El Ahmar v Swan Bedding

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 pleaded an alleged consequential condition to the left shoulder, however, this pleading was abandoned at the hearing and the matter proceeded solely on the basis of an alleged frank injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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.
The parties attended a hearing on 27 April 2023. At the hearing, the applicant was represented by Mr McManamey of counsel instructed by Mr Chadwick. The respondent was represented by Ms Goodman of counsel instructed by Mr Or.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his left shoulder.

The applicant has the onus of proving he suffered an injury to his left shoulder in the fall at issue. In this matter, he alleges he suffered a frank injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) which states:
“In this Act: injury means
(a) Personal injury arising out of or in the course of employment.”
There is no suggestion the applicant suffered an aggravation to an underlying disease process or degenerative condition, nor is it suggested that the nature and conditions of his employment caused the alleged by way of a disease process.
The authorities make it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”: see Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro). In Castro, a temporary physiological change in the body’s functioning by way of atrial fibrillation or an irregular rhythm of the heart, without pathological change, was found not to constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as Administrator of the Estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertain or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro) at [138]).” (At [60])
In this matter there, is no issue as to the mechanism of the alleged injury. In his statement, the applicant sets out the circumstances of the fall at paragraph 5 as follows:
“On 1 March 2017, in the course of my employment with Swan Bedding, I was standing on a pallet in the roof compartment area attempting to manually and independently lift and relocate a mattress when I fell three metres to the ground, landing on my left hip and on my left shoulder. I immediately experienced severe pain in my left shoulder, left hip and, in my low back. I was attended at the scene by ambulance officers in conveyed to Liverpool Hospital where I was admitted. Following examination and x-rays, I was diagnosed with a fracture of the greater trochanter of the left hip. I was treated conservatively and discharged on 3 March 2017 on crutches to the care of my general practitioner, Dr A Zaki.”
The applicant’s version of events is supported by the ambulance records which record a fall of between 2 and 10 metres and a history of the applicant falling on his left side from a height of four metres. The applicant was recorded as suffering throbbing left hip pain and pain in the left neck of femur.
Upon being conveyed to Liverpool Hospital, the applicant was admitted and on 2 March 2017, an X-ray of the applicant’s left shoulder was undertaken against a background of a clinical history of the fall at issue and “pain left shoulder”. The findings of the left X-ray were:
“No fracture of the left shoulder seen. No fracture of the left humerus noted. No evidence of glenohumeral dislocation. No fracture around the left elbow joint seen. Increased sclerosis in the proximal left humeral shaft and medial cortex is of uncertain significance.”
Mr McManamey submitted the findings of the X-ray were sufficient for the applicant to prove the presence of a left shoulder injury. That is, there was plainly complaint of pain in the left shoulder in the immediate aftermath of the fall at issue together with a pathological change noted on the radiological scan by way of increased sclerosis in the proximal left humeral shaft and medial cortex.
For the respondent, Ms Goodman noted that for many months after the fall at issue, a number of treating doctors made no mention of the applicant’s left shoulder issue. The respondent’s case is the single complaint in the immediate aftermath of the fall against a background of referrals for other body system injuries to many specialists and other treatments suggest in fact there was no issue with the applicant’s left shoulder and therefore, no injury. Ms Goodman noted that there was no further mention of left shoulder issue in the hospital notes from Liverpool Hospital nor in the discharge referral. There was no mention by Dr Laird, treating orthopaedic surgeon of problems with the applicant’s left shoulder when Dr Laird reported to Dr Zaki on 21 March 2017, however, I note Dr Laird is a foot and knee specialist rather than one specialising in shoulder issues.
Ms Goodman also noted that Dr Zaki’s referral to the physiotherapist made no mention of the applicant’s left shoulder, however, I take note of Mr McManamey’s submission that at that particular point in time, the applicant’s treating physicians and practitioners were focused on the applicant’s cervical spine as the cause of his ongoing issues rather than the left shoulder being a source of any problems.
With respect, that submission is well made. It is apparent from examining the medical material, including but not limited referrals to Dr Laird, the physiotherapist, the clinical records of Dr Zaki and the reports and notes of treating specialist Dr Giblin that the emphasis initially was on the applicant’s issues relating to his cervical spine as the cause of his left upper extremity issues.
It was not until Dr Herald’s examination of the applicant in the course of his examination on 23 March 2022 that a finding of positive impingement signs and tenderness over the greater tuberosity of the left shoulder were present. It is noteworthy there is no medical opinion which contradicts that finding. Moreover, Dr Herald’s report quite appropriately lists in detail the number and amount of treatment to the applicant’s cervical spine and notes that the focus was plainly on that body system for many years. Dr Herald noted that in July 2017, the applicant was referred for MRIs of his back and was sent for review of his neck by Dr Giblin. An MRI of the applicant’s neck was undertaken in October 2017 which revealed the presence of a C5/6 disc injury together with C6 neural impingement, which then became the focus of the applicant’s treatment and was considered as the cause of his left upper extremity symptoms. The applicant then received a prolonged course of conservative treatment by way of physiotherapy and hydrotherapy culminating in referral to pain specialist, Dr Manohar. The applicant has had between 20 to 30 admissions to the pain clinic together with nerve blocks associated with his cervical spine and lumbar spine together with his left shoulder.
Mr McManamey submitted, and I accept, that it is not uncommon for symptoms in an upper extremity to be attributed to problems with the cervical spine, particularly when there is an overlap of issues between the two body systems. That is not to criticise the applicant’s treating practitioners, who understandably focused on the potential for severe consequences of cervical spine problems should they be present.
Ms Goodman criticised Dr Herald’s report on several bases, including the reference to Dr Manohar having treated the applicant for shoulder problems. She contended that the reference in Dr Manohar’s records to the applicant suffering neck pain extending to his shoulder does not mean a shoulder injury was present. Whilst I accept this of itself may be the case, it does not exclude the presence of a shoulder injury.
Ms Goodman submitted that Dr Herald’s history of the applicant initially suffering pain in his left shoulder following the fall issue was in fact incorrect, however, I find against that submission noting the applicant underwent a left shoulder X-ray the day after the fall which in my view is strongly suggestive of him suffering some symptomology in that body system in the immediate aftermath of the fall as noted in the X-ray report itself, and is supportive of the applicant’s statement evidence of suffering pain in the left shoulder immediately following the fall, evidence which I accept.
Ms Goodman referred the Commission to the decision in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 and submitted the applicant had not discharged his onus of proving the presence of an injury in circumstances where there is only an isolated complaint in the immediate aftermath of the injurious event.
On balance, I did not accept that submission, noting the applicant’s statement evidence which I accept, together with the finding of some pathology on the X-ray, albeit of uncertain aetiology together with the findings of Dr Herald upon examination. I reiterate, the applicant’s treating specialists focused on his cervical spine as the cause of his left upper extremity issues, however, their doing so does not preclude a finding of injury in the left upper extremity together with the presence of injury to the cervical spine.
Ms Goodman also noted that neither Dr Woo, orthopaedic surgeon who saw the applicant in 2020 on behalf of the applicant’s solicitors nor the respondent’s independent medical examiner (IME) Dr Panjratan had any complaint made by the applicant of left shoulder problems. She submitted this was further evidence of no left shoulder injury and submitted there was no corroborative evidence of such an injury.
I note, however, that in civil proceedings, there is no requirement for corroboration: see Chanaa v Zarour [2011] NSWCA 199 at [86]. Nevertheless, the fact the applicant underwent an X-ray the day after the fall at issue is, in my view, corroboration of complaint of left shoulder injury. As Mr McManamey noted in reply, there is unequivocal contemporaneous evidence the applicant suffered a fall of approximately three metres and in the immediate aftermath of that fall, complained of pain and issues in his left shoulder sufficiently serious to warrant radiological examination.
Ms Goodman also relied on the ambulance records not referencing the applicant’s alleged left shoulder injury. I note, however, those records also indicate the applicant complained of neither lumbar spine nor cervical spine injury, yet those body systems are now accepted as having been injured in the fall at issue. In other words, the mere fact the ambulance records do not record the applicant as complaining of left shoulder pain in circumstances where he was clearly suffering a severe fracture to his hip/femur is not determinative of whether he suffered an injury to his left upper extremity (shoulder) in the fall at issue.
On balance, adopting a commonsense evaluation of the evidence, I am satisfied on balance of the presence of a left shoulder injury. There is a consistent complaint of pain in the applicant’s left arm, shoulder, and indeed his neck. Whether the applicant’s treating practitioners treated his left upper extremity issues as having arisen as a result of a cervical spine injury is not determinative of the presence or otherwise of a left shoulder injury. Dr Herald’s clinical examination found the presence of a left shoulder impingement.
I do not criticise Dr Panjratan or Dr Rimmer, IMEs for the respondent for failing to assess the applicant’s left upper extremity in circumstances where the treating material suggests there was injury only to the cervical and lumbar spines, however, their failure to do so essentially means the field is vacant save for Dr Herald’s examination of the left upper extremity which reveals the presence of the left shoulder impingement. I note, however, that Dr Rimmer’s report post-dates that of Dr Herald and he specifically states he has “no opinion regarding Dr Herald’s opinion”.
On balance, I am satisfied that the lay and medical evidence establishes the presence of an injury to the applicant’s left upper extremity (shoulder) and accordingly, that body system will also be the subject of a referral to a Medical Assessor along with the other body systems which the respondent concedes were injured in the subject fall.

SUMMARY

For the above reasons, the Commission will make the findings and orders are set out on Page 1 of the Certificate of Determination.

[2023] NSWPIC 264

6 June 2023