El Ahmar v Swan Bedding - [2023] NSWPIC 264

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	El Ahmar v Swan Bedding [2023] NSWPIC 264
APPLICANT:	Bilal El Ahmar
RESPONDENT:	Swan Bedding
Member:	Cameron Burge
DATE OF DECISION:	6 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; whether the applicant suffered injury to his left shoulder in addition to other accepted body systems in a fall from approximately 3 metres at work; Held – the applicant suffered an injury to his left shoulder in the accepted fall; there was uncontested evidence of complaint of left shoulder pain and referral for X-Ray one day post-fall; although the applicant’s treating doctors thereafter focused on his cervical spine injury as the cause of his left arm issues, that fact does not preclude the presence of a left upper extremity injury as found on clinical examination by Dr Herald, in circumstances where the applicant gave accepted statement evidence of ongoing left shoulder and arm issues since the fall; matter remitted to President of the Personal Injury Commission for referral of all claimed body systems to a Medical Assessor for determination of the applicant’s permanent impairment.
determinations made:	1. The applicant suffered an injury in the course of his employment with the respondent on 1 March 2017 to his cervical spine, lumbar spine left lower extremity and left upper extremity. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment suffered as a result of the injuries referred to in [1] above in accordance with the following: Date of Injury: 1 March 2017 Body systems referred: cervical spine, lumbar spine, left lower extremity (leg), left upper extremity (shoulder). Method of Assessment: Whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application for Determination and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

On 1 March 2017, Bilal El Ahmar (the applicant) was standing on a pallet in the roof compartment area of the premises of his employer, Swan Bedding (the respondent) while attempting to lift and relocate a mattress. In doing so, the applicant fell approximately three metres to the ground, landing on his left hip and shoulder.
The applicant brings these proceedings seeking payment of permanent impairment compensation for injuries to his cervical spine, lumbar spine, left leg and left shoulder. Injury to the latter body system is disputed, however, the remaining body systems are accepted as having been injured and will be the subject of referral to a Medical Assessor for an assessment of whole person impairment. The question for determination in these proceedings is whether the left shoulder will also be referred for assessment.

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant suffered an injury to his left shoulder in the fall at work on 1 March 2017.
In the alternative to the alleged frank injury, the applicant originally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El Ahmar v Swan Bedding

Details

AGLC: El Ahmar v Swan Bedding [2023] NSWPIC 264
Case: [2023] NSWPIC 264
Decision Date: 6 June 2023

CaseChat Overview and Summary

The case of El Ahmar v Swan Bedding was brought before the Personal Injury Commission of New South Wales, where the applicant, Mr El Ahmar, sought compensation for permanent impairment sustained during a workplace accident. The dispute centred around whether Mr El Ahmar suffered an injury to his left shoulder in addition to injuries to other body systems, which were accepted to have occurred in a fall from approximately 3 metres at work. The court was tasked with determining whether the applicant's left shoulder injury was part of the injuries sustained in the fall and should be considered for compensation.

The primary legal issue before the court was whether the applicant's left shoulder injury was caused by the fall and should be included in the assessment of his permanent impairment. The court needed to examine the evidence provided regarding the left shoulder injury, including the applicant’s complaints of pain, referrals for medical imaging, and the focus of subsequent medical treatment. It was essential to discern if the applicant’s medical treatment, which predominantly addressed his cervical spine injury, negated the presence of a concurrent left upper extremity injury.

The court found that there was uncontested evidence of the applicant’s complaint of left shoulder pain and a referral for an X-ray one day after the fall, indicating an injury to his left shoulder. Although the treating doctors subsequently concentrated on the cervical spine injury as the cause of the applicant’s left arm issues, this did not preclude the existence of a left upper extremity injury. The court relied on the clinical examination by Dr Herald, which identified the injury, and the applicant's own statement evidence of ongoing left shoulder and arm issues since the fall. Consequently, the court concluded that the left shoulder injury should be considered in the assessment of the applicant’s permanent impairment.

The matter was remitted to the President of the Personal Injury Commission for a referral of all claimed body systems to a Medical Assessor to determine the applicant's permanent impairment. The court's decision ensured that the applicant's left shoulder injury would be appropriately assessed and included in the overall evaluation of his condition and compensation entitlement.

Orders