Bhuiyan v Riverside Quay Proprietary Limited t/as BP

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bhuiyan v Riverside Quay Proprietary Limited t/as BP [2021] NSWPIC 490
APPLICANT:	Mohammad Alam Bhuiyan
RESPONDENT:	Riverside Quay Proprietary Limited t/as BP
MEMBER:	Jacqueline Snell
DATE OF DECISION:	30 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and permanent impairment compensation resulting from injury sustained to lumbar spine and cervical spine in the course of employment; alleged injury to the cervical spine placed in issue; by consent the applicant’s claim for weekly compensation was stood over pending determination of alleged injury of the cervical spine; Held – the applicant did not sustain injury to the cervical spine in the course of his employment as alleged; the applicant has no entitlement for remittal of his claim for assessment of permanent impairment as his claim for permanent impairment compensation does not reach the threshold prescribed by section 66(1) of the Workers Compensation Act 1987; the applicant’s claim for weekly compensation is to be listed for further teleconference in the Commission.
DETERMINATIONS MADE:	1. Award for the respondent in respect of applicant’s allegation of injury to his neck on 1 October 2007 in the course of employment with the respondent. 2. The applicant has no entitlement for remittal of his permanent impairment compensation claim to the President for referral for assessment of permanent impairment as his claim for permanent impairment compensation does not reach the threshold prescribed by s 66(1) of the Workers Compensation Act 1987.
DIRECTIONS MADE:	3. The applicant’s claim for weekly compensation, which was by consent stood over pending determination of the applicant’s allegation of injury to his neck on 1 October 2007 in the course of employment with the respondent, is to be listed for teleconference in the Commission at the earliest opportunity.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mohammad Alam Bhuiyan (Mr Bhuiyan) was employed by Riverside Quay Proprietary Limited t/as BP (BP). He was employed as a customer service person/console operator. Mr Bhuiyan has brought a number of previous proceedings relevant to injury sustained on 1 October 2007 the course of his employment with BP.

In previous proceedings brought in the former Workers Compensation Commission (4607/16) My Bhuiyan incorrectly alleged in part he sustained injury to his low back on 2 October 2007 as a result of lifting a gas bottle from a storage cage while in the employ of BP. In those proceedings he claimed weekly benefits payable between 4 June 2018 and 31 May 2016 and medical and related treatment. These previous proceedings were discontinued on 1 December 2016.
In subsequent previous proceedings brought in the former Workers Compensation Commission (6443/18) My Bhuiyan incorrectly alleged in part he sustained injury to his low back on 2 October 2007 as a result of lifting a gas bottle from a storage cage while in the employ of BP. In those proceedings Mr Bhuiyan claimed weekly compensation payable between 4 June 2018 and 29 December 2012, medical and related treatment, and 12% whole person impairment resulting from injury sustained to his lumbar spine, with the date of injury correctly particularised as 1 October 2017. These previous proceedings were discontinued on 9 April 2019.
In further subsequent previous proceedings brought in the former Workers Compensation Commission (3258/20) Mr Bhuiyan again incorrectly alleged he sustained injury to his low back on 2 October 2007, as a result of lifting a gas bottle from a storage cage while in the employ of BP. In those proceedings Mr Bhuiyan claimed weekly compensation payable between 4 June 2008 and 29 December 2012 and 12% whole person impairment (WPI) resulting from injury sustained to his lumbar spine, with the date of injury correctly particularised as 1 October 2007. These previous proceedings were discontinued on 16 September 2020.
In these current proceedings in the Commission Mr Bhuiyan alleges he sustained injury to his low back and neck on 1 October 2007 in the course of his employment with BP, as a result of lifting a gas bottle from a storage cage. He makes the following claim for compensation payable under the Workers Compensation Act 1987 (1987 Act):

(a) weekly compensation payable between 4 June 2008 and 16 January 2009, and
(b) 12% whole person impairment resulting from injury sustained to his lumbar spine and cervical spine.

Mr Bhuiyan’s claim for compensation is disputed and correspondence dated 6 August 2018[1] has been issued to him accordingly. Alleged injury to Mr Bhuiyan’s neck is placed in issue.
[1] Reply at page 53.
There is agreement between the parties that Mr Bhuiyan’s claim for weekly compensation will be deferred until such time as there is determination by the Commission as to whether or not Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP.

ISSUES FOR DETERMINATION

The parties agree the dispute arising that is the subject of conciliation/arbitration hearing on 25 October 2021 is that dispute that is relevant to the injury Mr Bhuiyan alleges he sustained to his neck on 1 October 2007 in the course of his employment with BP. The parties have agreed Mr Bhuiyan’s claim for weekly compensation will be deferred until such time as the Commission has made determination as to whether or not he sustained injury to his neck 1 October 2007 in the course of his employment with BP.
The parties agree the following issues are not disputed:

(a) Mr Bhuiyan sustained injury to his low back on 1 October 2007 in the course of his employment with BP, and
(b) the level of permanent impairment resulting from the injury Mr Bhuiyan sustained to his low back with which he is currently assessed is below the threshold prescribed by s 66 of the 1987 Act.

The parties agree that the following issues are disputed:

(a)    whether Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP;
(b)    whether Mr Bhuiyan suffered an incapacity for work between 4 June 2008 and 16 January 2009 resulting from injury sustained on 1 October 2007 in the course of his employment with BP, and
(c)    the level of permanent impairment resulting from injury sustained by Mr Bhuiyan on 1 October 2007 in the course of his employment with BP.

PROCEDURE BEFORE THE COMMISSION

Mr Bhuiyan’s claim for compensation came before me for teleconference on 24 September 2021. Mr Felizzi, solicitor, appeared for Mr Bhuiyan, and Mr Harris, solicitor, appeared for BP. Mr Lean, GIO was present, as was Mr Bhuiyan. By consent, the Application to Resolve a Dispute (ARD) was amended to (a) plead the injuries Mr Bhuiyan sustained in the course of his employment with BP occurred on 1 October 2007 and (b) to delete the pleaded injury description and insert the following injury description:
“The worker sustained a lower back and neck injury on 1 October 2007 as a result of lifting a gas bottle from a storage cage while in the employ of the Respondent.”
With Mr Bhuiyan’s claim unresolved at teleconference, these proceedings came before me for conciliation/arbitration hearing on 25 October 2021. On this occasion Mr McEnaney of counsel appeared for Mr Bhuiyan, instructed by Mr Felizzi. Mr Harris appeared for BP.
Mr Lean was present, as was Mr Bhuiyan.
Following my discussions with Mr McEnaney and Mr Harris 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.

EVIDENCE

Documentary Evidence

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

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

Mr McEnaney sought leave to adduce oral evidence from Mr Bhuiyan relevant to his ability to speak English at the time of his early reporting of complaint of injury and symptoms resulting from the incident on 1 October 2007 to his general medical practitioners, which was opposed by Mr Harris. A copy of the recording of Mr McEnaney’s submissions and those of Mr Harris are available to the parties.

Having considered the evidence and submissions made by Mr McEnaney and Mr Harris
I formed the view the proposed oral evidence of Mr Bhuiyan was necessary to enable me to properly determine the issue before the Commission, and accordingly leave was granted to Mr McEnaney to adduce oral evidence from Mr Bhuiyan relevant to the information he provided to his treating doctors at the time he sustained injury on 1 October 2007 and the level of his English speaking skills at the time.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Bhuiyan

Mr Bhuiyan provided a number of statements. His statements are dated 31 January 2020[2], 22 November 2018[3] and 8 August 2017[4].
[2] ARD at page 1.
[3] ARD at page 5.
[4] ARD at page 7.
In his most recent statement, which is made some 13 years after the incident occurring on
1 October 2007, Mr Bhuiyan said:
“On 1 October 2007, when working at BP, I was bending forward to retrieve a gas bottle that weighed about 15kg from a cage for a pregnant lady. Before retrieving this gas bottle from the cage, at the base of the cage there were empty gas bottles which
I was required to move out of the way so I could reach the gas bottle at the back of the cage. I did not put these gas bottles there.
When I bent over to pull the full bottle from the back of the cage with my right hand I heard a click in my lumbar spine and I could not stand. At that time I felt pain across my entire back, even in my neck.
I put the gas bottle on the ground after feeling this pain and the click in my lower back and the pain in my neck and I could not lift it any more. I then dragged it from the cage at the side of the cage and another patron at the BP helped the pregnant lady that wanted this gas bottle load it into her car.
…
That night I rang my manager and told her that I had sustained a back injury.”
Mr Bhuiyan explained he was taken by his manager to consult with Dr Lose who referred him for physiotherapy treatment, and he did not consult with his own general medical practitioner, Dr Johnson, relevant to the injury he sustained on 1 October 2007 until 2008. About this, he said:
“I note there is a gap between me consulting Dr Lose and reporting back and neck conditions to Dr Harry Johnson. In or around this time I was being made to see Dr John Lose at the request of BP.
I reported to Dr John Lose that I was having ongoing pain in my lower back and neck. At that time my English was not as good as it is now and Dr Lose, as I understand from having reviewed the Medical Certificates that he completed, did not record I was suffering cervical spine tenderness and pain when in fact I was suffering from that pain at that time.”
Mr Bhuiyan said he continued to work with BP up until he was made redundant in June 2008 and while his back and neck continued to “trouble” him, he worked without complaint. He explained he did not continually complain to Dr Johnson. He said “I tried to do the best I can with my injuries …”.

Mr Bhuiyan said that after he was made redundant he continued to receive treatment for his low back and neck injuries, and even when he returned to Bangladesh in January 2009 for familial reasons he continued with treatment. He said when he returned to Australia he continued with treatment, attending on Kevin Shapiro at the Eastern Suburbs Physiotherapy Centre and Professor Colebatch at Prince of Wales Hospital.
The statement made by Mr Bhuiyan on 22 November 2018 essentially canvassed his mental health problems. He said he attended on Dr Moore at Maroubra Medical Practice and
Dr Johnson at Bondi Medical Practice.
While in his initial statement (which is made just under 10 years after the incident occurring on 1 October 2007) Mr Bhuiyan essentially canvassed his mental health problems, he said of the injury he sustained on 1 October 2007:
“I was working from BP Connect – Woollahra as a Customer Service Representative.
I joined BP on 19 September 2006. I was working only limited hours while I was fit for work. I sustained an onsite back injury on 01/10/2007…”.
Mr Bhuiyan said he was receiving treatment for both his psychological and physical injuries from Dr Johnson and he was receiving physiotherapy treatment for his low back injury. At the time he made his statement Mr Bhuiyan said “I got back, neck, shoulder and muscle pain” and his list of “Long Term Medications” included “Voltaren 50mg ------tds”.

In oral examination Mr Bhuiyan said that when he migrated to Australia in 2001 his English was poor and while he was able to maintain conversation with customers at BP such conversation was limited to common sentences used in the taking of money and in greeting. As at 2007, while Mr Bhuiyan said he mostly spent time speaking in Bengali with his community, he said he spoke English while shopping. He said his written English was better than his spoken English. Relevant to his conversations with the medical practitioners at that time, Mr Bhuiyan said he spoke as much as he could in English but also used body language. He said at his initial consultation with Dr Lose and subsequent consultation with
Dr Johnson he had indicated by gesture he was in pain from his head to his low back. He said he placed his left hand at the bottom of his back and his right hand at the back of head to indicate that his pain was from “here to here”. He said in 2007 he did not know words like “lumbar spine”. He said since that time he has learned more English medical terminology.
In cross examination Mr Bhuiyan agreed he completed post graduate study at the University of Newcastle in or about 2004 after he came to Australia in 2001. He agreed he had also obtained employment at Officeworks in 2006 and had conversed in English. However, he said he was not required to communicate face to face a great deal in his role with Officeworks. Mr Bhuiyan conceded that in 2007 he knew the meaning of the word “neck”.

Incident report forms

A retail incident report form relevant to the incident occurring on 1 October 2007 is dated the same day[5] and an email dated 2 October 2007 also provided notification of the incident[6]. Both documents provided a description of injury occurring on 1 October 2007:
“At approx. 5:15pm – 5:20pm, one customer (lady) both 2 bags of ice and one 8.5kg gas bottle swap. I served her at the register and she asked me if I could take it out for her. I went to the gas cylinder cage. All empty cylinders were in the cage. There were 3 big cylinders (full 8.5kg) at the last end row in the cage. I took out the empty bottles from the cage and went to take out one full bottle from the back. When I pulled the bottle I hurt my back …”.
[5] Reply at page 4.
[6] Reply at page 5.

Correspondence

In a letter dated 20 January 2016[7] Mr Bhuiyan addressed perceived loss of earnings resulting from the injury he sustained on 1 October 2007. He relevantly wrote:
“On 01 October 2007, I sustained an onsite back injury at BP-Connect-Woollahra, whilst I was working there … As a result of my back injury BP has reduced my rostered hours and my pay fallen short.
…
[7] ARD at page 165.
… I lost four weeks of regular pay (….) from Officeworks because of my back injury.”

Treating medical evidence

Immex

Mr Bhuiyan attended on Dr Lose on 2 October 2007 and in the “Initial” WorkCover NSW Medical Certificate issued that day[8], Dr Lose provided diagnosis of “lumbar back pain” with the circumstances of injury described in terms of “bending forward to get a full gas bottle from cage”. There is no mention of injury to the neck in this certificate or in any of the subsequent certificates issued by Dr Lose on 4 October 2007, 8 October 2007, 15 October 2007, 22 October 2007 and 29 October 2007[9]. The certificate issued on 29 October 2007 was the “Final” certificate.
[8] ARD at page 73.
[9] ARD at pages 74 - 78.

Bondi Junction Medical and Dental

Mr Bhuiyan was already under the general medical care of Bondi Junction Medical and Dental Centre at the time he sustained injury on 1 October 2007. There are a number of WorkCover NSW Medical Certificates issued by the medical centre relevant to injury sustained by Mr Bhuiyan on 1 October 2007[10] and none of these certificates make mention of complaint of pain or injury to the neck.
[10] ARD at pages 65 – 72.
In his report dated 21 February 2010[11] Dr Johnson confirmed he obtained a history
Mr Bhuiyan had “sustained an injury to his lower back while lifting a heavy Gas bottle in his Employment by BP Connect”. Following physical examination Dr Johnson provided diagnosis of sprained lumbar back spasm. At the time of reporting Dr Johnson noted
[11] ARD at page 89.
Mr Bhuiyan’s last consultation relevant to his back injury was on 5 January 2009 and it is evident from this report Dr Johnson had not recorded any complaint of pain or injury to the neck during Mr Bhuiyan’s consultations with him throughout late 2007, 2008 and early 2009.
Mr Bhuiyan came to CT scan of his cervical spine on 18 September 2015 following referral from Dr Johnson with clinical history noted in terms of “[H]ead and neck pain”.
On 26 September 2017 Dr Johnson has provided a useful chronology relevant to
Mr Bhuiyan’s complaint of injury following the incident occurring on 1 October 2007[12]. The chronology evidenced no complaint of pain or injury to the neck until Mr Bhuiyan returned to Bangladesh, where he reportedly came under the orthopaedic care of Dr Aftab Uddin Bhuiyan during the period 16 January 2009 – 12 February 2015. Dr Johnson made the following entry relevant to this period of medical care in Bangladesh:
[12] ARD at page 98.
“Lumbar Discopathy,
Cervical Spine Syndrome,
- Shoulder. CT Lumber
Spine. Avoid repetitive
Bending, lifting.
Medication: Voltaren
50mg tds.
Physiotherapy.”

In a letter also dated 26 September 2017[13] Dr Johnson made reference to Mr Bhuiyan having sustained “a back injury while bending forward to lift a gas bottle from the eagton [sic] for a customer on 01/10/2007 at BP wollahra [sic]”.

Maroubra Medical Centre
[13] ARD at page

While the clinical records made available by the medical centre as at 30 November 2017[14] record no complaint of either low back or neck pain or injury, the notation “[W]ill return about back injury when was working with BP” is recorded at consultation on 27 November 2017.
[14] ARD commencing at page 102.

It is evident from these clinical records that Mr Bhuiyan had been under the long term care of Dr Sheehy, Endocrinologist/Geriatrician at Balmain Hospital, and there is no mention of any neck symptoms in her reporting save for comment “[H]owever he has had right neck and shoulder pain dating from early 2005” in a report dated 10 September 2006, which predates the incident occurring on 1 October 2007.

Dr Rahman

In a report dated 29 January 2015[15] Dr Rahman confirmed Mr Bhuiyan came under his psychiatric care in Bangladesh between 16 January 2009 and described Mr Bhuiyan as “moderately feeling well” after six years of treatment. There is no mention in Dr Rahman’s reporting of any injury other than psychological injury.

Eastern Suburbs Physiotherapy Centre
[15] ARD at page 86.

Mr Bhuiyan received physiotherapy treatment from Mr Shapiro, and in his report dated 23 March 2020[16] Mr Shapiro provided diagnosis, which included diagnosis of C5/6 facet joint arthropathy and wrote:
“Mohammad presented on the 25/10/19 with suprascapular and lumbar pain as a result of injuries sustained in a work related injury. This injury was sustained to his neck and back on the 1/10/07 after repetitive pulling and lifting heavy gas bottles form the cage at BP garage. BP referred him to their nominated doctor who failed to document his neck injury. Hence only the back injury was dealt with. Mohammad claims both his neck and back injury occurred on 1/10/07 and as a result his condition has worsened. The aggravating factors were prolonged sitting, standing and forward bending. He denies any previous neck and back problems prior to the incident.”
[16] ARD at page 80.

Independent medical evidence

Thomas O’Neill

Mr O’Neill had the opportunity to psychologically assess Mr Bhuiyan relevant to a claim for compensation resulting from primary psychological injury that is not before the Commission. Mr O’Neill provided a report dated 14 September 2007[17], which pre-dates the incident occurring on 1 October 2007. Of relevance is that Mr Bhuiyan does not seem to have required the assistance of an interpreter at the assessment with Mr O’Neill on 13 September 2007, during which time he provided a history of psychological injury and completed a Personality Assessment Inventory Revised for Mr O’Neill without any reported difficulty.

Professor Ehrlich
[17] Reply at page 112.

Professor Ehrlich had the opportunity to orthopaedically assess Mr Bhuiyan in his capacity as independent medical examiner relevant to his claim currently before the Commission. Professor Ehrlich provided a report dated 17 October 2008[18]. Again of relevance is that
Mr Bhuiyan does not seem to have required the assistance of an interpreter at assessment with Professor Ehrlich on 17 October 2008, during which time he provided a history of injury and complaint of symptoms without reported difficulty. In fact, Professor Ehrlich reported of Mr Bhuiyan:
“He described in great detail how he was serving a pregnant lady who had bought a gas cylinder and he was trying to handle these. He pulled one of these cylinders out from a stack of these, he felt pain in his back and thought there was also a click.”
[18] Reply at page 139.
Professor Ehrlich made no mention of Mr Bhuiyan making complaint of injury or pain in his neck during assessment and in summary provided opinion Mr Bhuiyan had sustained a back strain on 1 October 2007.

Dr Old Tree Clark

Dr Old Tree Clark had the opportunity to assess Mr Bhuiyan in his capacity as independent medical examiner but again his assessment was relevant to a claim for compensation resulting from primary psychological injury that is not before the Commission. He provided two reports dated 28 July 2015[19] and a report dated 20 February 2018[20], neither of which reference injury sustained by Mr Bhuiyan in the course of his employment with BP.

Dr Stephenson
[19] ARD at pages 29 and 37.
[20] ARD at page 43.

Dr Stephenson had the opportunity to assess Mr Bhuiyan in his capacity as independent medical examiner relevant to his claim for compensation before the Commission. He provided a number of reports. His initial report is dated 19 October 2015[21]. His subsequent reports are dated 23 April 2018[22] and 26 March 2021[23].
[21] ARD at page 16.
[22] ARD at page 23.
[23] ARD at page 27.
Relevant to Mr Bhuiyan’s background, Dr Stephenson described him as doing well at school and attaining a scholarship to obtaining a Bachelor’s Degree in computing before coming to Australia in 2001 where he obtained a Master’s Degree in Information Technology at the University of Newcastle in 2004.

In his initial report, Dr Stephenson noted his instructions were relevant to a low back injury sustained by Mr Bhuiyan on 1 October 2007. He recorded the circumstances of injury:
“He was bending forward to retrieve a gas bottle weighing 15kg. This full gas bottle was in a large metal cage. He bent forward to retrieve it from a customer who just returned an empty bottle.
He felt a click and experienced lumbar pain …”.

In his subsequent report dated 23 April 2018, Dr Stephenson again noted a history of
Mr Bhuiyan sustaining a low back injury in the incident occurring on 1 October 2007. Of Mr Bhuiyan’s presenting complaint on this occasion, Dr Stephen reported:
“[T]here is some neck pain which automatically goes away and he is not taking medication for the neck I was told.”
Following examination, Dr Stephenson reported “asymmetrical loss of range of motion but no objective findings of radiculopathy in the upper extremities”. He assessed Mr Bhuiyan as having sustained 5% WPI resulting from the injury he sustained to his neck. He also assessed Mr Bhuiyan as having sustained 7% WPI resulting from the injury he sustained to his back.
Relevant to the issue of causation of injury sustained by Mr Bhuiyan to his neck and low back and in response to specific questioning, Dr Stephenson merely said:
“There is a direct relationship between the condition found and the injuries sustained in the accident.”
In his supplementary report Dr Stephenson said in response to the issue of causation and specific questioning:
“In my opinion there is a direct causal relationship with the neck pain from October 2007 due to work-related injury to the cervical spine and your client had not suffered from this pain prior to the date of injury.”

Dr Walsh

Dr Walsh had the opportunity to assess Mr Bhuiyan in his capacity as independent medical examiner relevant to his claim for compensation before the Commission and provided two reports. The first is dated 20 October 2016[24] and the second is dated 31 July 2018[25].
[24] Reply at page 169.
[25] Reply at page 177.
In his initial report Dr Walsh provided a history of injury:

“On 1 October 2007, he was helping a customer exchange a gas bottle and as he opened the gated cage, he had to lean in to get a full bottle from the rear row and felt and heard a click in his back. He could not straighten and the customer had to take the bottle to put it in his car.”

At the time of initial assessment Mr Bhuiyan made complaint of back pain. While Dr Walsh reported that on examination of his neck Mr Bhuiyan resisted movement, he said “[O]bserved discretely, he appears to have normal movements of his neck”.
Following examination and review of the diagnostic imaging made available to him Dr Walsh provided opinion Mr Bhuiyan sustained a strain injury to his low back on 1 October 2007. He did not consider Mr Bhuiyan’s ongoing low back problems resulted from the injury sustained on 1 October 2007, and provided assessment of 0% WPI.
In his subsequent report Dr Walsh reported Mr Bhuiyan continued to complain of low back pain and on this occasion examination of his neck demonstrated “reasonable movements of his neck on bending his head forward and backward, turning to either side and tilting to either side”. Following examination, review of the further diagnostic imaging made available to him and consideration of the further records provided Dr Walsh provided opinion:
“This is as previously expressed in my report following consultation in October 2016. I note there were no complaints of neck pain until 2015 when he returned from Bangladesh. There is no indication from the GP records nor in the report of Dr Ehrlich that there was any injury to his neck in the course of the accident when lifting a gas bottle which was considered to be a strain of this back at that time.
The pathology of the spine is considered in my previous report and I doubt any injury to his neck at the time of the injury to his lower back, which I consider was a spraining injury or musculoligamentous strain and therefore the degenerative changes now are unrelated to that accident and not caused by the accident but merely age-related changes.
Therefore, I do not consider he has any impairment of the neck or back in relation to the injury in October 2007.”
In response to specific questioning, Dr Walsh said “[T]here was no injury to the neck and therefore there is no impairment as a result of the injury in 2007”.

Submissions

Mr McEnaney and Mr Harris made oral submissions, which I have considered. I am grateful to Mr McEnaney and Mr Harris for the assistance provided to me in this particular matter. A recording of the submissions is available to the parties.

Determination

Injury

Liability is not disputed for the injury Mr Bhuiyan sustained to his low back on 1 October 2007 in the course of his employment with BP. Liability is disputed for the injury Mr Bhuiyan alleges he sustained to his neck in the incident occurring that day.
Mr Bhuiyan has the onus of proving he sustained injury to his neck on 1 October 2007 in the course of his employment with BP. This is a question of fact in this matter and consideration of Mr Bhuiyan’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[26] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[26] [2008] NSWCA 246.
Section 4 of the 1987 Act defines injury to mean “personal injury arising out of or in the course of employment”. Roche DP considered the meaning of a personal injury in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[27] observing:
“The authorities establish that a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; CLR 286 at [39]). In other words, as stated in [81] it is “a sudden identifiable pathological change.”
[27] [2014] NSWWCCPD 47.
While I accept it is of significance in this particular matter there is no contemporaneous mention of Mr Bhuiyan having sustained injury to his neck on 1 October 2007 I am mindful that the issue of causation must be determined on the facts and that what is required is the common sense test explained in Kooragang Cement Pty Ltd v Bates[28].
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796).
The incident report form dated 1 October 2007 and an email dated 2 October 2007, both of which provided notification of the incident occurring on 1 October 2007 record Mr Bhuiyan said he injured his back in the incident. It did not record he said he had injured his neck.
When Mr Bhuiyan attended on Dr Lose on 2 October 2007, Dr Lose issued a WorkCover NSW Medical Certificate in which he provided diagnosis of “lumbar back pain”. There is no mention of an injury or pain in the neck in this medical certificate or any subsequent medical certificates issued by Dr Lose, with Dr Lose issuing a final certificate on 29 October 2007.
Mr Bhuiyan has come under the general medical care of Dr Johnson relevant to the injury he sustained on 1 October 2007. There are a number of WorkCover NSW Medical Certificates issued by Dr Johnson and none of the certificates make mention of complaint of pain or injury to the neck. In a report dated 21 February 2010, Dr Johnson recorded a history of injury sustained to the low back on 1 October 2007. He did not report a history of injury sustained to the neck. It is evident that throughout late 2007, 2008 and early 2009
Dr Johnson recorded no complaint of injury or pain in the neck. The first complaint of injury or pain in the neck appears to have been made after Mr Bhuiyan returned from Bangladesh where he had reportedly been under the care of an orthopaedic specialist during the period 16 January 2009 – 12 February 2015.
Professor Ehlrich assed Mr Bhuiyan on 17 October 2008, being just one year after the incident occurring on 1 October 2007, with Professor Ehlrich reporting Mr Bhuiyan “described in great detail” the circumstances of injury. He said Mr Bhuiyan reported pain in his back. He did not say Mr Bhuiyan reported pain in his neck.

Dr Stephenson assessed Mr Bhuiyan on 19 October 2015. Dr Stephenson reported the circumstances of injury in terms of Mr Bhuiyan experiencing “lumbar pain”. At subsequent assessment on 23 April 2018 Dr Stephenson again noted a history of Mr Bhuiyan sustaining a low back injury on 1 October 2007. Dr Stephenson did not report a history of injury or pain in the neck. While Dr Stephenson provided opinion there is “direct causal relationship” between Mr Bhuiyan’s neck pain and the incident occurring on 1 October 2017, he fails to provide diagnosis of the injury and grounds his opinion only on observation Mr Bhuiyan had not previously suffered from such pain in the neck.
In correspondence dated 20 January 2016, in which Mr Bhuiyan addressed a perceived loss of earnings as a result of the injury he sustained on 1 October 2007, Mr Bhuiyan only made reference to having injured his back on 1 October 2007. He made no reference to having injured his neck on 1 October 2007.
Dr Walsh assessed Mr Bhuiyan on 20 October 2016. Dr Walsh reported the circumstances of injury in terms of Mr Bhuiyan having “felt and heard a click in his back”. Dr Walsh did not report a history of injury or pain in the neck.
In his statement dated 8 August 2017, which is the closest in time to the incident occurring on 1 October 2007, Mr Bhuiyan said he had injured his back in the incident. He did not say he had injured his neck.
At this point it is instructive to note that in Malec v JC Hutton Pty Limited[29] Deane, Gaudron and McHugh JJ said at 642-643:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred”.
[29] [1990] HCA 20; (1990) 169 CLR 638.
The absence of identification of neck injury in the incident report forms and the absence of documentary evidence from either Dr Lose or Dr Johnson to support any complaint of neck injury sustained in the incident occurring on 1 October 2007 (either contemporaneous or at least during the period between the incident occurring on 1 October 2007 and when
Mr Bhuiyan returned to Bangladesh) is, I believe, a significant omission in Mr Bhuiyan’s case. Particularly so as Dr Lose and Dr Johnson provided treatment to Mr Bhuiyan for the injury he sustained to his low back on 1 October 2007.
Mr Bhuiyan explained his English was not as good in 2007 as it is now. He said that despite physical gesturing in which he indicated he had pain extending from his head to the bottom of his spine, Dr Lose failed to record Mr Bhuiyan was suffering “cervical spine tenderness and pain” at the time he consulted with him. Mr Bhuiyan said that he subsequently indicated the extent of his symptoms in like manner to Dr Johnson, who also failed to record
Mr Bhuiyan’s neck complaint.
However, I note Mr Bhuiyan migrated to Australia in 2001 and completed post graduate study at the University of Newcastle in or about 2004. He subsequently secured employment with both Officeworks and BP in 2006, employment which required him to converse in the English language Mr Bhuiyan attended independent psychological assessment with Mr O’Neill on 13 September 2007 without the apparent assistance of an interpreter and also attended independent orthopaedic assessment with Professor Ehrlich on 17 October 2008 without the apparent assistance of an interpreter. Of note too is that Mr Bhuiyan conceded under cross examination that in 2007 he had understood the meaning of the English word “neck”. Having considered the evidence, I accept Mr Harris’ submission that Mr Bhuiyan has now forgotten what the true situation was when he initially attended on both Dr Lose and Dr Johnson with complaint of injury following the incident occurring on 1 October 2007.

Noting (a) Mr Bhuiyan failed to report injury to his neck to BP on or soon after the incident occurring on 1 October 2007, (b) Mr Bhuiyan’s treating general practitioners from whom he was receiving treatment for injury to his low back between 1 October 2007 and when he returned to Bangladesh failed to record any complaint of injury or pain to the neck, (c) the lack of any diagnosis of neck injury from any treating or independent medical practitioner, (d) Mr Bhuiyan failed to refer to injury to his neck in his correspondence dated 20 January 2016 addressing a perceived loss of earnings resulting from injury sustained on 1 October 2017 (f) the length of time between the incident occurring on 1 October 2007 and the making of
Mr Bhuiyan’s statement on 31 January 2020 in which he provides comment about his neck injury, and (g) Mr Bhuiyan understood the meaning of the English word “neck” in 2007, I do not accept Mr Bhuiyan has discharged the onus of proof required of him and I am not satisfied Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP.

Capacity

The parties agreed Mr Bhuiyan’s claim for weekly compensation was to be deferred until such time as the Commission made determination as to whether or not Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP. This has now occurred and Mr Bhuiyan’s claim for weekly compensation is to be listed for teleconference in the Commission at the earliest opportunity.

Permanent impairment

Mr Bhuiyan makes a claim for permanent impairment compensation payable under s 66 of the 1987 Act for 12% WPI resulting from injury sustained to his lumbar spine and cervical spine on 1 October 2007. His claim for permanent impairment compensation is grounded in the assessment of Dr Stephenson of 7% WPI resulting from injury sustained to his lumbar spine and 5% WPI resulting from injury sustained to his cervical spine.

As I do not accept Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP, Mr Bhuiyan has not sustained work-related injury that results in a degree of permanent impairment of more than 10% and has no entitlement to receive permanent impairment compensation as provided by s 66 of the 1987 Act. Accordingly,
I decline to remit Mr Bhuiyan’s claim for permanent impairment to the President for referral to a Medical Assessor for assessment of whole person impairment.

SUMMARY

It is not disputed Mr Bhuiyan sustained injury to his low back on 1 October 2007 in the course of his employment with BP. I do not accept Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP.

The parties agreed Mr Bhuiyan’s claim for weekly compensation was to be deferred until such time as the Commission made determination as to whether or not Mr Bhuiyan sustained injury to his neck on 1 October 2007 in the course of his employment with BP. This has now occurred and Mr Bhuiyan’s claim for weekly compensation is to be listed for teleconference in the Commission at the earliest opportunity.
As Mr Bhuiyan has not sustained work-related injury that results in a degree of permanent impairment of more than 10% and has no entitlement to receive permanent impairment compensation as provided by s 66 of the 1987 there is no remittal for referral in relation to
Mr Bhuiyan’s claim for permanent impairment compensation.

Actions

Download as PDF Download as Word Document

Citations

Bhuiyan v Riverside Quay Proprietary Limited t/as BP [2021] NSWPIC 490

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Helton v Allen [1940] HCA 20

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Briginshaw v Briginshaw [1938] HCA 34

[2021] NSWPIC 490

30 November 2021