Fathullah v Ashcroft Plumbing Services Pty Ltd
[2021] NSWPIC 406
•12 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Fathullah v Ashcroft Plumbing Services Pty Ltd [2021] NSWPIC 406 |
| APPLICANT: | Weria Fathullah |
| RESPONDENT: | Ashcroft Plumbing Services Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 12 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for medical and related treatment; the respondent disputed the applicant sustained work-related injury to his low back and disputed the applicant’s claim for proposed consultation with a neurosurgeon and proposed consultation with a physiotherapist; Held – the applicant sustained injury to his low back in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition with his employment with the respondent being the main contributing factor to injury; the applicant has an entitlement to costs associated with the proposed consultation with a neurosurgeon payable under section 60 of the Workers Compensation Act 1987 resulting from the injury he sustained to his low back; award for the respondent relevant to the applicant’s claim for proposed consultation with a physiotherapist. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his low back in the incident occurring on 30 January 2020, such injury being in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition with his employment with the respondent being the main contributing factor to injury. 2. The proposed consultation with a neurosurgeon is reasonably necessary treatment resulting from the injury the applicant sustained to his low back on 30 January 2020 and the respondent is to pay the cost associated with that proposed consultation in accordance with s 60 of the Workers Compensation Act 1987. 3. Award for respondent relevant to the proposed consultation with a physiotherapist. |
STATEMENT OF REASONS
BACKGROUND
Weria Fathullah (Mr Fathullah) was employed by Ashcroft Plumbing Services Pty Ltd (Ashcroft), working as a plumber. Mr Fathullah sustained injury on 30 January 2020 during the course of his employment with Ashcroft.
Mr Fathullah alleged he sustained injury to his left upper extremity, right upper extremity (right shoulder) and low back in the incident occurring on 30 January 2020.
Mr Fathullah also alleged he sustained consequential injury to his right shoulder as a result of overuse, consequential injury to his lumbar spine “due to altered mechanics”, and consequential injury in the nature of Central Serous Retinopathy (CSR) resulting from cortisone injection treatment administered to treat his left elbow injury.
In his proceedings before the Commission Mr Fathullah claimed medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987, particularised as follows:
(a) $170 payable in respect of a consultation with an ophthalmologist, and
(b) $4,710 payable in respect of right shoulder arthroscopic cuff repair, consultation with a neurosurgeon and a physiotherapist.
Ashcroft declined the Mr Fathullah’s claim for medical treatment expenses, with notices dated 15 September 2020[1], 20 August 2020[2] and 29 June 2021[3] issued to Mr Fathullah in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
[1] Application to Resolve a Dispute (ARD) at page 4.
[2] Reply at page 1.
[3] ARD at page 403.
ISSUES FOR DETERMINATION
The parties agreed that the following issues are not disputed:
(a) injury sustained by Mr Fathullah to his left upper extremity;
(b) injury sustained by Mr Fathullah to his right shoulder;
(c) consequential injury in the nature of CSR;
(d) consultation with Ophthalmologist particularised in the sum of $170, and
(e) proposed surgical treatment in the nature of arthroscopic rotator cuff repair right shoulder is reasonably necessary treatment for the injury Mr Fathullah has sustained to his right shoulder.
The parties agree that the following issues remain in dispute:
(a) alleged injury sustained by Mr Fathullah to his low back in the incident occurring on 30 January 2020 (noting that it was clarified by Mr Fathullah at the conciliation/arbitration hearing that the allegation of injury to his low back was restricted to the injurious event occurring on 30 January 2020);
(b) proposed consultation with a neurosurgeon particularised in the sum of $250[4], and
(c) proposed consultation with a physiotherapist particularised in the sum of $80[5].
[4] ARD at page 398.
[5] ARD at page 399.
PROCEDURE BEFORE THE COMMISSION
These proceedings came before me for teleconference on 29 July 2021. Ms Azer, solicitor appeared for Mr Fathullah. Mr Tuxford, solicitor, appeared for Ashcroft with Ms McClellan observing. Mr Burley and Mr Hudson from EML were present, as was Mr Fathullah.
As Mr Fathullah’s claim did not resolve at teleconference, it came before me for conciliation/arbitration hearing on 10 August 2021. Mr Malouf of counsel appeared for Mr Fathullah, instructed by Mr Issa, solicitor, and Ms Azer. Ms Hogan of counsel appeared for the Ashcroft, instructed by Ms McClellan. Mr Lacsina and Ms Feraset from EML were also present. Mr Fathullah was present for only part of the listing.
Following discussions with counsel, 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.
During the arbitration hearing of these proceedings Mr Fathullah’s telephone line was disconnected and he was unable to be reconnected. As it was evident the arbitration hearing would not conclude during the afternoon of 10 August 2021, I issued directions the parties lodge and service written submissions, which has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents,
(c) Application to Admit Late Documents dated 23 July 2021 lodged on behalf of Ashcroft and attached documents,
(d) written submissions dated 17 August 2021 lodged on behalf of Ashcroft, and
(e) written submissions dated 23 August 2021 lodged on behalf of Mr Fathullah, and
(f)written submissions in reply dated 2 September 2021 lodged on behalf of Ashcroft.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows.
Statement of Mr Fathullah
In his statement dated 17 May 2021[6] Mr Fathullah relevantly said that prior to the incident occurring on 30 January 2020 he had not experienced a problem with his low back.
[6] ARD at page 1.
Dr Fathullah described attending a job site on 30 January 2020 where he was required to assist with the lifting of a piece of bitumen, which had become stuck on the tray of a truck. Mr Fathullah described this piece of bitumen referred as being “especially large and heavy” and estimated it was “around 700mm x 1000m x 200mm in size”. Mr Fethullah explained:
“I proceeded to grab one corner of the bitumen with both of my hands. To lift the piece of bitumen with both my hands, I had to bend down in a squat posture and then push myself upwards while lifting the piece of bitumen with both hands.
As I did this, the corner I was grabbing suddenly broke away and became airborne. When this occurred, I felt a jarring pain in both my arms including my right shoulder and my low back. The piece which had become airborne then landed on around my left bicep and elbow. I felt severe pain around my left elbow and arm when this occurred, and most of my focus was to this region”.
Mr Fathullah consulted with Dr Nguyen at Prestons Family Doctors on the day of the incident. He said that to the best of his recollection while his complaints to Dr Nguyen included complaint of low back pain, his main complaint was about his left arm pain as that is the body part on which the bitumen had landed. Mr Fathullah returned to that same medical centre the following day and on this occasion he consulted with Dr Vincent who referred him to Liverpool Hospital Emergency Department (ED), with Mr Fathullah coming to surgical treatment of his left elbow on 5 February 2020.
Mr Fathullah said he suffered severe pain following surgical treatment and he was prescribed Tramadol initially and Endone subsequently. Of his medication Mr Fathullah said:
“The medication did assist, and I felt relief from pain to my left arm, as well as my right arm and low back. The medication was calming and sedating, so I was not fully conscious of the extent of the pain in my left arm, right arm and low back”.
Mr Fathullah said that over the following weeks and months he felt increasing right shoulder and low back pain, and while he said that to the best of his recollection he also complained to Dr Vincent about such pain prior to June 2020, he confirmed that “around this time” he reported his back pain to his treating orthopaedic specialist Dr Nouh and to his treating physiotherapist at Austral New Age Physiotherapy.
Mr Fathullah explained that when trying to ease off his pain medication, his right shoulder and low back pain became “more apparent”. Mr Fathullah said he was upset with Dr Vincent for not recording his complaint of right shoulder and low back pain and as a consequence changed his general medical care from Prestons Family Doctors to Dr Siddiqui, who practices out of All Care Carnes Hill Medical Centre.
Treating medical evidence
Prestons Family Doctors
The clinical records of Prestons Medical Centre (as at 21 August 2020)[7] confirm that when Mr Fathullah consulted with Dr Nguyen on 30 January 2020 Dr Nguyen made no note of Mr Fathullah sustaining injury to his low back in the workplace incident occurring that day with the focus of the consultation being on the left biceps tendon rupture sustained by Mr Fathullah.
[7] ARD at page 36.
On 12 February 2020 Mr Fathullah complained that Tramadol was not helping with his pain and he was provided with a prescription for Endone. On review on 24 February 2020 Dr Vincent noted Mr Fathullah to be “getting better” and requesting more Endone.
As at 28 April 2020, Mr Fathullah continued to complain of pain, with medication noted at that point in time as Voltaren and Panadeine Forte.
Dr Laird
Mr Fathullah came to surgical repair of his left biceps rupture under the care of Dr Laird on 5 February 2020, and in the ED Discharge Referral relevant to Mr Fathullah’s attendance on 31 January 2020 the injury Mr Fathullah sustained to his left biceps and elbow on 30 January 2020 is referred to as an “isolated injury”.
Austral New Age Physiotherapy
Clinical records of Austral New Age Physiotherapy[8] confirm that on 28 April 2020 Jason Tran relevantly recorded:
“S: Patient felt lower and upper back pain today, L sided pain and compensations.
O: Very tight and lower back muscles”.
[8] ARD at page 263.
A Orebro Musculoskeletal Pain Questionnaire dated 26 June 2020 noted that at that time Mr Fathullah suffered pain in his lower back and his arm, with his “current pain problem” having been present for between three to six months.
Allcare Carnes Hill Medical Centre
The clinical records of Allcare Carnes Hill Medical Centre (as at 12 May 2021)[9] confirm that when Mr Fathullah consulted with Dr Siddiqui on 4 May 2020 his complaints relevantly included low back pain. Dr Siddiqui made the following note:
[9] ARD at page 160.
“work related lower back pain
going to legshe thinks that it started at the time of injury at work in february 2020”
Following clinical examination on this occasion, Dr Siddiqui referred Mr Fathullah for MRI scan and review.
In his letter of referral to Dr Abraszko dated 1 September 2020[10] Dr Siddiqui described Mr Fathullah’s low back problem in the following terms:
“… work related injury to the lower back more than 6 months ago with ongoing back pain”.
Dr Nouh
[10] ARD at page 398.
While Mr Fathullah came under the orthopaedic care of Dr Nouh relevant to his ongoing problem with his left elbow, in his letter dated 26 June 2020[11] Dr Nouh noted of Mr Fathullah that since the workplace incident occurring on 30 January 2020 Mr Fathullah had suffered low back pain “which he reported to his work at the time”.
[11] ARD at page 342.
Independent medical evidence
Dr Powell
Mr Fathullah was assessed by Dr Powell in his capacity as independent medical examiner. In his report dated 14 September 2020[12] Dr Powell reported that in the workplace incident occurring on 30 January 2020 Mr Fathullah felt an “immediate onset of pain in the left cubital fossa”, was subsequently diagnosed with a rupture of the distal biceps insertion and came to surgical treatment under the orthopaedic care of Dr Laird on 5 February 2020. With Mr Fathullah continuing to remain symptomatic following surgery, Mr Fathullah was referred to orthopaedic review by Dr Nouh, who following investigation recommended continuing conservative treatment. Dr Powell reported that in June 2020 Dr Nour noted a presence of Mr Fathullah’s right shoulder symptoms, and with Mr Fathullah also complaining of low back pain, he was referred for MRI of his lumbar spine on 31 August 2020, which reportedly demonstrated disc disease at L4/5 and L5/S1 without focul disc protrusion or neural compromise.
[12] Reply at page 20.
While at assessment Mr Fathullah’s complaints included complaint of low back pain, which Dr Powell recorded “had been present for the last six weeks”, Dr Powell appeared to have restricted his clinical examination of Mr Fathullah to his left elbow and right shoulder. However, Dr Powell provided opinion in response to specific questioning as follows:
“In the lumbar spine he has evidence of degenerative disc disease.
In relation to the lumbar spine, these symptoms have developed recently without any specific precipitation incident and are not related to the workplace incident on 2/2/20 which was to the left elbow.
In relation to the lumbar spine the investigations have demonstrated the presence of pre-existing degenerative disc disease.”.
Dr Khan
Mr Fathullah was assessed by Dr Khan in his capacity as independent medical examiner and in his initial report dated 4 November 2020[13] Dr Khan described the incident occurring on 30 January 2020 in the following terms:
“At the job site, part of the road bitumen had been cut out to do the plumbing work.
Large pieces of bitumen were lifted on to a tipper truck by another contractor.
…
The smaller bits of bitumen were able to tipped out from the tipper but a large and heavy piece became stuck on the tray of the truck. This piece was about 700mm x 10000mm x 400mm in size.Mr Fathullah was assisting in lifting this piece of bitumen out of the tray of the truck. He had to bend down in a squat posture and lifting the large piece of bitumen with both his hands when a piece of the bitumen broke off suddenly and fell onto his left arm in the biceps region and also felt a pain in his back and right shoulder. He apparently reported these symptoms at work”.[13] ARD at page 12.
Dr Khan noted Mr Fathullah came to surgical repair of his biceps tendon under the orthopaedic care of Dr Laird on 5 February 2020, with a post-operative development of minor infection at the surgical site requiring antibiotic treatment. Dr Khan relevantly reported that the pain Mr Fathullah was initially experiencing in his low back was “apparently masked due to strong analgesics prescribed by his doctors for his left elbow injury”. Dr Khan noted diagnostic imaging of Mr Fathullah’s lumbar spine “revealed disc pathology at L4/5 and L5/S1 levels” and that treatment of Mr Fathullah’s low back condition remained conservative “with medication”.
Following clinical examination, which included examination of Mr Fathullah’s low back, Dr Khan provided diagnosis in terms of “musculoligamentous and facet joint trauma and disc trauma of the lumbar spine”. Dr Khan accepted the injury Mr Fathullah sustained to his low back appeared “to have been masked by the more severe injury to his biceps and left elbow and the strong analgesics he required and the symptoms came to the fore when his analgesics were reduced”. Dr Khan explained:
“The mechanism of his back injury appears to have been due to abnormal axial loading in abnormal posture while in a squatting position with his arms lifted overhead to lift the slab of bitumen form the back of the tipper truck”.
Dr Khan provided opinion Mr Fathullah would require intermittent use of analgesic and anti-inflammatory medication “for a period of three years or more depending on his future progress”.
Relevant to Dr Powell’s opinion referred, Dr Khan disagreed with Dr Powell’s opinion and confirmed his previously expressed opinion that Mr Fathullah sustained injury to his low back in the workplace incident occurring on 30 January 2020. Dr Khan provided reason for such opinion in that he made reference to Dr Noah’s report of 26 June 2020, Mr Fathullah’s expressed belief at assessment that the symptoms in his low back were initially masked by the medication he was taking for his left elbow injury and sequelae and Dr Kahn’s previously expressed opinion as to the mechanism of injury occurring on 30 January 2020. Dr Khan also said:
“Similarly, the degenerative changes noted on scans of the lumbar spine appear to have been totally asymptomatic prior to his injury with no record of any disability or impairment or problems with his back prior to the subject incident”.
In his supplementary report dated 18 May 2021[14] following review of Mr Fathullah’ statement dated 17 May 2020 (which I assume to be reference to Mr Fathullah’s statement 17 May 2021), the medical records of Prestons Family Doctors and the musculoskeletal pain questionnaire dated 26 June 2020 and noting the first contemporaneous complaint of low back pain by Mr Fathullah “appears to have been recorded on 26 June 2020”, Dr Khan said in response to specific questioning:
[14] ARD at page 27.
“It is my opinion that your client injured his low back on 30 January 2020.
…
I noted Mr Fathullah reported the injury to his back at the time of the incident. It would appear according to Mr Fathullah that his treating gp at that time may have ignored his complaints of pain the back and right shoulder at that time and concentrated more on the very painful condition of his left upper arm injury to his biceps. The symptoms from his back injury also got masked by the use of strong analgesics and did not cause any significant symptoms until the analgesics were weaned off and he started doing physical activities thereafter. I have also noted that there is no history or previous problems or symptom involving his back in the accompanying documentation.
…
It is my opinion that the pre-existing lumbar spine condition as noted on the MRI scan of 1 September 2020 had been totally asymptomatic in the past prior to the subject incident of 30 January 2020 and the incident of 30 January 2020 has been the main contributing factor to the aggravation, exacerbation, acceleration or deterioration of the condition”.
Submissions
Ms Hogan of counsel made oral submissions until such time as Mr Fathullah’s telephone line became disconnected and with the operator unable to re-connect Mr Fathullah, I issued directions that the parties lodge and serve written submissions, which has now occurred directions. A copy of the recording of Ms Hogan’s initial submissions is available to the parties, as are copies of Ms Hogan’s further submissions and those of Mr Malouf.
I have carefully considered counsels’ submissions and am grateful to counsel for the assistance provided to me in this matter.
Determination
Injury
Mr Fathullah alleged he sustained injury to his low back in the workplace incident occurring on 30 January 2020 and this alleged injury is disputed by Ashcroft.
Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment, including the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation of the disease.
Mr Fathullah has the onus of proving he sustained injury to his low back in the course of his employment with Ashcroft, and that his employment with Ashcroft is the main contributing factor to injury. This is a question of fact and consideration of his statement and all the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[15] McDougall J stated at [44]:
“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).”
[15] [2008] NSWCA 246.
Relevant to the issue of causation in Kooragang Cement Pty Ltd v Bates[16], Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[16] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
As to what constitutes an aggravation of a disease process, in Federal Broom Co Pty Ltd v Semlitch[17] there is discussion by Windeyer J:
“The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
[17] [1964] HCA 34; 110 CLR 626 at [369].
In AV v AW[18] the Commission considered the meaning of ‘main contributing factor’ and following analysis of the authorities relevantly concluded that the test of ‘main contributing factor’ is one of causation, which involves consideration of the evidence overall and in a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not the underlying disease process as a whole.
[18] [2020] NSWWCCPD 9.
In his statement Mr Fathullah denied any problems with his low back prior to the workplace incident occurring on 30 January 2020 and while he described feeling pain in his low back at the time of the incident and said that to the best of his recollection he reported this to Dr Nguyen the same day, Dr Nguyen failed to record such complaint in his clinical records relevant to Mr Fathullah. Dr Nguyen’s omission subsequently caused Mr Fathullah some distress, so much so that he changed his general medical care from that of Dr Nguyen and Dr Vincent to that of Dr Siddiqui.
It is evident Mr Fathullah was significantly troubled by the injury he sustained to his left upper extremity in the incident occurring on 30 January 2020, and was prescribed strong pain killing medication, which he said was “calming and sedating” to the extent he was not fully conscious of the pain he was suffering, including the pain he was suffering in his low back. Mr Fathullah has explained too that when trying to ease off his strong pain killing medication, his low back pain became “more apparent”.
While Ms Hogan submitted that relevant to this evidence that the pain killing medication Mr Fathullah was taking initially masked the pain in his low back, Mr Fathullah should not be believed as in reality the pain killing medication was ineffective, it is apparent from the clinical records of Prestons Family Doctors that with a change of prescribed pain killing medication on 12 February 2020, Mr Fathullah experienced consequential pain relief, which is consistent with Mr Fathullah’s evidence.
While Ms Hogan submitted too that both Dr Nouh and Dr Khan appear to have accepted that Mr Fathullah’s complaint to Ashcroft of injury sustained on 30 January 2020 included injury to his low back despite evidence to confirm such complaint and I accept Dr Vincent made no mention of Mr Fathullah complaining of low back pain during consultation on 30 January 2020, I am mindful of the Court of Appeal’s caution in Mason v Demasi[19] and also in Davis v Council of the City of Wagga Wagga[20] relevant to the weight to be afforded to what is contained in clinical records. In the absence of anything from Ashcroft to dispute Mr Fathullah’s version of reporting of injury to Ashcroft, I accept Mr Fathullah’s version of his reporting of injury to Ashcroft and I also accept Mr Fathullah’s expressed belief to Dr Siddiqui on 4 May 2020 that his (now symptomatic) low back pain resulted from the workplace incident that had occurred (which is incorrectly noted by Dr Siddiqui as occurring in February 2020).
[19] [2009] NSWCA 227.
[20] [2004] NSWCA 34.
At the time Dr Khan assessed Mr Fathullah on 4 November 2020 he had available to him opinion provided by Dr Powell dated 14 September 2020, being opinion on which he provided specific comment. At the time Dr Khan provided his supplementary report dated 18 May 2021 he had available to him a copy of Mr Fathullah’s evidentiary statement, the clinical records of Prestons Family Doctors and the musculoskeletal pain questionnaire dated 26 June 2020. Dr Khan provided reasoned opinion Mr Fathullah sustained injury to his low back in the workplace incident occurring on 30 January 2020 and also explained why he did not agree with opinion provided by Dr Powell. While it is not apparent what documents Dr Powell had available to him at the time of assessment and reporting, it is evident he did not have access to any opinion provided by Dr Khan relevant to Mr Fathullah’s low back injury. It appears too that Dr Powell did not clinically examine Mr Fathullah’s low back during assessment on 3 September 2020. I prefer the opinion provided by Dr Khan to that provided by Dr Powell, as Dr Khan had the opportunity to provide comment following review of both Mr Fathullah’s evidentiary statement and Dr Powell’s opinion, whereas Dr Powell did not have the opportunity to review and provide comment following review of Mr Fathullah’s evidentiary statement or Dr Khan’s opinion.
Following review of the evidence as a whole and following careful consideration of counsels’ submissions I am of the view Mr Fathullah has provided a credible history regarding the evidencing of his low back pain some months after the workplace incident occurring on 30 January 2020, and when considering the explanation given by him and also the support afforded him by Dr Khan, I accept Mr Fathullah has discharged the onus of proof required of him and I accept he sustained injury to his low back in the workplace incident occurring on 30 January 2020, (such injury being in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition). I also accept Mr Fathullah’s employment with Ashcroft is the main contributing factor to the injury he has sustained to his low back.
Treatment
I accept Mr Fathullah has sustained injury to his low back in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition with his employment with Ashcroft being the main contributing factor to injury, and it follows he has an entitlement to compensation for the cost of medical or related treatment payable under s 60 of the 1987 Act.
However, in these proceedings Mr Fathullah’s claim made under s 60 of the 1987 Act is particularised in terms of a proposed consultation with a neurosurgeon made under letter dated 1 September 2020[21] and a proposed physiotherapy consultation made under letter dated 15 June 2021[22].
[21] ARD at page 398.
[22] ARD at page 399.
While in submissions Mr Malouf has said there should be a general order under s 60 of the 1987 Act in favour of Mr Fathullah, such proposed amendment to the ARD is opposed by Ashcroft. In such circumstances my determination relevant to Mr Fathullah’s entitlement to compensation for the cost of medical or related treatment payable under s 60 of the 1987 Act is restricted to the proposed consultations initially claimed in these proceedings.
Ashcroft has disputed Mr Fathullah’s entitlement to the proposed consultations with a neurosurgeon and a physiotherapist and Ms Hogan has correctly submitted neither Dr Khan nor Dr Powell have provided opinion as to whether these proposed consultations are reasonably necessary treatment for the injury Mr Fathullah sustained to his low back in the incident occurring on 30 January 2020.
While I accept Mr Malouf’s submission that a proposed consultation with a neurosurgeon and/or a physiotherapist “meets the test in Diab and Rose” (I assume reference to “Diab” to be reference to Diab v NRMA Ltd[23] and reference to “Rose” to be Rose v Health Commission (NSW)[24]) in that such consultations would appear appropriate and relevant to a low back injury, it is apparent the letter of referral dated 15 June 2021 on which Mr Fathullah relies in these proceedings is not a letter of referral to a physiotherapist but is rather a letter of referral to a physiologist.
[23] [2014] NSWWCCPD 72 (Diab).
[24] (1986) 2 NSWCCR 32 (Rose).
Dr Powell provided no opinion whatsoever as to treatment relevant to Mr Fathullah’s low back injury and Dr Khan relevantly provided opinion Mr Fathullah will require intermittent use of analgesics and anti-inflammatory medication “for a period of three years or more depending on his future progress”. When considering Diab and Rose, in circumstances where Dr Siddiqui felt it appropriate to refer Mr Fathullah to a neurosurgeon for review, I accept such proposed consultation to be reasonably necessary treatment and payable under s 60 of the 1987 Act. However, in circumstances where Mr Fathullah has made a claim for proposed consultation with a physiotherapist and sought to rely on a letter of referral to a physiologist in support of such claim, I do not accept the proposed consultation with a physiotherapist to be reasonably necessary treatment and payable under s 60 of the 1987 Act.
SUMMARY
Mr Fathullah is determined to have sustained injury to his low back in the incident occurring on 30 January 2020, such injury being in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition with his employment with Ashcroft being the main contributing factor to injury.
The proposed consultation with a neurosurgeon is determined to be reasonably necessary treatment resulting from the injury Mr Fathullah sustained to his low back on 30 January 2020 and Ashcroft is to pay the cost associated with that proposed consultation in accordance with s 60 of the 1987 Act. The proposed consultation with a physiotherapist is determined not to be reasonably necessary treatment resulting from the injury Mr Fathullah sustained to his low back on 30 January 2020 and Ashcroft is not required to pay the cost associated with that proposed consultation.
0
9
0