Elsaket v Elsaket Pty Ltd
[2021] NSWPIC 125
•19 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Elsaket v Elsaket Pty Ltd [2021] NSWPIC 125 |
| APPLICANT: | Mostafa Elsaket |
| RESPONDENT: | Elsaket Pty Ltd |
| MEMBER: | Mr Brett Batchelor |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act as a result of fractured skull and brain injury suffered in a fall from a roof, undisputed by the respondent employer, and injury to the left upper extremity (shoulder), disputed by the respondent, suffered in that fall; the respondent submitted that the left shoulder injury claimed by the applicant was the revelation of an earlier injury to the shoulder and not the result of the fall; examination of pre and post-injury medical evidence; Held- finding that the applicant’s claim of injury to the left shoulder on the date of the fall made out; referral of the matter to Medical Assessors for assessment of WPI as a result of brain injury and fractured skull, and injury to the left upper extremity (shoulder), on the day of the fall. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his left upper extremity (shoulder), namely acromio clavicular subluxation, subacromial impingement of the left shoulder, arising out of or in the course of his employment on 17 August 2016. 2. The matter is remitted to the President for referral to Medical Assessors for assessment of whole person impairment as a result of: (a) fractured skull and brain injury, and (b) injury to his left upper extremity (shoulder), namely acromio clavicular subluxation, subacromial impingement of the left shoulder, arising out of or on the course of employment on 17 August 2016. 3. The documents to be referred to the Medical Assessors are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 12 April 2021 and attachments; (d) Application to Admit Late Documents dated 3 May 2021 and attachments, and (e) this Certificate of Determination and Statement of Reasons. 4. The Medical Assessor assessing whole person impairment as a result of the fractured skull and brain injury is to act as the lead assessor. |
STATEMENT OF REASONS
BACKGROUND
Mostafa Elsaket (the applicant/Mr Elsaket) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of his employment by Elsaket Pty Ltd (the respondent) on 17 August 2016. On that day Mr Elsaket was on the roof of a building cleaning gutters. At the completion of that work he was photographing the work he had carried out when he fell to the ground below. His last memory is of taking a photo, and next memory is waking up in the intensive care unit of St George Hospital.
Mr Elsaket suffered a fractured skull causing brain injury in the fall and was placed in an induced coma. He remained in hospital for about eight days. He claims that he also injured his left shoulder.
As a result of the brain injury, the applicant suffers from nerve palsy affecting the left side of his face and other cognitive and physical disabilities. These are not in issue in the current proceedings. The respondent’s insurer, AAI Limited trading as GIO (GIO) disputes that the applicant suffered injury to his left shoulder in the fall.
The applicant was independently medical assessed by Dr S M Habib, surgeon, on 24 January 2018 at the request of his solicitor. Dr Habib produced a report dated 25 January 2018[1] in which he stated that the applicant’s left shoulder condition is entirely the result of the fall on 17 August 2018 during the course of his work. In a separate report of dated 25 January 2018[2] Dr Habib gave his assessment if 13% whole person impairment (WPI) as a result of injury to the left upper extremity on 17 August 2016.
[1] Application to Resolve a Dispute (the Application) p 68.
[2] Application to Admit Late Documents (AALD) lodged by the applicant dated 12 April 2021 p 19.
The applicant was also independently medically assessed on 15 June 2020 by Dr Dudley O’Sullivan, consultant neurologist, who produced a report of that date[3] containing an assessment of 28% WPI as a result of the traumatic brain injury suffered on 17 August 2016. In that report Dr O’Sullivan combined his assessment with the assessment of Dr Habib in accordance with the Combined Values Tables found in the Guides to the Evaluation of Permanent Impairment, fifth edition of the American Medical Association (AMA 5) which resulted in a final assessment of 37% WPI.
[3] AALD dated 12 April 2021 p 3.
On 4 August 2020 the applicant’s solicitor forwarded a letter of claim to the GIO attaching, inter alia, the reports of Dr Habib and Dr O’Sullivan, and claiming on behalf of Mr Elsaket lump sum compensation in respect of 37% WPI.[4]
[4] Application p 19.
On 7 October 2020 the applicant was independently medically examined by Dr Anthony Smith, surgeon, at the request of the solicitor for the respondent. Dr Smith produced a report dated 22 October 2020[5] in which he expressed the opinion that the problem with the applicant’s left shoulder dated back prior to the work incident of 17 August 2016, and on clinical examination, there was nothing objectively wrong with the left shoulder.
[5] Reply p 86.
On 7 December 2020 GIO issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it raised issues in respect of:
(a) an ultrasound investigation of the applicant’s left shoulder undertaken on 11 September 2015;
(b) an injury to the applicant’s left shoulder on 12 November 2015, and
(c) particulars previously requested by the GIO which had by then been provided and which required further investigation.
The proceedings were the subject of a telephone conference on 30 March 2021 at which the respondent was granted leave pursuant to s 289A(4) of the 1998 Act to put in issue injury to the left upper extremity (shoulder) on 17 August 2016, directions were made for the lodgement and service of any further evidence on which the parties sought to rely and the matter was stood over for conciliation/arbitration on 10 May 2021.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the applicant sustained injury to his left shoulder on 17 August 2016.
PROCEDURE BEFORE THE 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 conciliation/arbitration hearing on 10 May 2021 conducted via telephone conference. Mr A Parker of counsel appeared for the applicant briefed by
Mr A Frisina. The applicant was present with his counsel and solicitor. Mr S Grant of counsel appeared for the respondent briefed by Mr S Lott.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents;
(b) Reply and attached documents;
(c) AALD dated 12 April 2021 lodged by the applicant with the following attachments:
(i)further supplementary statement of the applicant dated 9 April 2021;
(ii)corrected report of Dr Dudley O’Sullivan dated 15 June 2020;
(iii)email chain requesting Dr O’Sullivan’s report be corrected;
(iv)Dr Habib’s report dated 25 January 2018 (x2);
(v)SIRA Search Results dated 14 December 2020;
(vi)authority to Hall & Wilcox – Mostafa Elsaket – 10 December 2021 [sic, 2020], and
(vii)MRI report - Dr Ramesh Cuganesan dated 1 April 2021;
(d) AALD dated 3 May 2021 lodged by the respondent with letter of Dr Sayeed Hassan dated 28 April 2021 attached.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
Submissions
The submissions of the parties were recorded a transcript of which is available on request. The following is a summary of the parties’ submissions.
Applicant
The applicant submits that it is a remarkable coincidence that the pre-existing shoulder injury or condition, from which the respondent alleges he suffered in fall, revealed itself at the time of the fall.
The applicant submits that there is congruency between the opinions of two of the medical experts, Dr Smith and Dr Habib, when Dr Smith expresses the opinion that if the applicant suffered a serious injury to his left shoulder in the fall, there would have been significant symptoms within 24 to 48 hours of the accident on 17 August 2016. The applicant submits that he suffered a serious head injury in the fall with a significant Glasgow Coma Score, but nevertheless complained of left shoulder pain at St George Hospital within the time frame nominated by Dr Smith.
The applicant submits that he should be accepted as a witness of truth, and his credibility and reliability as a witness emerges from his two witness statements in evidence. These are dated 16 May 2017[6] and 18 February 2021[7]. In his second statement Mr Elsaket states that he was not aware that he had a left shoulder injury in 2015 and has no recollection of it, nor does he have any recollection of undergoing an x-ray or ultrasound at the time. He raises the possibility that Dr Hassan may have been confusing him with his brother who did suffer a left shoulder injury around that time.
[6] Application p 3.
[7] Application p 12.
The applicant accepts the evidence from Dr Hassan as to the entries in the doctor’s clinical notes in respect of an injury in 2015 but submits in any event it is of no consequence in respect of his current claim, relying on what the NSW Court of Appeal stated in Government Insurance of New South Wales v Aboushadi[8]; that is, a defendant must accept an injured plaintiff as it finds him or her. The applicant submits that his previous left shoulder injury is of no significance whatsoever to the current claim.
[8] [1999] NSWCA 396 at [21] and [22]
The applicant examines the clinical notes of the general practitioner, Dr Hassan, recording entries in November 2015 of complaints of left shoulder pain, noting that the doctor at that time noted a full range of motion in the left shoulder. The applicant then refers to his pre-accident duties both at work, where he was earning a significant income in carrying out physically demanding work, and outside of work where as a young fit man he was engaged in strenuous sporting and leisure activities. The applicant submits that one would expect complaint of pain from time to time from such activities.
The applicant submits that, relying on what Roche DP stated in Galluzzo v Commonwealth Bank of Australia[9], that a “personal injury” is “a sudden and ascertainable or dramatic physiological or disturbance of the normal physiological state” but that to constitute a personal injury, such a physiological change or disturbance “may be as simple as a bruise or soft tissue strain”. The applicant submits that this is a low threshold to be satisfied, and that once it is as it should be in this case, it is a matter for a Medical Assessor to determine and assess the consequences of such injury.
[9] [2014] NSWWCCPD 82 at [31].
The applicant draws attention to the complaints of left shoulder pain recorded in the clinical notes of the Intensive Care Unit of St George Hospital in the days following his admission[10], recorded by a physiotherapist treating him for his injuries on 21 November 2016[11], recorded by a speech pathologist treating him on I and 8 December 2016[12] and as recorded by Dr Alex Tzannes the Trauma Outpatient Clinic on 12 January 2017[13]. The applicant also underwent an x-ray of his left shoulder in St George Hospital on 18 August 2016, the day after the fall[14].
[10] Application pp 215-217 and 229.
[11] Application p 510.
[12] Application pp 472 and 476.
[13] Application p 112.
[14] Application p 170.
The applicant also notes that in the records of the treating practitioner, Dr Hassan, there is a 10 month gap between the time the applicant last consulted the doctor on 17 November 2015 in respect of his left shoulder and seeking a clearance to return to work, and the first post injury consultation with the doctor on 26 August 2016 following his release from St George Hospital[15].
[15] Application p 528.
The applicant submits that none of the treating doctors say that he did not injure his shoulder in the fall, and that Dr Habib has a correct history, questioning why the doctor needed a history of pre-existing shoulder pain when the applicant was asymptomatic in that shoulder pre-injury.
The applicant postulates that if Dr Smith had been supplied with the history of post-injury complaint of left shoulder pain, his opinion on the causation of the left shoulder condition may well have been different.
Relying on the authorities of Paric v John Holland Constructions Pty Ltd[16] and Hancock v East Coast Timber Products Pty Ltd[17], the applicant submits that he has established on the evidence a “fair climate” for acceptance of the proposition that he injured his left shoulder in the fall of 17 August 2016. In short, he had no problems with his shoulder at the time of the accident, engaging in many strenuous work and non-work activities, and has experienced numerous problems with his left shoulder since the accident.
[16] (1985) 62 ALR 85; 59 ALJR 844.
[17] [2011] NSWCA 11.
Respondent
Conceding that the applicant was involved in a significant fall on 17 August 2016 and that he complained of left shoulder pain as recorded in the hospital notes after his fall, the respondent poses the simple question, did the applicant injure his left shoulder in the fall? Similarly the respondent does not cavil with what is said in the authorities relied upon by the applicant, including those referred to in [26] above. It is not the case, according to the respondent, that just because the applicant was involved in the fall that he hurt his shoulder.
The respondent draws attention to what was said by Roche DP in Albury City Council v Gunton[18], citing the observations of Evatt and Shepard JJ in Commonwealth of Australia v Beattie[19]. That is, “It does not follow that in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury.” At [162] in Gunton, Roche the Deputy President also states the obvious that each case must depend on its own facts before he goes on to deal with the facts of the case before him.
[18] [2011] NSWWCCPD 68 (Gunton) at [161].
[19] [1981] FCA 88; )1981) 35 ALR 369 at 378.
The respondent submits that what occurred to the applicant on 17 August 2016 in respect of his left shoulder was simply the revelation of the existing problem that he had with that shoulder rather than its genesis.
The respondent draws attention to the manner in which the applicant presented his case to the Commission. That is, initially in his first statement he said that before commencing work for AGC Roofing, the company to which the respondent company contracted the applicant’s services, he had not suffered from any injuries apart from a laceration to his hand. Later, when confronted with the evidence of his consultations with Dr Hassan in 2015, he said in his second statement that he was not aware of any left shoulder injury that he may have suffered at the time and was not aware of undergoing a left shoulder x-ray on 12 November 2015 or an ultrasound at that time. He suggested that it may have related to his brother Mohamed Elsaket but could not say definitively that it was not him. He simply had no recollection of previously injuring his left shoulder.
The respondent then refers to the correspondence between the respondent’s solicitors and the applicant’s solicitors in respect of attempts to obtain medical information and records, in which the respondent submits that the applicant was “not helpful.” This correspondence includes a letter from the applicant’s solicitors to the respondent’s solicitors dated 15 September 2020[20] supplying particulars in response to a request from the respondent’s solicitors dated 14 August 2020. The answer “No” was given to the question “Has your client experienced any similar symptoms before the incidents that are the subject of the permanent impairment claim and if so, when and in what circumstance”.
[20] Reply p 20.
The respondent also refers to a letter from the applicant’s general practitioner to its solicitors dated 28 April 2021[21] which puts beyond doubt that it was Dr Hassan who saw the applicant Mostafa Elsaket on 11 September 2015 when he presented with acute left shoulder pain after lifting heavy bins at work. The respondent also refers to an “ED Discharge Referral” dated 10 November 2015[22] in which it is stated that the applicant presented to the Emergency Department of the Liverpool Health Service, reporting of being knocked over by a car at low to moderate speed, punched and kicked in the head and torso and bitten on the chest wall. Soft tissue injuries only and nothing more significant were found on examination.
[21] AALD dated 3 May 2021 p 2.
[22] Application p 324.
The respondent also refers to the entries in the clinical notes of Dr Hassan dated 11 and 12 November 2015[23] where the applicant is recorded as attending on Dr Hassan on 11 November 2015 in respect of an alleged assault and being taken by ambulance to Liverpool Hospital, and a follow up attendance the next day in which left shoulder pain is recorded, but full range of motion also noted on examination.
[23] Application p 527.
In the circumstances of this history of events preceding the fall on 17August 2016 the respondent raises the question as to how any reliance can be placed on the accuracy of the applicant’s evidence in respect of his symptoms in the period from 2015 to 2016 when he was involved in the fall, a period of less than 12 months.
The respondent also notes that the applicant informed Dr O’Sullivan that his past health was excellent. The respondent submits that as Dr Habib had no knowledge of the 2015 incident in which the applicant was involved, the doctor’s opinion cannot be accepted. It is clear, according to the respondent, that the applicant’s symptoms in his right shoulder were in existence before the fall from the roof. The events in which the applicant was involved in 2015 created those symptoms.
Turning to the report of Dr Smith, the respondent submits that with a person with such a cloudy history in respect of his left shoulder condition, it is not surprising that the doctor gave the opinion he did as to causation of the claimed left shoulder injury.
The respondent also refers to the QBE Connect First Contact Notification form[24] in respect of injury to the left shoulder on 10 September 2015 when the applicant is recorded as unloading a container on that date, as a result of which he was diagnosed with left shoulder bursitis.
[24] Reply p 2.
The respondent also notes from the clinical note of Dr Hassan dated 26 March 2019[25] that the applicant was apparently involved in another incident affecting the left shoulder on or shortly before 26 March 2019 as he was pulling a heavy jet ski trailer at home.
[25] Application p 543.
The respondent submits that there should be an award in its favour in respect of the claim for injury to the left shoulder on 17 August 2016, and that the matter should be referred to a Medical Assessor for assessment of WPI as a result of the head injury suffered on that day.
Applicant in response
The applicant strongly refutes that the respondent can place any reliance on the 2019 incident referred to in [38] above, noting that the respondent has not raised this incident in any dispute notice in respect of the applicant’s claim. This incident should be ignored. There has been no break in the chain of causation of the left shoulder injury between 17 August 2016 and the present time.
The applicant notes that Dr Habib was provided with the progress reports of Dr Hassan prior to preparing his report dated 25 January 2018, a matter conceded by the respondent, and submits that Dr Hassan was aware of the contents of those reports before preparing his report. This provides more support for the submission that the evidence in this matter provides a fair climate for the acceptance of a shoulder injury occurring on 17 August 2016 as claimed. However the applicant submits that the symptoms experienced by the applicant at St George Hospital provide the strongest evidence of injury to the shoulder on that day. There has been no cessation of the symptoms since that event.
FINDINGS AND REASONS
The applicant’s evidence
The applicant submits that he should be accepted as a truthful, credible and reliable witness. He says that he was not aware that he had a left shoulder injury in 2015 and has no recollection of it, nor does he have any recollection of undergoing an x-ray or ultrasound at the time. He raises the possibility that Dr Hassan may have been confusing him with his brother who did suffer a left shoulder injury around that time. In his further supplementary statement dated 9 April 2015[26] Mr Elsaket says that he is aware that there is a QBE Connect First Contact Notification in the Reply of the insurer (the document referred to in [37] above) which shows that he reported an injury to his left shoulder on 14 September 2015, with the reported injury having occurred on or about 10 September 2015. The applicant says further that, whilst he does not deny that the notification is in relation to him, he simply cannot recall any event or injury to his left shoulder occurring in September 2015 and has no recollection of such an injury at all.
[26] AALD dated 9 April 2021 p 2.
The applicant’s brother, Mohamed Elsaket, has put on a statement dated 5 February 2021[27] in which he says that he has similar features to his brother and that they are often mistaken for one another. He tells of dislocating his left shoulder in a professional boxing match on or about 29 August 2014 and being taken to Bankstown Hospital for treatment. He was off work for about six months. He and his brother both attended the same medical practice, Doctors on Macquarie, where the family doctor Dr Sayed Hassan is located. Mr Mohamed Elsaket then says that he did injure himself at work on a jobsite in Campbelltown when he was moving a skip bin, had a lot of shoulder pain and consulted Dr Hassan. He was referred to a specialist and had surgery at Fairfield Hospital. He goes on to say that there have been times when he has visited Dr Hassan who has confused him with his brother Mostafa. They look very similar and are about the same height and build. He says that his brother is about eight months younger than him. I observe that this stated age gap between the brothers must be greater than this.
[27] Application p 15.
The letter from Dr Hassan to the respondent’s solicitors dated 28 April 2021 referred to in [32] above puts beyond doubt that it was the applicant and not his brother Mohamed who attended on the doctor on 11 September 2015, reporting that he presented with acute left shoulder pain after lifting heavy bins at work. Dr Hassan notes his compliance with RACGP standards to ensure that practitioners have the correct patient health record for each consultation. When he says in that letter that “This protocol seems to be congruent with that of the radiologist, who has confirmed the patient undergoing the procedure was, in fact, Mostafa Elsaket”, he is referring to the radiologist who performed the left shoulder ultrasound on the applicant on 11 September 2015 at the request of Dr Hassan, and whose report is in evidence[28]. The radiologist found bunching of the bursa overlying the supraspinatus on abduction, with abduction limited to approximately 70 degrees. The conclusion was that this was in keeping with impingement. Bursal thickening overlying the supraspinatus was found to be in keeping with bursitis.
[28] Application p 108.
The applicant visited Dr Hassan again on 12 September 2015 when the result of the ultrasound was available[29]. The doctor’s note on musculo-skeletal examination was:
“Lt.Shoulder not red, no laceration, no effusion, not swollen, no contusion,
no restriction, not hot, no abrasion, no crepitus, not tender, no fracture,
full ROM.”Conservative treatment was advised.
[29] See Dr Hassan’s clinical note at Application p 526.
There is a further report from a radiologist dated 12 November 2015 reporting on an x-ray of the applicant’s left shoulder on that day[30]. The “CLINICAL HISTORY” in that report is “Assault and injury to left shoulder”. The “FINDINGS” are:
“The left shoulder is enlocated. No acute displaced fractures. The acromiohumeral interval is reduced which may represent rotator cuff pathology. Acromioclavicular joint. clavicle and visualised adjacent left-sided ribs appear intact.”
[30] Application p 109.
Dr Hassan’s clinical notes record two further consultations with the applicant on 16 and 17 November 2015[31]. On 16 November 2015, the applicant gave a history of left shoulder pain and restriction of movements. The full clinical note is as follows:
“History:
Came back with Lt.Shoulder pain and restriction of movements,
Musculo-Skeletal: Joint pain. No joint stiffness. No deformity. No joints
welling. No restricted movement. No polyarthralgia. No polymyalgia. N
o back pain. No neck pain. No sciatica.
Affected joints: L. Shoulder
Actions:Diagnostic Imaging requested: U/S - Shoulder (L)”[31] Application pp 527 and 528.
The full clinical note for the consultation on 17 November 2015 is as follows:
“History:
Patient came in for a clearance for work,
Had a work related Lt.shoulder injury on 11/9/2015,
Feels better now,
wants to get back to work,
Examination:
Musculo-Skeletal:
Left, shoulder: not red, no laceration, no effusion, not swollen, no contusion, no restriction, not hot, no abrasion, no crepitus, not tender, no fract
ure, full ROM.
Management:
Conservative Treatment”
The applicant relies on the findings of Dr Hassan on 16 and 17 November 2015 in support of its submission that there was nothing significantly wrong with his left shoulder leading up to the fall, notwithstanding his inability to recall these visits to the Dr Hassan and the radiologists, and the reasons for such visits. The applicant poses the rhetorical question, did this injury reveal itself in the fall from the building on 17 August 2016?
The next recorded visit of the applicant to Dr Hassan is on 26 August 2018, 11 days after the fall when the applicant attended with his father.[32] Dr Hassan took a detailed and lengthy history of the six meter fall from a two storey building and the sequalae of the head injury, but there does not appear in that clinical note any reference to the left shoulder.
[32] Application p 528.
The respondent does not submit that the applicant’s credibility is in issue. Rather it submits that, having regard to the applicant’s inability to recall these matters, how can the Commission be satisfied that the applicant’s evidence that he was symptom free in the left shoulder leading up to the fall on 17 August 2016 be accepted? I accept that this a reasonable proposition. The applicant on the other hand points to the very active lifestyle in which the applicant engaged, both at work and during his leisure time, leading up to the fall. That is also a valid submission.
I think that although as pointed out by the applicant in submissions, corroboration of his evidence is not required, because of the doubts raised by the respondent as to the reliability of the applicant’s recall, evidence other than that of the applicant in respect of the left shoulder condition before and after the fall must be carefully scrutinised.
Injury
The first post-injury reference to the left shoulder in Dr Hassan’s clinical notes appears to be on 3 February 2017 when the applicant saw the doctor “…for medical certificate for insurance,..” He gave a history of being capable of performing restricted duties and:
“Lt.Shoulder pain
Rotator cuff tendinopathy,
Awaiting Cortisone injection,”Under “Management”, Dr Hassan notes discussion about return to restricted duties work.[33]
[33] Application p 530.
The applicant submits that his evidence in respect of the period after the accident is crucial. This appears at [63], [81] and [96]-[98] of his statement dated 16 May 2017 and at [28] of his statement dated 18 February 2021. In his first statement Mr Elsaket states that he injured his shoulder in the fall, that he has no strength in his left shoulder, has difficulty lifting his shoulder up and at that stage had not seen an orthopaedic specialist but had seen a chiropractor, that his left shoulder joint clicked whenever he moved it and that he had difficulty using his left arm and lost strength in it. In his second statement the applicant says that he continued to have a lot of weakness and loss of strength in his left shoulder as he did previously, and that there was no change in the shoulder condition.
During the time immediately after the accident, the applicant was attending on the Intensive Care Unit of St George Hospital, the Trauma Outpatients Clinic, on a physiotherapist and a speech pathologist. These attendances are referred to at [22] above, and the respondent acknowledges them. It does not deny that that the applicant was suffering pain in his left shoulder after the accident but says that this pain is a revelation of the injury to the left shoulder, or condition therein, which occurred or arose in 2015. The applicant says that this is a remarkable coincidence, given the severity of the fall on 17 August 2016.
The pain the applicant in his left shoulder immediately after the accident was significant. On 18 August 2016 Mr Elsaket complained of 10/10 pain in his left shoulder in the Intensive Care Unit. Later that same day there is a record of left arm pain with minimal movement due to shoulder pain. On 21 November 2016, the physiotherapist recorded constant left shoulder pain on the anterior shoulder, down to the biceps and along the supraspinatus and upper neck region, which ranged to pain of 9/10 on movement. On 1 and 8 December 2016 the speech pathologist recorded left shoulder pain and on 12 January 2017 Dr Tzannes in the Trauma Outpatients Clinic recorded that the applicant’s sleep was still disturbed, partly as a result of left shoulder pain. Later, on 19 April 2017 an occupational therapist, Ling Wang recorded in her Initial Rehabilitation Assessment Report that the applicant’s goal was to improve his left shoulder function to normal within six months[34].
[34] Application pp 503 and 507.
I accept that the applicant experienced significant pain in his left shoulder immediately after the fall on 17 August 2016 and continuing thereafter as summarised above. I also accept that as at the last recorded pre-injury consultation with Dr Hassan on 17 November 2015 he had a full range of movement in the shoulder and no other significant signs of injury therein as recorded by Dr Hassan and noted at [48] above. The applicant attended on the doctor on that day to obtain a clearance to return to work following injury to the left shoulder on 11 September 2015. I also accept that the applicant pursued an active lifestyle, both at work and in his leisure time, leading up to his fall in 17 August 2016. I think that the work that Mr Elsaket was performing on the day he fell would have been difficult if not impossible if he were still suffering from a serious condition in his left shoulder on that day. He was on the roof of a building, cleaning gutters, having gained access thereto by the placement of a ladder which he used to climb onto the roof. He fell six metres onto the ground below, onto concrete, suffering a serious head injury.
The applicant was examined by Dr Habib on 24 January 2018. At the commencement of his report dated 25 January 2018 the doctor lists the documents viewed, including the clinical records of St George Hospital and brain injury rehabilitation unit, Liverpool Hospital brain rehabilitation unit, medical correspondence from various specialists including neurosurgeon staff trauma specialist, psychiatrist and speech pathologist. He also refers to imagery
reports from St George Hospital dated 17 August 2016 by Dr Chan and imagery report of
Dr N Ganesan dated 25 November 2016. This last mentioned document appears to be an ultrasound scan of the left shoulder referred to by Dr Habib later in his report, demonstrating subacromial/subdeltoid bursal inflammation/bursitis, widening of acromio clavicular joint with joint space widening. The x-ray of the left shoulder showed no fracture.Dr Habib diagnosed the applicant as having injured his left shoulder in the fall, primarily the acromio clavicular joint subluxation and subacromial space pathology with resultant impingement syndrome. He noted that the applicant’s left shoulder management had been non-existent.
Dr Smith in his report dated 22 October 2020 records a history of the fall which is consistent with other evidence thereof. He refers to the attendances of the applicant on Dr Hassan in September 2015, and an x-ray of the left shoulder on 12 November 2015, consequent to an assault and injury to the left shoulder. He also refers to an Emergency Department attendance at Liverpool Hospital on 4 March 2019 with a left shoulder problem consequent to pulling a heavy trailer that morning, feeling a tearing sensation in his left shoulder. That incident will be discussed hereunder.
Dr Smith refers to the ultrasound of the left shoulder dated 25 November 2016, referred to above at [58] and commented upon by Dr Habib, and to the findings and diagnosis of Dr Habib in his report dated 25 January 2018. He says that the problem that the applicant has with his left shoulder would appear to date back prior to the work incident of 17 August 2016, and that there appears to be more than one traumatic episode. He goes on to say that in the event that the shoulder was significantly injured in the accident of 17 August 2016, there would have been significant symptoms within 24 to 48 hours of the accident on that day.
Dr Smith says that, based on his clinical examination, there is nothing objectively wrong with the applicant’s left shoulder. Based on the most recent ultrasound undertaken on 2 April 2019, subsequent to his consultation with Dr Habib, there is no abnormality in the left shoulder on this examination. He then refers to the fact that bursitis generally, and mild bursitis in particular, is so common as to be within normal limits. He says that the recent radiology does not describe any significant gap between the acromion and the clavicle, so the ultrasound appearances of a gap are probably incorrect.
As noted in [40] above, the applicant submits that whatever happened in 2019 should be ignored and has no bearing on the issue of whether or not he suffered an injury to his left shoulder on 17 August 2016. I agree. If injury to the left shoulder is accepted, it will be a matter for the Medical Assessor to determine the degree of WPI, if any, that the applicant has sustained as a result of injury on 17 August 2016. That assessor will have all of the material in evidence in the current proceedings before him and make the assessment on the basis of that material, the history provided by the applicant and his findings on clinical examination of Mr Elsaket.
I find that the applicant suffered injury to his left shoulder in the fall of 17 August 2016. For the reasons I have summarised above, I accept the opinion of Dr Habib in preference to that of Dr Smith. It is quite apparent that the applicant did have significant symptoms in his left shoulder within the time frame set by Dr Smith following the fall on 17 August 2016. Mr Elsaket continued to complain of these symptoms to the doctors and other health workers who treated him well into 2017. He says in his latest statement that he continues to experience significant problems with the left shoulder. I find that there has been no break in the chain of causation of his shoulder symptoms between the date of the fall and the present time. This was not raised by the respondent in resisting the applicant’s claim that he injured his left shoulder on 17 August 2016. It will be a matter for the Medical Assessor who assesses the left shoulder injury to determine what, if any, degree of WPI assessed is as a result of injury to, or condition in, the left shoulder from something other than what occurred on 17 August 2016.
The injury to the left shoulder is as diagnosed by Dr Habib, namely, acromio clavicular subluxation, subacromial impingement of the left shoulder.
The matter will be referred to a Medical Assessor to determine WPI as a result of the head injury suffered by the applicant on 17 August 2016 and injury to the left upper extremity (shoulder) on that day.
SUMMARY
The applicant sustained injury to his left upper extremity (shoulder), namely acromio clavicular subluxation, subacromial impingement of the left shoulder, arising out of or in the course of his employment on 17 August 2016.
The matter is remitted to the President for referral to Medical Assessors for assessment of WPI as a result of:
(a) fractured skull and brain injury, and
(b) injury to the left upper extremity (shoulder), namely acromio clavicular subluxation, subacromial impingement of the left shoulder,
arising out of or in the course of his employment on 17 August 2016.
The document to be referred to the Medical Assessors are:
(a) the Application and attachments;
(b) Reply and attachments;
(c) AALD dated 12 April 2021 and attachments;
(d) AALD dated 3 May 2021 and attachments, and
(e) this Certificate of Determination and Statement of Reasons.
The Medical Assessor assessing WPI as a result of the fractured skull and brain injury is to act as the lead assessor.
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