Ms Bastawros to be a credible and reliable witness.
64.In relation to the evidence of the two lay witnesses, I accept Ms McMahon’s statement corroborates that an incident occurred 9 December 2018 causing Ms Bastawros observable pain. On the other hand, whilst Ms Kuranage confirms an incident on 9 December 2018 was reported to her on 12 December 2018, she otherwise makes clear her considerable suspicion regarding the veracity of Ms Bastawros’ claim. I am of the view evidence of the lay witnesses is of very limited weight, each being untested by cross-examination. In a sense, the two statements tendered by mutual agreement, effectively cancel each other out, one being corroborative of Ms Bastawros at least in respect of the occurrence of the incident and one casting doubt particularly as to the nature of the incident and its consequences.
65.In arriving at my assessment of Ms Bastawros’ credit, I have considered not only the plaintiff’s own account but the whole of the evidence as I have summarised and my impressions of her as a witness. My consideration of her credit included the following matters:
·Ms Bastawros first saw a doctor on 18 December 2018 when she told him she had had pain since the time of the incident. She also told the physiotherapist Mr Viegas on 13 December 2018 that she had been in severe pain since the time of the incident. I find it implausible therefore that Ms Bastawros delayed seeking medical treatment for several days and particularly that she did not seek treatment on her two rostered days off following the incident.
·Ms Bastawros stopped work prior to the same day she was required by the employer to attend workplace performance counselling following an outcome of formal findings of breaches of the residential charter of care and employer code of conduct. She lodged her WorkCover claim the day after an email was sent from the employer making it plain that that the counselling meeting originally scheduled for 13 December 2018 would be re-scheduled following her return from work.
·Her demeanour and the manner in which she responded to cross-examination in relation to her past shoulder history I found to be particularly evasive including: describing the clinical note of a prior complaint on 4 August 2018 as being ‘fake’; her denial of any recollection of past shoulder problems and investigations; her non-disclosure of prior shoulder complaints to Dr Gerges whom she started seeing after the incident was explained by saying he didn’t ask; her explanation that she did not given a history of prior right shoulder complaints to Mr Menz and other medical witnesses because she was asked about prior injuries to her right shoulder rather than prior right shoulder problems.
·The circumstances around her change of general practitioner in the month following the incident on 9 December 2018 were not explained satisfactorily.
·Ms Bastawros gave Dr Flynn what I consider to be an untruthful account of when she became aware of the disciplinary matters. She told Dr Flynn it was not until the WorkCover conciliation process which is in clear contradiction of her evidence that she had been informed of the performance concerns when she received the letter of 22 November 2018.
66.In my opinion, Ms Bastawros did not establish the reliability of the histories she gave the medical witnesses whose opinions as to the nature and extent of her injury and of her capacity for work were premised on the accuracy of the history she provided. I find that Ms Bastawros gave an exaggerated account of the force of the incident itself to the medical witnesses as well as of the extent of her symptoms and restrictions.
67.I find, on balance, that the incident on 9 December 2018 caused the onset of pain of a momentary in nature, but that it did not result in injury involving lasting or permanent physiological change. Weighing up the whole of the evidence before me including my assessment of Ms Bastawros’ credit, I find it likely, on the balance of probabilities, that central to Ms Bastawros’ decision to stop work and pursue a WorkCover claim was the circumstance of her work performance issues including Japara’s formal findings of workplace breaches and the scheduled workplace counselling on 13 December 2018.
68.I am not persuaded, as Counsel for the plaintiff submitted, that I should be satisfied the plaintiff suffered injury due to the incident on 9 December 2018 on the basis of the evidence of the altered pathology of the right shoulder between the previous ultrasound findings of 2010 and those of the 17 December 2018 ultrasound. The former demonstrated thickened supraspinatus tendon without a tear with tendinopathy and the latter a tear within the supraspinatus tendon and subacromial bursitis.
69.Given my finding regarding Ms Bastawros’ credit and particularly in relation to the force of the incident itself and the delay in treatment, I am not persuaded that the pathology of the 17 December 2018 is attributable to the incident of 9 December 2018. In my opinion, Ms Bastawros would not have been able to complete her shift of 9 December 2018 and a full shift on 12 December 2018 (albeit with pain-killers given by the nurse) had she sustained a traumatic injury of the kind that could have caused the tear seen on the 17 December 2018 ultrasound. Whilst none of the medical opinions were subjected to cross-examination, on balance the balance of probabilities, I accept as more likely Dr Menz’s opinion in his subsequent report that the ultrasound of 17 December 2018 is explicable as age-related rotator cuff tearing and not associated with acute injury.
70.I am not satisfied, on the balance of probabilities, that Ms Bastawros suffered an injury arising out of the incident on 9 December 2018.
Whether, should I find that Ms Bastawros’ injury or injuries are a recurrence, aggravation, celebration, exacerbation, deterioration of any pre-existing injury or disease, her employment is a significant contributing factor to such injury or injuries
71.Given my finding that the incident on 9 December 2018 caused the onset of momentary pain but did not result in injury involving lasting or permanent physiological change, I am also not satisfied that the incident on 9 December 2018 was a significant contributing factor to any a recurrence, aggravation, celebration, exacerbation, deterioration of any pre-existing injury or disease
Whether Ms Bastawros is incapacitated for her employment and whether such incapacity is materially contributed to by any injury found to be compensable and whether Ms Bastawros is entitled to medical and like expenses
72.As I have found Ms Bastawros has failed to discharge the onus in relation to injury, I am not required to decide questions related to her incapacity for work or treatment.
Conclusion
73.I will hear from the parties, either orally or by way of submission, in relation to orders in respect of costs or ancillary matters.
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