Ghilagabar v Kmart Australia Pty Ltd
[2022] NSWPIC 25
•19 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ghilagabar v Kmart Australia Pty Ltd [2022] NSWPIC 25 |
| APPLICANT: | Thomas Ghilagabar |
| RESPONDENT: | Kmart Australia Pty Ltd |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 19 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Lump sum claim; issues in relation to injury; also, application of section 65(2) of the 1987 Act and section 322(3) of the 1998 Act whether injuries could be assessed together for permanent impairment; Held- injury sustained to thoracic spine and right upper extremity (shoulder) pursuant to section 4(b)(ii) of the 1987 Act; these injuries can be assessed together as they arose out of the same incident; injury to bilateral plantar fascia, ankles and sub-talar regions pursuant to section 4(b)(ii) of the 1987 Act did not arise out of the same incident as that of the thoracic spine and right upper extremity (shoulder) and cannot be assessed with those injuries; Ozcan v Macarthur Disability Services [2021] NSWCA 65, Cemco (Australia) Pty Ltd t/as Carralls’ Engineering and Mining v Carrall [2009] NSWWCCPD 76 discussed; injuries to thoracic spine and right upper extremity (shoulder) remitted to President to be referred to Medical Assessor as the lump sum claim for compensation for those injuries exceeded the threshold in section 66(1) of the 1987 Act; date of injury held to be date of lump sum compensation claim, applying SAS Trustee Corporation v O’Keefe [2011] NSWCA 326; the lump sum claim in respect of the injuries to bilateral plantar fascia, ankles and sub-talar regions cannot be referred for assessment of permanent impairment as they do not exceed threshold in section 66(1); Sukkar v Adonis Electric Pty Ltd [2014] NSWCA 459 applied. |
| DETERMINATIONS MADE: | 1. Pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 Mr Ghilagabar sustained injury to his thoracic spine and right shoulder. 2. Pursuant to section 66 (2) of the Workers Compensation Act 1987 and section 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 the injuries to the thoracic spine and right upper extremity (shoulder) arise from the same incident and are to be assessed together for permanent impairment. 3. The date of injury for the injuries to the thoracic spine and right upper extremity (shoulder) is the date of the compensation claim, 23 November 2020. 4. The lump sum claim in relation to injury to the thoracic spine and right upper extremity (shoulder) is remitted to the President for referral to a Medical Assessor to assess permanent impairment. 5. The documents to be referred are to include the Application to Resolve a Dispute with the exception of the report of Dr Pillemer, Reply and the Applications to Admit Late Documents dated 3, 17 and 28 September 2021 together with a copy of this Certificate of Determination/Statement of Reasons. 6. The injury involving bilateral plantar fasciitis, ankles and sub-talar regions arise from a different incident to the injuries to the thoracic spine and right upper extremity (shoulder). 7. The claims for lump sum compensation for injury involving bilateral plantar fasciitis, ankles and sub-talar regions do not meet the threshold in section 66 of the Workers Compensation Act 1987 and are not to be referred for assessment of permanent impairment. |
STATEMENT OF REASONS
INTRODUCTION
The claim for compensation in these proceedings is confined to lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
Section 66(1) provides a threshold for permanent impairment being greater than 10% in order for a worker to have an entitlement to lump sum compensation.
Section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that impairment that result from the same injury are to be assessed together to assess the degree of permanent impairment. Section 322(3) provides that impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
This case is complicated because the parties disagree as to how the lump sum case should be framed. Thomas Ghilagabar, the applicant, pleads that he has sustained injury by way of a disease injury with a deemed date of injury of 1 February 2017 [sic]. He alleges injury to his right shoulder, thoracic spine, left ankle and sub-talar joint, right ankle and sub-talar joint, and left and right plantar fasciitis. His description of injury in his Application to Resolve a Dispute (ARD) states:
“Cause, aggravation, acceleration or deterioration of a disease of gradual onset as a result of the nature and conditions of employment, [being picking and packing orders, stacking items onto pallets, running pallet jack machines, driving forklifts (requiring use of gears and levers), prolonged standing and walking, repetitive lifting of heavy weights (including overhead)].
In relation to each ankle, in the alternative, a consequential injury to the ankle.”
The respondent, Kmart Australia Limited, argues that the lump sum claim cannot be framed in this manner. It concedes that Mr Ghilagabar sustained a right shoulder injury on 31 May 2006, with an aggravation in 2014, and that he sustained bilateral plantar fasciitis in November 2012. It disputes any injury to the right shoulder based on the disease provisions in section 4 of the 1987 Act and that any injury has been sustained to the thoracic spine and ankles. In addition, it argues that injury to the body parts claimed by Mr Ghilagabar cannot be aggregated together because the cause of injury to each body part is different.
BACKGROUND
Mr Ghilagabar is presently aged 56. He migrated to Australia from East Africa in 1995 and is a permanent Australian resident. He commenced work with the respondent in 2004 as a storeman/pick packer. His accounts of injury during the course of his employment with the respondent include:
(a) on 31 May 2006 he states he was working on a sorting machine and as he lifted a box over his head, he felt a pain in his right shoulder, but continued working. He says his shoulder pain became worse when he was working on a pallet mover as he had to twist its handle[1]. He reported this injury referring to the work on the pallet machine[2], not referring to the lifting of the box;
(b) on 20 November 2012 when he was working as a runner in the pick and pack area for eight hours per day, eight weeks straight he felt pain in his ankles and feet over time[3]. He reported this injury on 13 September 2013 indicating that the pain would not occur if he was performing forklift duties but if he was doing tasks, such as picking and putting away stock, he would feel pain on the bottom of his feet and getting on and off the pick machine aggravated the pain[4], and
(c) on 25 August 2014 when operating the lever on a forklift Mr Ghilagabar felt pain in his right shoulder.
[1] ARD p 40.
[2] ARD p 10 and 14.
[3] ARD p 25.
[4] ARD p 27.
On 20 November 2014 the respondent through its self-insurance entity, Wesfarmers Limited, issued a dispute notice pursuant to the then section 74 of the 1998 Act declining liability for the claim in relation to the injury on 20 November 2012[5]. In that notice the respondent stated that it accepted that Mr Ghilagabar had sustained bilateral plantar fasciitis. It noted that its orthopaedic surgeon, Dr Breit, confirmed the diagnosis associated with tight calf muscles as a result of his employment. However, subsequently on 3 November 2014 Dr Dryson, specialist occupational physician, found that the condition had resolved.
[5] ARD p 31.
On 23 August 2019 Mr Ghilagabar through his solicitors made a claim for lump sum compensation as a result of the nature and conditions of his employment with a deemed date of injury of 28 February 2017, said to be the last day he worked[6]. The claim was based upon an assessment by Dr Dias in reports dated 20 July 2017 and 25 July 2018 who assessed a total permanent impairment of 22% whole person impairment (WPI) comprised of 7% WPI for the thoracic spine, 14% WPI combined for the right shoulder and right elbow, and 1% WPI for each foot.
[6] ARD p 118.
On 10 December 2019 the respondent issued a notice pursuant to section 78 of the 1998 Act and accepted liability for injury to the right shoulder and bilateral plantar fasciitis and offered lump sum compensation based on 12% WPI in relation to the right shoulder[7]. Injury was disputed in relation to the right elbow, right wrist and thoracic spine.
[7] ARD p 120.
On 8 May 2020 Mr Ghilagabar filed an Application to Resolve a Dispute in the Workers Compensation Commission in matter 2560/20[8] and on 9 June 2020 he discontinued those proceedings[9].
[8] ARD p 1.
[9] ARD p 453.
On 23 November 2020 Mr Ghilagabar through his solicitors made a lump sum claim based upon the report of Dr Drew Dixon dated 28 October 2020 for 19% WPI[10]. This assessment was comprised of 8% WPI for the right shoulder, 5% WPI for the thoracic spine, 4% WPI for the left ankle and sub-talar joint, 3% WPI for the right ankle and 1% for the left plantar fasciitis and 1% for the right plantar fasciitis.
[10] ARD p 466.
On 3 February 2021 particulars of the claim were given as follows:
“1. Our client first developed symptoms in his right shoulder, right elbow and
right wrist on or around 31 May 2006.
Our client first developed symptoms in his feet and middle back on or around 21 March 2019.
2. The injury to the client's right shoulder, right elbow and right wrist were caused by our client lifting a heavy box, stacking pallets and using controls on a pallet rider.
The injury to our client's feet and middle back, as well as further aggravation to our client's right shoulder, right elbow and right wrist were caused by undergoing picking and packing orders, stacking items onto pallets, running pallet jack machines, driving forklifts (requiring the use of gears and levers), as well as prolonged standing, walking and repetitive lifting of heavy weights
including overhead.”[11]
[11] ARD p 470.
The respondent issued a dispute notice pursuant to section 78 of the 1998 Act dated 18 February 2021. That notice referred to claim for workers compensation benefits in relation to injuries suffered on “31 May 2006, November 2012 and August 2014 and/or as a result of your work more generally”. It was stated in the notice that liability for injury to Mr Ghilagabar’s right shoulder, feet (plantar fasciitis) and thoracic spine was accepted. However, liability for injury to his right elbow, right wrist, right and left ankle was declined on the basis that employment with the respondent was not the main contributing factor to the development or aggravation of a disease process in these body parts as required by section 4(b) of the 1987 Act. Furthermore, in relation to the accepted injuries the respondent relied upon the permanent impairment assessment by their Dr Dryson, which fell below the greater than 10% WPI threshold in section 66 of the 1987 Act.
On 3 May 2021 Mr Ghilagabar discontinued proceedings filed in the Personal Injury Commission (the Commission) in matter W349/21[12].
[12] ARD p 485.
On 8 May 2021 Mr Ghilagabar filed his current ARD in the Commission. The claim for compensation is confined to lump sum compensation for the body systems of the right upper extremity, left lower extremity, right lower extremity and thoracic spine referable to the deemed date of injury 1 February 2017 [sic]. He essentially relies upon the disease provisions in section 4 of the 1987 Act and pleads his case as set out at [4] above.
On 14 July 2021 Wesfarmers Limited issued a further section 78 notice which now disputed liability for any thoracic spine condition and stated that it accepted injury to the right shoulder in 2006 only and injury to Mr Ghilagabar’s feet in 2012 only, pursuant to sections 4(a) and 4(b)(ii) of the 1987 Act respectively. The respondent also disputed that impairment from the accepted injuries can be aggregated pursuant to section 322 of the 1998 Act because there are different dates of injury, different mechanisms of injury relating to Mr Ghilagabar’s shoulder and feet. Liability for the disputed injuries to the thoracic spine, right elbow, right wrist and right and left ankles was declined on the basis that employment was not the main contributing factor to the development or aggravation of a disease process as required by section 4(b) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference/ arbitration hearing before me on 8 September 2021. Mr Greg Schipp, counsel, instructed by Mr Christopher Chidiac, solicitor, appeared for Mr Ghilagabar, who was present. Ms Nicole Compton, counsel, instructed by
Ms Miriam Browne, solicitor, and Ms Olga Sasko from Wesfarmers appeared for the respondent. The proceedings were conducted by telephone due to the COVID-19 situation.On that day I dealt with objections relating to the documentary evidence. A sound recording was made, which is available to the parties. Directions were made regarding the filing of further evidence and written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents with the exception of the report of Dr Pillemer dated 9 June 2015;
(b) Reply;
(c) Application to Admit Late Documents (AALD-1) dated 3 September 2021 filed by the applicant attaching report of Dr Dixon dated 12 August 2021;
(d) Application to Admit Late Documents (AALD-2) dated 17 September 2021 filed by the applicant attaching report of Dr Breit dated 18 March 2014;
(e) Application to Admit Late Documents (AALD-3) dated 28 September 2021 filed by the respondent attaching x-ray report of Dr Lee dated 9 November 2016 and report of Dr Dryson dated 21 September 2021;
(f) applicant’s submissions dated 8 October 2021;
(g) respondent’s submissions dated 29 October 2021, and
(h) applicant’s submissions dated 5 November 2021.
It is noted both parties in their submissions refer to Dr Pillemer’s report however it was not admitted into evidence, as the sound recording of the commencement of the hearing of this matter confirms. So, I will not take it into account.
Oral evidence
There was no oral evidence.
ISSUES TO BE DETERMINED
The issues to be determined include the following:
(a) whether Mr Ghilagabar sustained injury to his thoracic spine? If so, what part of section 4 of the 1987 Act applies and what is the date of injury?
(b) how should the injury to Mr Ghilagabar’s right shoulder be framed? Does section 4 (b) of the 1987 Act apply? What is the date of injury?
(c) whether Mr Ghilagabar sustained injury to left and right ankles and sub-talar regions? If so, what part of section 4 of the 1987 Act applies and what is the date of injury?
(d) what is the date of injury for the bilateral plantar fasciitis injury?
(e) can the injuries be assessed together pursuant to section 322 of the 1998 Act?
(f) in relation to the injuries found by the Commission has Mr Ghilagabar passed the threshold in section 66(1) of the 1987 Act to enable a referral to a Medical Assessor?
FINDINGS AND REASONS
The workers compensation legislation does not provide that a worker can obtain lump sum compensation by aggregating all injuries involving different body parts received over a working life with an employer regardless of how they were sustained. Section 66(2) of the 1987 Act provides if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury. Section 322(3) of the 1998 Act has the same effect. So, the central question in Mr Ghilagabar’s case is whether the injuries to his different body parts arose out of the “same incident”. Because of the threshold of greater than 10% in section 66 of the 1987 Act, in some cases there has developed a tendency for workers to frame their injuries as having the “same incident” by claiming they all arise out of the nature of the work with an employer, a so-called “nature and conditions of employment” type argument.
The way Mr Ghilagabar has brought his claim in these proceedings is based upon Dr Dixon’s opinion that the conditions he diagnosed “are causally related to the injuries sustained in the workplace over a period of 13 years… using both a forklift and picking and packing as well as palletising”.
The issue in relation to what body parts have been injured and how they were injured needs to be determined before considering the question of aggregation.
In Mr Ghilagabar’s submissions it is noted that the lump sum claim being made does not relate to the right elbow or wrist and the only “injury” issue relates to the thoracic spine and ankles. However, in addition to the respondent disputing any injury to the thoracic spine and ankles, the respondent disputes the presence of any “nature and conditions” type injury affecting all the body parts claimed.
It is convenient to consider the parties’ submissions together with the evidence in relation to each of the body parts.
Thoracic spine
The claim being made for lump sum compensation is based upon the assessment of
Dr Drew Dixon, orthopaedic surgeon. In his report dated 28 October 2020 he refers to a history taken from Mr Ghilagabar that he sustained injury to his right shoulder, elbow and wrist on 31 May 2006 when lifting a heavy box, stacking pallets and using controls on a pallet rider. In this first part of the report Dr Dixon notes that Mr Ghilagabar sustained injury to both heels on 20 November 2012 and injuries to his right shoulder, right elbow, thoracic spine and right wrist on 25 August 2014.Dr Dixon noted symptoms including pain and stiffness in the right shoulder with pain in the deltoid muscle radiating to the deltoid insertion. He states, “He has some pain in the thoracic spine extending to the right peri scapular regions underneath the right scapular associated with stiffness…”. Dr Dixon recorded that Mr Ghilagabar had been using a binder around his thoracic spine. On his physical examination Dr Dixon found pain in the right parathoracic area in the upper thoracic and interscapular region. There was also pain in the thoracic spine on truck rotation which was reduced by one quarter and flexion was decreased by one third with pain on back extension which was decreased by one half. Lateral flexion was equal to both sides and decreased by one third. The doctor also records the areas of tenderness.
Dr Dixon refers to an x-ray dated 8 November 2016 showing endplate wedging of the T4 vertebral body and says this is consistent to where Mr Ghilagabar localises his pain.Dr Dixon diagnoses middle and upper back strain. He does not specify a particular cause but attributes all the injuries being “due to picking and packing orders, stacking items onto pallets, running jack machines, driving forklifts (requiring the use of gears and levers) and prolonged standing and walking, particularly when doing palletising and repeat lifting of heavy weights including over shoulder height”. Under the heading causation the doctor attributes all the injuries to the work over 13 years for the respondent[13].
[13] ARD p 459.
Dr Dixon’s permanent impairment assessment for the thoracic spine states “that for his thoracic spine where he has endplate wedging of T4 on his erector spinal films from Table 15-4, AMA V, DRE Category II for endplate fractures, is 5% whole person impairment”.[14] Although, Dr Dixon had not stated in the body of the main report that the end plate fractures were caused by the work.
[14] ARD p 463.
The thoracic spine x-ray report dated 9 November 2016 conducted at the Western Imaging Group has a clinical history of “pain in the mid thoracic spine. Spasms in mid erector spinae”. There is no reference to end plate fractures, but the report is quite brief. The findings are “the alignment is within normal limits. Vertebral body heights are maintained. The disc spaces all appear preserved. There are no bony lesions”. The conclusion of the radiologist is that there are “minor signs of disc degeneration”[15]. Dr Dixon refers to an x-ray dated 8 November 2016 and to erector spinal films. It is unclear if this is the same as the above-mentioned x-ray report dated 9 November 2016.
[15] AALD-3 p 1.
Dr Dixon’s supplementary reports dated 24 May 2021 and 24 June 2021 deal with the ankles/feet and not the thoracic spine. In his report dated 12 August 2021, Dr Dixon states:
“Repetitive bending of the claimant’s upper back has led to end plate wedging of the T4 vertebral body in the thoracic spine, as does heavy lifting and carrying with the upper back in a flexed position.[16]”
[16] AALD-2 p 1.
The respondent relies upon opinion from Dr Evan Dryson, specialist occupational physician. He has provided reports dated 3 and 17 November 2014, 30 October 2019, 25 November 2019, 11 January 2021, 14 May 2021 and 21 September 2021.
In his first report Dr Dryson noted that Mr Ghilagabar had an injury to his right shoulder eight years earlier. This is consistent with the report of injury in 2006. Dr Dryson took the history the pain was in the anterior shoulder. He states “He believes it is different to the current pain he is experiencing. The injury eight years ago was, he believes, due to driving a forklift machine. He had physiotherapy and it settled down”.[17] Dr Dryson sets out his examination findings showing the restricted range of movement in the right shoulder compared to the left[18]. The doctor formed the view in that report that it was likely that Mr Ghilagabar had rotator cuff tendinopathy, which was symptomatic at work; but the doctor recommended an MRI scan to comment further[19]. Dr Dryson referred to the Bounce Rehab assessment by Matthew Craig dated 16 October 2014 which found that the operating lever on the high reach forklift requires minimal activity of the rotator cuff and surrounding muscles of the neck and midback[20]. Dr Dryson therefore reasoned that the pathology in the shoulder was constitutional and not caused by work. However, Mr Craig’s findings went further than quoted by Dr Dryson.
[17] Reply p 23.
[18] Reply p 24.
[19] Reply p 29.
[20] Reply p 27.
In this Bounce Rehab report the right shoulder was assessed, and it is noted that
Mr Ghilagabar reported pain build up at the rear of his right shoulder (posterior capsule and infraspinatus muscle-tendon junction), with mild discomfort on the right upper trapezius, right mid thoracic facet joints and at times the anterior shoulder (bicep/pectoralis tendon). Trouble was reported only with sustained operation of the forklift lever. It was stated thatMr Ghilagabar had no trouble lifting heavy weights. It was recorded that he had normal pain-free shoulder, neck and thoracic range of motion. It was noted he had poor posture, sitting with the forklift seat too high leading to thoracic slouching “Neural tension”. He also had poor thoracic posture without his elbow rested stationary on the padded surface leading to shoulder abduction, scapular protraction and impingement or compression of the rotator cuff tendons[21].[21] ARD p 372.
Therefore, these findings call into question Dr Dryson’s conclusions in these two reports.
Dr Dryson has not taken into account the effects of Mr Ghilagabar slouching posture. Also, the doctor in these reports has not taken into account whether the work aggravated any underlying pathology.
In the report dated 30 October 2019 Dr Dryson takes a history that Mr Ghilagabar said in 2014, while sitting in the high reach forklift, he developed thoracic pain which he located to the right-hand side of the midline region of the lower angle of the right scapula. Dr Dryson states “He has had an x-ray of the thoracic spine carried out on 8 November 2016 at Western Imaging Group, but the report was not available. I have requested this from his general practitioner Dr Lim”. I note the x-ray report dated 9 November 2016 referred to above is addressed to Dr George Hanna at Colyton, not to Dr Lim’s practice. Dr Dryson noted “he has a pressure stick which he uses to apply pressure to the painful area at the right of his thoracic spine. He also lies on a bale for the same purpose[22]”. On examination Dr Dryson found that “Mr Ghilagabar reported tenderness to palpation at the lower angle of the right scapula. This is likely to represent a trigger point[23]”. Dr Dryson states that a trigger point per se would not be considered to be an injury[24].
[22] Reply p 42.
[23] Reply p 43.
[24] Reply p. 45.
Dr Dryson examined Mr Ghilagabar again on 18 December 2020 and reported to the respondent on 11 January 2021[25]. He takes a detailed history about the work tasks involved in particular with the high reach forklift. He says this is operated in a seated position, sitting in a chair at the side of the machine. He said there was a need for constant twisting to operate the machine. The forks were on the right-hand side and was twisted to the right all day long observing the forks. He said while operating this machine he developed pain in his thoracic spine. Dr Dryson notes that Mr Ghilagabar ceased work in 2017 and has had no improvement in his thoracic spine. In the list of radiological reports Dr Dryson refers to an
x-ray of the thoracic spine showing wedging at T4. On examination of the thoracic spine,
Dr Dryson found he had normal range of movement at 45° of rotation in both directions. He found no tenderness to palpation of the thoracic spine, but he did report tenderness to the right of the midline in about the T8 area. Dr Dryson diagnosed “mid-thoracic spinal pain secondary to osteoarthrosis (whole body/SPECT 10 August 2015, showed ‘moderately active marginal osteophyte formation and independent [sic, endplate[26]] degenerative changes at multiple levels in the thoracic spine’[27]”. Dr Dryson later in the report opines thatMr Ghilagabar has clear evidence of pre-existing osteoarthrosis in his lumbar spine and radiology shows degenerative changes in the cervical and lumbar spines. The doctor advises that “Mr Ghilagabar may well have been experiencing pain from his thoracic osteoarthrosis at the time of operating the high reach forklift, this requiring significant twisting of the trunk. The high reach forklift, however, has not caused the osteoarthrosis of the thoracic spine and current symptoms are not due to the operation of the high reach forklift”.[25] Reply p 51.
[26] See correction in Dr Dryson’s report dated 21 September 2021, AALD-3 p 3.
[27] Reply p 58.
Dr Dryson was asked to give his opinion regarding the report of Dr Dixon dated 28 October 2020. In relation to the thoracic spine, he noted that Dr Dixon found end plate wedging at T4 which he categorises as an endplate fracture. Dr Dryson says the bone scan shows extensive osteoarthrosis of the thoracic spine and he does not believe the changes in the T4 can be attributed to the nature of Mr Ghilagabar’s work.
In his report dated 21 September 2021, Dr Dryson was asked to comment regarding
Dr Dixon’s report dated 12 August 2021 in which he opined that repetitive bending has led to end plate wedging at T4 as does heavy lifting and carrying with the back in a flexed position. Dr Dryson advises that Dr Dixon does not mention the extensive changes revealed on the bone scan and says there are in fact endplate changes at multiple levels. He explains “The condition is that of degenerative disease of the thoracic spine, which could be called osteoarthrosis, or alternatively thoracic spondylosis”. He says it is a degenerative disease and as such is not due to Mr Ghilagabar’s work. Dr Dryson was asked to clarify his reference to an x-ray on 8 November 2016 and his response was unclear.However, while it may well be that the work did not cause the underlying pathology,
Dr Dryson does not appear to have considered that an aggravation of disease constitutes an injury as provided for in section 4(b)(ii) of the 1987 Act. That section provides that a disease injury includes an “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… of the disease”.In the case of State Transit Authority of New South Wales v El-Achi[28] Acting President Roche found:
“[64] The Senior Arbitrator then explained that Mr El-Achi relied on s 4(b)(ii), which deals with the aggravation, acceleration, exacerbation or deterioration of any disease, and not s 4(b)(i), which deals with a disease that is “contracted by a worker in the course of employment”. Dealing with Mr Halligan’s submission as to what needs to be proved for the purpose of establishing main contributing factor for the purposes of s 4(b)(ii), the Senior Arbitrator referred to Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 (Murray).
[65] In that case, Einstein J (Hodgson and Santow JJA agreeing) rejected as “misconceived” ([62]) the employer’s submissions that the substantial contributing factor test in s 9A was only satisfied if employment was a substantial contributing factor to a “fully blown injury”. His Honour pointed out that the submissions failed to recognise that in s 4(b)(ii) the only compensation is for the effect of the aggravation and not for the effect of the original non-aggravated disease.
[66] His Honour explained that the trial judge in Murray correctly approached the question of construction on the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition.
[67] The Senior Arbitrator said that “similar principles” (T41.29) (to those explained in Murray) apply to what must be demonstrated for the purpose of establishing the aggravation or acceleration of a disease pursuant to s 4(b)(ii) in its current form. He added, at T41.32:
“It is necessary, for an applicant to succeed, that the applicant demonstrate that the employment was the main contributing factor to the aggravation injury. It is not necessary that the applicant establish that the employment was the main contributing factor to the disease process as a whole.”
[28] [2015] NSWWCCPD 71, EL-Achi.
In addition to Dr Dixon’s opinion, Mr Ghilagabar in his submissions relies upon the following evidence to support that he sustained an injury to his thoracic spine:
(a) the nature of his employment with the respondent;
(b) Mr Ghilagabar’s statement dated 26 April 2021 wherein he says he felt pain including to his middle back when using a pallet mover and high reach forklift;[29]
(c) his general practitioner has recorded pain in the thoracic spine;
(d) medical certificates refer to back/right shoulder;
(e) Dr Soo reported to Dr Lim that Mr Ghilagabar has back pain, worse when sitting upright. The position of the back pain is middle and upper right lower back;
(f) physiotherapy records refer to Mr Ghilagabar sitting on the forklift seat too high, and
(g) physiotherapy records note pain in mid thoracic facet joints which coincide with shoulder pain with sustained use of the forklift lever.
[29] ARD p 482 at [14].
I consider the evidence listed above does provide support for the argument that
Mr Ghilagabar did experience symptoms in his thoracic spine at work. Dr Dryson does not really dispute this. While there is a lack of clarity about whether there is an x-ray of 8 November 2016, Dr Dryson notes the bone scan does refer to endplate degenerative changes in the thoracic spine. However, I find it difficult to accept Dr Dixon’s final explanation that the work caused an endplate fracture at T4. I find his explanation takes quite a broad-brush approach because he has not considered in detail the amount of heavy lifting and bending involved in Mr Ghilagabar’s work whereas most of Mr Ghilagabar’s evidence as to when he was symptomatic in the thoracic area relates to his work sitting and operating the high reach forklift. However, of more significance, to my mind, is the fact that Dr Dixon does not refer to the bone scan, which I find is very relevant. It was performed a year before the
x-ray. I find that the bone scan establishes that Mr Ghilagabar in 2015 had endplate degenerative changes at multiple levels in his thoracic spine but also degenerative changes throughout most of his spine. I find that before Dr Dixon could find that work actually caused an endplate fracture Dr Dixon needed to consider the results of this scan because it shows such widespread degenerative changes.Notwithstanding this criticism of Dr Dixon’s reasoning process, I find on the balance of probabilities it is more likely than not that Mr Ghilagabar did experience a thoracic injury being the aggravation of his degenerative condition in the thoracic spine. I find that
Dr Dryson’s finding that “Mr Ghilagabar may well have been experiencing pain from his thoracic osteoarthrosis at the time of operating the high reach forklift, this requiring significant twisting of the trunk” is significant. While Dr Dryson casts doubt on the cause of the degenerative pathology in the thoracic spine, he does acknowledge the work required significant twisting and that pain could have been produced in the process. I find this presentation in response to his work duties is consistent with an injury having been sustained under section 4(b)(ii) of the 1987 Act, being an aggravation of disease, with the employment being the main contributing factor to the aggravation of the disease.However, as the respondent’s submissions at [89] disputes injury to the thoracic spine and its subsequent submissions attempt to point to a lack of thoracic complaints it is appropriate, before I come to a final conclusion, to closely examine the contemporaneous evidence.
Mr Ghilagabar has provided three statements dated 15 April 2015[30], 5 May 2016[31] and 26 April 2021[32]. His first statement does not refer to any thoracic or back pain, but it does provide some detail regarding the physical requirements of his work duties.
[30] ARD p 44.
[31] ARD p 39.
[32] ARD p 481.
He states that he worked Monday to Friday with regular overtime. In order to do the job as a picker, he says he had to stand on a pallet mover and drive to a specific location, get off, bend over grab a box, lift, twist and then walk back to his pallet and put the box down. He said on any given day he could pick up to 1200 boxes, weighing between 1kg to 20 kg per box. He then has to manually cling wrap the pallet. He says when he is picking or packing, he is either standing or walking. He also operates a high reach forklift by using hand controls. There is a lever he has to lift, push and pull to operate the machine and the forks. He says he uses his right hand to operate the lever and left hand to operate the steering wheel.
In his first statement he describes the events on 31 May 2006 when he was working on a sorting machine, he had to pick boxes from the conveyor and pick them up and stack them on a pallet to above head height. He says as he lifted a box over his head, he felt pain in his right shoulder. He says he tried to continue working and went to work on a pallet mover but as he had to twist the handle the pain got worse. He says he attended the company doctor, Dr Field and had scans and physiotherapy.
The Incident report for 31 May 2006 states “using the MHE felt a pain the shoulder muscles when using the throttle. Only when twisting his wrist down wards to accelerate the MHE. Lifting cartons OK”. The form provides for boxes to be ticked for the injury site and only the shoulder is ticked and “right” is specified[33]. The corresponding Claim Form refers to over a period of time Mr Ghilagabar felt pain in the shoulder and arm when twisting his wrist when accelerating the machine aggravated the pain[34]. There is no reference in these documents to an injury when lifting a box.
[33] ARD p 11.
[34] ARD p 15.
In Mr Ghilagabar’s second statement he describes the development of pain in his feet in November 2012 when working on a pallet mover, standing, for six weeks straight, he says without rotation. After describing his treatment, Mr Ghilagabar states at [30] he was given duties on the forklift so he could sit down. He does not give a date for when this change of duties took place. He states on 25 August 2014 he was operating the lever on the forklift when he felt pain in his right shoulder. After reporting this he was taken to the work physiotherapist. Mr Ghilagabar describes his working hours being reduced to 30 hours per week, with duties on rotation with two hours each of picking, forklift work and picking again and sometimes 30 minutes on the pallet mover. In this statement at [39] he refers to experiencing pain in his shoulder and feet almost every day. He says he wears posture support to help his shoulder pain. Nowhere in his first or second statements does he refer to thoracic symptoms.
In his third statement he says he stopped work in February 2017 due to the severe pain he was feeling in his right arm, back and legs. At [14] he states when using the pallet mover and high reach forklift he still felt pain in various parts of his body including his middle back, shoulders, arms (including elbows and wrists) legs and feet.
The respondent at [91] submits that there is no mention of the thoracic spine in the 2006 report of injury or Mr Ghilagabar’s early statements. I do not find this particularly remarkable because the evidence suggests the thoracic symptoms did not become manifest until the latter part of his work time with the respondent. An examination of the medical certificates provides some support for such a conclusion.
The medical certificates are from a number of different doctors and the certificates up to May 2016 only refer to a right shoulder injury. From 4 May 2016 there is included a reference to “Back/R) shoulder”. For instance, Dr Levett, from the Fairfield Medical Centre, issued a Medical Certificate dated 9 August 2006 date of injury 31 May 2006 how injury occurred – “recurrent use R hand → shoulder pain” [35]. Dr Field’s medical certificate dated 10 August 2006 states “developed right shoulder pain, gradual onset, he attributes it to restrictive gripping of hand on pallet machine”. The diagnosis was stated as “right? biceps tendinosis”[36]. Dr Field in certificate dated 17 August 2006 refers to right biceps tendinosis stating that Mr Ghilagabar is fit for suitable duties with restricted hours on pallet machine and work above shoulder height[37].
[35] ARD p 295.
[36] ARD p 294.
[37] ARD p 293.
Dr Saafan in certificate dated 24 August 2006 diagnoses right biceps tendinosis[38]. Dr Field certified that the right biceps tendinitis recovered, and that Mr Ghilagabar was fit for pre-injury duties from 31 August 2006[39]. A number of later medical certificates only refer to the right shoulder strain and make no mention of the thoracic spine such as Dr Di Francesco’s certificate dated 3 November 2014[40], Dr Lim’s certificates dated 24 October 2014[41], 7 November 2014[42], 14 November 2014 [43], 21 November 2014[44], 5 December 2014[45], 9 January 2015[46], 30 January 2015 [47], 13 February 2015[48] and 6 March 2015[49].
[38] ARD p 290.
[39] ARD p 291.
[40] ARD p 209.
[41] ARD p 221.
[42] ARD p 206.
[43] ARD p 203.
[44] ARD p 200.
[45] ARD p 194.
[46] ARD p 191.
[47] ARD p 185.
[48] ARD p 176.
[49] ARD p 173.
However, the medical certificates dated 4 May 2016[50],14 October 2016[51], 28 October 2016[52] and 3 July 2017 refer to “back/R) shoulder strain with bursitis and tendinosis; R) wrist tenosynovitis from over compensation; R) elbow extensor tendinosis; Chronic pain causing major depression”[53]. The medical certificates thereafter also include reference to “back/R) shoulder strain”.
[50] ARD p 301.
[51] ARD p 167.
[52] ARD p 324.
[53] ARD p 128.
While the reference to “back” does not specify it is the thoracic spine, the fact that the injury was not confined to the right shoulder is consistent with Mr Ghilagabar’s evidence in his statement. I find it is also consistent with the fact that Bounce Rehabilitation noted in their report in October 2014 that Mr Ghilagabar had poor thoracic posture on the high reach machine.
On 2 May 2015 the general practitioner’s progress notes have a diagram showing the area of pain since he had shoulder issues and it appears to cover the thoracic spine[54]. On 3 July 2015 an entry refers to attendance at physiotherapy department Blacktown Hospital on 29 June 2015 obtained exercise for right shoulder and there is a reference to girdle pain to neck and a diagram that may include thoracic area[55].
[54] ARD p 406.
[55] ARD p 406.
On 10 August 2015 the whole-body bone scan was performed in relation to prostate carcinoma. As referenced earlier in these reasons, it was noted that “there are moderately active marginal osteophytic formation and endplate degenerative changes at multiple levels in the thoracic spine. Increased uptake, consistent with arthritis is also noted in the mid and lower cervical spine”. Degenerative changes were also noted in the lumbar spine and arthritis in the knees[56].
[56] ARD p 53.
While Dr Rozario and Dr Perko in their reports dated 30 March 2015 and 5 November 2015 respectively do not refer to the thoracic spine, I do not consider that to be fatal to
Mr Ghilagabar’s case. Dr Rozario’s report was focused on his feet and Dr Perko on his right shoulder. The referral by Dr Lim to Dr Perko 14 Nov 2014 only refers to right shoulder bursitis with tear.[57] Dr Perko did have a history on increasing right shoulder pain as he refers to pain being more severe “this year” and has been given alternate duties operating high lift forklift but the operating lever requires him to hold the arm at shoulder height in abducted internally rotated position which was causing more shoulder pain.[57] ARD p 436.
Dr Soo, treating orthopaedic surgeon, reported to Dr Lim on 18 May 2018 that
Mr Ghilagabar had a repetitive injury to his right shoulder when working as a storeman for the respondent. The report has a brief history “2004 and 2006 and 2016 injured right shoulder at work”. He noted that Mr Ghilagabar has middle and upper right lower back pain, and his back pain was worse when sitting upright. The report mainly deals with the right shoulder pain which was said to be excruciating at times and worsening. The doctor noted an MRI scan showed bursitis and an intrasubstance tear to his supraspinatus but that he had full active ROM to his shoulder. He noted that there was some clinical signs of impingement[58].[58] ARD p 96.
The respondent at [92] of its submissions refers to Dr Dias as being the first expert to report pain in the thoracic spine in his report dated 20 July 2017, as he includes in his history that Mr Ghilagabar “has also experienced symptoms of pain, stiffness and discomfort in his thoracic spine, right elbow and right wrist, over the course of the past three years, which he also associates with a repetitive nature and conditions of his job role as a warehouse storeperson”. Dr Dias on examination found that Mr Ghilagabar was tender to palpation in the right thoracic musculature from the level of approximately T3 to T8, with tenderness to palpation extending laterally in to the right parascapular musculature. He found significant muscular guarding on palpation of these regions. There was a reduction by a third for rotation to the right. Dr Dias diagnosed chronic right sided thoracic spine pain, secondary to recurrent musculoligamentous strains. Dr Dias only had the x-ray report dated 9 November 2016 before him. Unfortunately, Dr Dias did not have the bone scan before him and states there were no significant pre-existing changes that were aggravated. He assessed the permanent impairment of the thoracic spine at DREII because of the muscle guarding and asymmetric loss of range of movement. Dr Dias made similar findings in his 2018 report.
The respondent argues at [106] that because the x-ray dated 8 November 2016 is not before the Commission and the fact an x-ray report dated 9 November 2016 is in evidence it should be determined that the x-ray of 8 November 2016 does not exist. It is certainly odd that both Dr Dixon and Dr Dryson refer to an x-ray of 8 November 2016 showing an endplate fracture at T4. It is not clear from any of their reports if they viewed the actual x-ray film.
Dr Dixon said this x-ray “appeared to show endplate wedging of the vertebral body at T4” (my emphasis). I find in these circumstances where both doctors have referred to an x-ray of 8 November 2016, I cannot simply deduce that it does not exist. It may be it is the same
x-ray film, and the radiologist did not mention a finding about the T4 in his report dated 9 November 2016, but Dr Dixon viewed the x-ray, as the word “appeared” suggests, and saw wedging. The x-ray report dated 9 November 2016 has under Dr Matthew Lee’s name the words “electronically verified on 09/11/2016 07.07AM”. It could be the x-ray was taken on the 8th and reported on the 9th. However, I find I can draw no conclusions or inferences one way or the other as the evidence is unclear. What is clear, and acknowledged by Dr Dryson, is that the bone scan taken in 2015 shows endplate degenerative changes at various levels of the thoracic spine.If Mr Ghilagabar has in fact an endplate fracture or wedging at T4, I still have difficulty with
Dr Dixon’s most recent opinion that the work has caused this pathology because he has not considered the findings on the bone scan, which, as I have discussed above, shows widespread endplate degenerative changes in the thoracic spine. A factor Dr Dixon took into account was that Mr Ghilagabar had pain at T4. However, Dr Dias found tenderness from T3 to T8 and Dr Dryson in his re-examination on 18 December 2020 found tenderness to the right of the midline in about the T8 area[59]. I find these clinical findings are supportive of aggravation of the thoracic spine disease which appears more widespread than confined to T4.[59] Reply p 57.
I find Dr Dryson does support the conclusion that Mr Ghilagabar has degenerative disease in his thoracic spine. As noted previously, the doctor also expressed the opinion that the high reach forklift required significant twisting of the thoracic spine and said Mr Ghilagabar may well have experienced pain from this work. He does not consider whether the work aggravated the underlying disease however, applying the principles discussed in El-Archi an applicant needs to demonstrate that the evidence shows that employment was the main contributing factor to the aggravation injury. I consider that the passages that I have referenced from Dr Dryson’s reports do support such a conclusion, particularly when one takes into account the evidence in October 2014 by Bounce Rehab that Mr Ghilagabar was working with poor thoracic posture, in 2015 the general practitioner notes suggest pain was being experienced beyond the right shoulder and then references to the back appeared in the medical certificates in 2016. This evidence when considered together, I find, does support that the work was aggravating the underlying degenerative changes in the thoracic spine over time.
By the time Mr Ghilagabar was examined by Dr Dias in 2017, his examination findings revealed significant muscular guarding on palpation of the thoracic spine from T3 to T8 regions and a reduction by a third for rotation to the right. Dr Dias diagnosed chronic right sided thoracic spine pain, secondary to recurrent musculoligamentous strains. Dr Dias was satisfied the work caused a thoracic injury, however, I have not placed weight on his finding about causation because he also did not have available to him the bone scan showing the widespread degenerative changes. However, I find his examination findings are relevant when considered together with the other evidence I have summarised above. This evidence demonstrates that from 2014 Mr Ghilagabar’s thoracic spine was becoming increasing symptomatic on a background of degenerative changes and his work involved at least significant twisting and poor thoracic posture.
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[60] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[60] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“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 cause 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It has to be acknowledged that the evidence in this matter is not ideal. It would have been desirable for Mr Ghilagabar’s solicitors to have checked even the Medicare records to see if there were two x-rays, or with Dr Hanna or Dr Lim. Also, it would have been helpful had the x-ray films relating to the report of 9 November 2016 been viewed and expressly commented upon. An applicant has the onus of proof. This case has been discontinued many times in the past. However, I consider the respondent’s submissions arguing for a finding of an award for the respondent in relation to a thoracic spine injury, while pointing to the deficiencies in the evidence, do not really take into account the evidence when read as a whole. Applying Kooragang, a commonsense evaluation of the causal chain requires a consideration of all of the available evidence.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[61] 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 34; (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.”
[61] [2008] NSWCA 246, Nguyen.
Having considered all of the evidence as a whole, I feel an actual persuasion of the existence of the fact that Mr Ghilagabar’s work particularly on the high reach forklift did cause an aggravation of his thoracic spine. I am satisfied that the evidence read together does support a finding under section 4(b)(ii) of injury having been sustained to the thoracic spine with his work being the main contributing factor to the aggravation of disease.
The assessment of permanent impairment is a matter for a Medical Assessor. Dr Dias and Dr Dixon have provided similar assessments based on DREII of 5% WPI, although their assessments are not the same in their rationale. Dr Dias included an extra percentage for the effect on the activities of daily living, but Dr Dixon does not. It is not part of my role to determine the correctness or otherwise of their assessments. In relation to the claim for lump sum compensation Mr Ghilagabar relies on the assessment of Dr Dixon which is 5% WPI. This is only relevant to my decision when I turn to consider if the lump sum claim can be referred to a Medical Assessor because the threshold in section 66 is greater than 10% permanent impairment. The claim for injury to the thoracic spine, on its own, is not sufficient to pass this threshold. If, however, I determine the alleged injury to the other claimed body parts results from the “same incident”, then the thoracic spine can be included in a referral to a Medical Assessor provided all the assessments claimed combine to greater than 10%.
Right shoulder
The respondent accepts that Mr Ghilagabar had an injury to his right shoulder on 31 May 2006 and an aggravation in 2014. In its submissions it summarises the evidence about the injury in 2006 and argues that the incident and claim form refer to Mr Ghilagabar feeling pain in his right shoulder when using the runner machine when using the throttle. The respondent notes there are no treating records before the Commission from 2006. I note the only contemporaneous medical evidence in 2006 is the medical certificate of Dr Levett dated 9 August 2006 referring to right shoulder pain and a date of injury of 31 May 2006[62]. Dr Field’s certificate dated 10 August 2006 states the injury happened by “development right shoulder pain, gradual onset, he attributes it to repetitive gripping of and on pallet machine[63]”. There are certificates dated 17 and 24 August 2006 dealing with restriction on work tasks.
[62] ARD p 348.
[63] ARD p 349.
There are progress notes from the general practitioner from 16 February 2008[64] with many attendances by Mr Ghilagabar and the first mention of shoulder pain is in the entry on 28 August 2014 which refers to a painful right shoulder at work in certain positions and that it was worst on 25 August 2014. The doctor noted it happened on and off at work[65]. I note these clinical records have further entries about the right shoulder on 11,18, 20 October, 8, 27 November, 6 and 20 December 2014, 27 February, 2 May and 3 July 2015, where the records end.
[64] ARD p 395.
[65] ARD p 403.
To gain an understanding of Mr Ghilagabar’s work duties in this timeframe the Bounce Rehab physiotherapy reports of Matthew Craig give some details. He assessed
Mr Ghilagabar on 10 April 2014 about his feet pain and states for six weeks Mr Ghilagabar said he had been standing for eight hours per day on a “a pallet ‘runner’ (stand up forklift)”. There is also reference to him then working on a seated forklift[66]. While the report is concerned with the foot complaints, Mr Ghilagabar’s physical and functional capacity was assessed. Active mobility in all planes were normal and lifting status from waist to shoulder and shoulder to ceiling were normal. Bounce Rehab reported on a psychological assessment on 5 June 2014[67]. There is no mention of shoulder issues. It is noted that Mr Ghilagabar agreed to increase to two hours with the runner and six hours with the packer duties.[66] ARD p 367.
[67] ARD p 364.
On 24 July 2014 Bounce Rehab details the slow increase in upgrades at work noting that
Mr Ghilagabar’s normal pre-injury duties involve four hours standing on and off a runner style forklift and four hours rotated on a non-weight bearing forklift or standing forklift[68]. There is no mention of shoulder issues.[68] ARD p 361.
On 16 October 2014 Bounce Rehab did a workplace review and noted that Mr Ghilagabar reported the onset of right shoulder symptoms as a result of operating the forklift for longer periods, operating the forklift lever. (I infer TM means Team Member and is a reference to
Mr Ghilagabar). The following aspects of the physical work duties were noted:“TM reports a gradual onset of right shoulder pain with operating the forklift lever. Currently TM reports having pain that 'builds up' at the rear of his shoulder (posterior capsule and infraspinatus muscle-tendon junction), with mild discomfort in the right upper trapezius, right mid-thoracic facet joints and at times the anterior shoulder (bicep/pectoralis tendon) ➔ TM reports trouble only with sustained operation of the forklift lever. He has no trouble lifting heavy weights or with any other motions or activities at work or at home.
This activity requires the TM to stabilise the right elbow on a padded surface located directly beside the body (minimal shoulder abduction), the lever requires external and internal rotation of the right shoulder (between 20-30 degrees) on a regular basis. These duties can be performed incorrectly and with poor postural awareness by TM's.
The TM's symptoms correlate highly to performing this work duty with poor postural technique (see below for details) resulting in unnecessary accumulation of rotator cuff and upper trapezius fatigue. [69]”[69] ARD p 371.
In the absence of mention of right shoulder pain in the doctor’s records from 2008 until August 2014 and, noting the findings of the Bounce Rehab examination in April 2014, it is perhaps open to conclude that whatever was the nature of the right shoulder injury in 2006 it did not persist. The list of payments dated 23 April 2007 reveals very little paid by workers compensation for time off or treatment[70]. However, Mr Ghilagabar says in his statements he did have intermittent symptoms in his right shoulder since then.
[70] ARD p 7.
Mr Ghilagabar in his statements dated 15 April 2015, 5 May 2016 and 26 April 2021 says he injured his right shoulder after lifting one heavy box over his head. However, as the respondent submits the contemporaneous incident report and claim form do not refer to lifting a heavy box. He attributed his right shoulder pain at that time due operating the runner machine. This version is consistent with the 2006 medical certificates that do not mention lifting a box and specifically refer to injury by gradual onset.
An MRI scan was performed at the request of Dr Lim on 5 November 2014 which showed an “8mm bursal sided partial thickness tear at the anterior margin of the supraspinatus near the rotator interval. Some reactive oedema within the adjacent bone. Mild to moderate subacromial/subdeltoid bursitis”[71]. On 4 December 2014 at Dr Lim’s request Mr Ghilagabar underwent an ultrasound guided injection in his right shoulder[72].
[71] ARD p 425.
[72] ARD p 428.
Dr Lim referred Mr Ghilagabar to Dr Perko who reported on 5 November 2015. Dr Perko noted that Mr Ghilagabar had intermittent problems since 2006 but has generally managed his work. He notes that pain was more severe that year (being 2015) and that Mr Ghilagabar had been given alternate duties operating a high lift forklift. He states that the operating lever requires him to hold the arm at shoulder height in an abducted internally rotated position which is causing more shoulder pain. Dr Perko refers to Mr Ghilagabar having had physiotherapy treatment at Blacktown Hospital but recommended a further exercise regime[73].
[73] ARD p 431.
On 18 October 2016 an MRI scan of the right shoulder was performed at the request of
Dr Lim. The radiologist concluded there was tendinotic distal supraspinatus tendon with small partial thickness tearing anteriorly, small amount of fluid in the subacromial bursa and minor cartilage loss humeral head[74].[74] ARD p 70.
In 2017 Dr Dias had a history that his symptoms never completely resolved after 2006 but they did improve in around 2007 or 2008. He records that on 25 August 2014 Mr Ghilagabar experienced worsening symptoms of right shoulder pain with having to adjust the gears and pull levers on the high reach forklift machine on a repetitive basis. He mentioned seeing
Dr Perko again in 2016. Dr Dias concluded that Mr Ghilagabar suffers from chronic right shoulder impingement syndrome, secondary to a partial thickness tear of the supraspinatus tendon. Dr Dias attributes the right shoulder (and other body parts injured) to nature and conditions of employment since 2004[75].[75] ARD p 83.
On 29 March 2018 at Dr Di Francesco’s request an x-ray and ultrasound was undertaken of the right shoulder revealing a 14mm partial thickness tear at the articular surface of the supraspinatus[76].
[76] ARD p 94.
On 18 May 2018 Dr Soo reported to Dr Lim, of the same practice. Dr Soo noted worsening right shoulder pain[77]. The doctor has a limited history of injury in 2004, 2006 and 2016. He does not really assist on determining causation although he does refer to repetitive injury to the right shoulder whilst working as a storeman for Kmart.
[77] ARD p 95.
Dr Dixon in 2020 found on examination that Mr Ghilagabar had stiffness on elevation of the right shoulder and notes the planes of restricted movement[78]. As noted previously Dr Dixon refers to causation with all the body parts injured being due work over the years in the employ of the respondent.
[78] ARD p 457.
Dr Dryson in his 2014 report under past medical history refers to symptoms eight years earlier (which I infer is 2006) with Mr Ghilagabar saying that the 2014 pain was different to that in 2006. He said Mr Ghilagabar believed the pain in 2006 came from driving a forklift. In this first report Dr Dryson expressed doubt the right shoulder problem in 2014 would have been caused by operating the high reach forklift because he relied on Mr Craig from Bounce Rehab with his comments about the physical requirements of operating the machine. But as with the thoracic spine, Dr Dryson did not take into account that Mr Craig expressed concern about the way Mr Ghilagabar was actually operating the machine which was causing the right shoulder pain.
After viewing the MRI scan report Dr Dryson in his report dated 17 November 2014 noted the fact there was some reactive oedema suggests this was of recent origin[79]. However, again relying on Mr Craig in how the machine should be operated Dr Dryson concluded that the work could not have caused the right shoulder symptoms. In his report dated 30 October 2019 Dr Dryson adheres to his reliance upon his understanding of Mr Craig’s evidence. He does not refer to Mr Craig’s finding, quoted above, that “the TM's symptoms correlate highly to performing this work duty with poor postural technique (see below for details) resulting in unnecessary accumulation of rotator cuff and upper trapezius fatigue”. As a consequence,
Dr Dryson concludes that the supraspinatus tendinosis is a degenerative condition associated with age and in his earlier report he stated it had not been aggravated by the work.[79] Reply p 24.
In his report dated 11 January 2021 Dr Dryson states on page 12 that in relation to the right shoulder he may have suffered a tear to the supraspinatus tendon as long ago as 2006 but he adheres to the view that the high reach forklift does not involve the use of the shoulder on abduction or flexion. However, in the Bounce Rehab report of 16 October 2014 while
Mr Craig found pain free range of motion he states “However, his clinical presentation classically results eventually in tendinopathy of the rotator cuff and increased risk for neck referred pain if the TM continues to move inappropriately while operating the forklift”.
Mr Craig goes further on the next page expressing his concern about observing
Mr Ghilagabar having in fact poor mechanics such as sitting with the forklift seat too high, not using the camera screens not using the elbow pad correctly, which he states: “leads to shoulder abduction, scapular protraction and impingement or compression to the rotator cuff tendons”.Given Dr Dryson was so reliant upon Mr Craig’s description of the physical requirement of the work, I find it was incumbent on him to take into account all of Mr Craig’s opinion about his actual observations of Mr Ghilagabar operating the forklift. Mr Craig envisaged this could lead to shoulder abduction issues, yet Dr Dryson found “the high reach forklift does not involve the use of the shoulder on abduction”.
Therefore, I find I can place no weight on Dr Dryson’s opinion about the cause of the right shoulder condition as being unrelated to his work. I accept Dr Dixon’s opinion because it is consistent with that of Mr Craig’s observations as to how Mr Ghilagabar was actually physically using the forklift. Clearly the findings on MRI in the shoulder can be viewed as part of a disease process. It is not clear if the injury in 2006 caused a tear in the shoulder,
Dr Dryson considers that is possible. I find that the 2006 injury was not a so-called frank injury or a personal injury under section 4(a) of the 1987 Act, but rather an injury of gradual onset. There is no contemporaneous evidence that in 2006 Mr Ghilagabar injured his shoulder by lifting one heavy box. The contemporaneous incident report, claim form and the 2006 medical certificates support a section 4(b) type injury.I find that it is appropriate to regard the right shoulder injury as encompassing the presentation in 2006, 2014 and thereafter as part of the “same incident”. All these presentations involved use of the machinery at work. Various stresses were placed on the right shoulder as observed by Mr Craig by the use of this machinery. Dr Perko provides evidence of a worsening over time of the right shoulder condition. I find at the very least the requirements of section 4(b)(ii) of the 1987 Act have been met by the evidence, that
Mr Ghilagabar’s work with the respondent was the main contributing factor to aggravation of disease process in his shoulder. I find the presence of reactive oedema, as found in the 2014 MRI scan, to be significant noting Dr Dryson stated this suggests recent origin. This is consistent with Mr Ghilagabar’s account in his statements that the work particularly in 2014 was causing increasing symptoms in his right shoulder. This is also consistent with his presentation as recorded in his general practitioner’s notes and to Mr Craig at Bounce Rehab.In terms of the lump sum claim, Mr Ghilagabar relies on the assessment of Dr Dixon of 8% WPI. I note that Mr Craig’s evidence to my mind is significant because the same work duties were responsible for the right shoulder injury and injury to the thoracic spine. It supports Dr Dixon’s conclusion. I find even though different body parts are involved these injuries should be assessed together pursuant to section 66(2) of the 1987 Act and section 322(3) of the 1998 Act which provide if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury.
As the combined claim for the thoracic spine and the right shoulder is greater than 10% WPI, a referral can be made to a Medical Assessor to assess the permanent impairment together.
Plantar fasciitis/ ankles
The respondent agrees Mr Ghilagabar has plantar fasciitis which manifest in 2012. The respondent submits that this injury is due to walking and standing and so there is a different mechanism of injury to that of the right shoulder. I find there is considerable force in this submission. The mechanism of injury to the feet and/ or the ankles is quite distinct from that of the right shoulder and thoracic spine. I find it is not enough to argue the respective injuries all arose out of the work duties over many years. The requirement of their being the “same incident” needs to have been properly addressed in the evidence. I find in this regard
Dr Dixon’s approach is not sufficiently reasoned. In relation to considering the mechanism of injury in relation to the thoracic spine and right shoulder, I have taken some time to carefully consider all of the evidence because of my concerns about a broad-brush approach being taken by Dr Dixon to the issue of causation.Even though plantar fasciitis may also be viewed as an injury under section 4(b)(ii) of the 1987 Act, I find it did not arise from the “same incident” as that involving the right shoulder and thoracic spine. The plantar fasciitis and ankle conditions arose from the standing and walking occasioned as a result of the varied work duties.
The lump sum claim is based on Dr Dixon’s assessment of 4% for the left ankle/sub-talar joint, 3% for the right ankle/sub-talar, and 1% each for the left and right plantar fasciitis. All of these claims when combined together do not reach the greater than 10% threshold under section 66 of the 1987 Act. Therefore, if they arise from a different “incident” to that of the right shoulder and thoracic spine, they cannot be assessed together with those injuries, notwithstanding they are also injuries under section 4(b)(ii) of the 1987 Act.
In his submissions Mr Ghilagabar at [70(b)] to [72] relies on Cemco (Australia) Pty Ltd t/as Carrall’s Engineering and Mining v Carrall[80], however he only references the one sentence at [60] in Cemco “there is no doubt that the impairments assessed as a consequence of the ‘nature and conditions’ injury are capable of being assessed together since they clearly arose out of the same ‘injurious event’”. But in Mr Ghilagabar’s case, for reasons explained above, I have found the right shoulder and thoracic spine have arisen from the one injurious event yet the injury to the feet and/or ankles arise from a different injurious event. Mr Ghilagabar’s submissions appear to say that if all the body parts injured arise from “nature and conditions of employment” and the date of injury is the same, then they can be aggregated. However, I consider this approach glosses over a true consideration of the cause of the injury. By using the term “nature and conditions of employment”, which does not appear in the workers compensation legislation, focus is taken away from properly considering how the injury arose. In my view, this is an essential step to determine if the injury to the respective body parts arose from the “same incident”. Mr Ghilagabar’s submissions [70(b)] also assert if the same date of injury occurs then the injuries can be assessed together. However, this is not what the legislation states, the relevant phrase in section 322(3) is the “same incident”.
[80][80] [2009] NSWWCCPD 76, Cemco.
In Ozcan v Macarthur Disability Services Ltd[81] the Court of Appeal considered sections 65(2) of the 1987 Act and section 322(3) of the 1998 Act. The facts in Ozcan are materially different to that in Mr Ghilagabar’s case. In Ozcan the worker injured the thoracic spine, lumbar spine and right shoulder in 2011 and in 2012 the lumbar and thoracic spines. Crucially the Court held at [16]:
“The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.”
[81] [2021] NSWCA 65, Ozcan.
The Court then found at [22]:
“…because the first spinal injuries contributed to the later ones, the impairments ‘resulting from’ the later injuries, as with those ‘resulting from’ the first, ‘arose out of’ the incident in which the first were suffered, thereby attracting s65(2) of the 1987 Act and s322(3) of the 1998 Act.”
At [14] in Ozcan the Court explained, when referring to State Insurance Commission v Oakley[82],
“where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, [with the result that] the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence.”
[82] (1990) 10 MVR 570 at 573, Oakley.
I find as a matter of fact, having considered all of the evidence, that there is no causal link between the injury to the right shoulder and thoracic spine on the one hand and the foot/ankle injury. Neither type of injury “resulted from” the other.
In addition, I note that the respondent has disputed the presence of injury to the ankles. It is appropriate I deal with this aspect even though it will not change the ultimate outcome that I have reached that is the right shoulder and thoracic spine injuries can be referred to a Medical Assessor to be assessed together, but the foot/ankle cannot because they arise from separate incidents and the claimed foot/ankle permanent impairment assessments when combined do not reach the greater than 10% permanent impairment threshold. In the Court of Appeal decision in Sukkar v Adonis Electric Pty Ltd[83] at [78] Justice McColl found a claim for 9% WPI did not satisfy the threshold in section 66(1) of the 1987 Act and so there was no entitlement to have such a claim referred for assessment by an Approved Medical Assessor (now called a Medical Assessor).
[83] [2014] NSWCA 459, Sukkar.
In relation to the question as to whether there has been injury to the ankles,
Mr Ghilagabar’s solicitors submits at [14] of their original submissions that the incident report includes reference to pain in the ankles.The incident report made on 13 September 2013 refers to the date of incident 20 November 2012 when Mr Ghilagabar was working on a runner for eight hours per day for six weeks straight and that over time he felt pains in his ankles and feet[84]. Later in the form it is noted that Mr Ghilagabar would feel pain at the bottom of his feet if he was picking or putting away stock and getting on and off the pick machine would aggravate the pain[85].
[84] ARD p 25.
[85] ARD p 27.
On 15 December 2012 there is an entry in the general practitioner’s progress notes referring to the left heel and calf during the course of his work since 10 November 2012 and on 3 August 2013 there is a reference to left heel pain and a diagnosis recorded on 24 August 2013 of plantar fasciitis. On 29 August 2013 there is a lengthy entry about bilateral heel pain and reference to his work duties. There is no reference to ankle issues however in an entry on 20 September 2013 the pain was documented as being in the medial left knee, down the medial leg, ankle and heel. Mr Ghilagabar was wearing an ankle guard[86]. Thereafter, there continue to be references to plantar fasciitis. Ankle pain is mentioned on 28 August 2014[87].
[86] ARD p 400.
[87] ARD p 403.
Dr Breit in report dated 18 March 2014 describes the work involving standing for an eight- hour shift and that Mr Ghilagabar started to get pain in his heels, ankles, calves and later the medial tibial flare on both sides. In his examination Dr Breit found no tenderness around the ankle itself but subtalar movements were restricted to about one third bilaterally. He concluded that Mr Ghilagabar had bilateral plantar fasciitis associated with tight calf muscles.
Bounce Rehab in report dated 24 July 2014 refer to the bilateral plantar fasciitis developing over a six- week period while Mr Ghilagabar was statically standing for eight hours a day on a pallet runner (stand up forklift). The history is taken that the pain was located on the under-surface of both feet extending proximally along the medial ankle tendons and medial gastrocnemius. Physiotherapy consisted of manual therapy and dry needling including to the medial tendons of the foot and ankle, calf and subtalar/midfoot joint mobilisations. The physiotherapist performed special tests consisting of palpation and found no pain on tissue manipulations of the plantar-fascia or medial tendons of the ankles. Ankle/foot range of motion was normal[88].
[88] ARD p 362.
On 3 November 2014 Dr Dryson advised that Mr Ghilagabar had bilateral plantar fasciitis that was now resolved, as demonstrated from his normal examination findings.
On 13 February 2015 Dr Di Francesco wrote a referral to Dr Rozario relating to the left calf and heel pain from work duties, standing for long periods. No mention is made of the ankles.[89] Various medical certificates refer to bilateral plantar fasciitis and calf pain. But do not refer to an ankle injury.
[89] ARD p 416.
In report dated 30 March 2015 Dr Rozario reports to Dr Di Francesco that
Mr Ghilagabar has longstanding plantar fasciitis. She says “on examination there was the suggestion of mild left Achilles tendinitis but no other problems of note”[90].[90] ARD p 38.
Mr Ghilagabar’s submissions at [21] argue that the physiotherapy records are critical. This is a reference to Mr Craig’s Bounce Rehab report dated 10 April 2014 noted above. In this report there is a finding of significant left calf wasting and increased ankle fluid retention at night due to secondary disuse of his calf muscles. The physiotherapy treatment outlined in report dated 24 July 2014 included manual therapy and dry needling to the medial tendons of the foot, ankle, calf and subtalar/ midfoot joint mobilisations[91].
[91] ARD p 387.
In his report dated 30 October 2019 Dr Dryson reviewed the heel ultrasounds dated 15 August and 3 September 2013, which were not previously available to him. He states these confirm that Mr Ghilagabar had plantar fasciitis and it was reasonable to attribute this to his work. He noted the MRI scan of 20 August 2014 supported the conclusion the injury had resolved. However, Mr Ghilagabar told him that the foot symptoms recurred on the return-to-work program when he had to undertake prolonged standing. Dr Dryson records the current symptoms as involving the heel pads of both feet, extending up the back of the calves.
Dr Dryson concluded that an up-to-date scan was required to see if Mr Ghilagabar’s complaints, which he said are subjective, amount to a recurrence of the plantar fasciitis[92]. He later added, a recurrence would be consistent with his current report of heel pain[93].[92] Reply p 45.
[93] Reply p 46.
Dr Dixon in his October 2020 report records that on examination Mr Ghilagabar had normal gait but heel walking was associated with pain with antalgic gait. He found tenderness at the insertion of the plantar fascia to both heels and stiffness of his ankle with dorsi flexion 5 degrees and right ankle 10 degrees and plantar flexion of both ankles was 25 degrees bilaterally. There was stiffness on eversion on the left subtalar join to 5 degrees.
Dr Dixon refers to the ultrasound of the left heel on 15 August 2013 showing plantar fasciitis with an enthesophyte at the Achilles tendon insertion as well. Dr Dixon says, “this is consistent with restricted range of motion of his left ankle[94]”.[94] ARD p 459.
In his diagnosis Dr Dixon does not list the ankles as an injury but in his permanent impairment assessment he refers to post traumatic stiffness of both ankles, and to the subtalar joint when assessing range of motion. He adds that the stiffness of the left and right ankles is due to heel cord tightness with Achilles tendinosis.[95]
[95] ARD p 463.
In Dr Dryson’s report dated 11 January 2021 he records Mr Ghilagabar’s complaints of ongoing pain in the feet, calves and heels[96]. On examination Dr Dryson found provocative testing did not produce pain in the plantar fascia. Dr Dryson said if an updated MRI revealed plantar fasciitis it would not be due to his work with the respondent because, since the MRI scan in 2014, he has not been operating standing forklift and his work has been seated[97].
I note that injury to the plantar fascia has been found and whether the effects of that injury result in permanent impairment is a matter for a Medical Assessor. Dr Dryson comments on Dr Dixon’s opinion and says plantar fasciitis would not cause ankle joint and sub-talar joint stiffness. He notes Dr Dixon attributes it to tightness with Achilles tendonitis. Dr Dryson said he could see no radiological evidence of this. In a further report dated 14 May 2021[98], Dr Dryson advises there is a difference between the plantar fascia and ankle structures. He says plantar fasciitis would not normally cause pain in the calves. However, I find it is of significance that Dr Dryson does not explain why Mr Ghilagabar had calf pain. The fact that Mr Ghilagabar had calf pain is, in my view, made out by the constant reference to it in the medical certificates and general practitioner notes.[96] Reply p 54.
[97] Reply p 62.
[98] Reply p 67.
In his report dated 24 June 2021 Dr Dixon notes that the physiotherapist referred to left sided Achilles tendinosis and Mr Ghilagabar presented to Dr Dixon in October with stiffness in the left ankle and hind foot which he stated is due to favouring his left heel which did have Achilles tendinitis, resulting in more weight bearing on the right ankle and sub-talar joint with post traumatic stiffness of the ankle and sub-talar joint. Dr Dixon further explains:
“While the MRI of both feet on 20 August 2014 did not apparently show Achilles tendinosis the ultrasound of the left heel on 15 August 2013 showed tendo Achilles enthesophyte which is, a "tug" lesion, secondary to Achilles tendonitis and at its insertion to the os calcus (calcaneum). The claimant still had heel cord tenderness when examined on 19 October 2020, consistent with the physiotherapist's findings.”
I consider the opinion of Dr Dixon should be preferred to that of Dr Dryson because
Dr Dryson does not explain the presence of calf pain, whereas Dr Dixon does by reference to the physiotherapist’s records. Dr Rozario had also found some left Achilles tendinitis.
I consider that the appropriate finding on the evidence is that in addition to plantar fasciitis
Mr Ghilagabar has suffered conditions affecting his ankles and sub-talar regions.However, as I have stated the claims for lump sum compensation in relation to the plantar fasciitis, ankles and sub-talar regions do not, when combined, meet the threshold in section 66 of the 1987 Act. In these circumstances, following Sukkar I will not include those body parts in a referral to the Medical Assessor.
Date of injury
The last matter to deal with was not canvassed adequately by the parties in their submissions or when the matter was listed for arbitration hearing and that involves what is the correct date of injury. In the original submissions by Mr Ghilagabar from [75] it is submitted the relevant date of injury for a disease injury is the final date of employment. Reference is made to section 18 of the 1987 Act. However, section 18 does not apply as it states in (1) that the “subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation”. This situation does not arise in Mr Ghilagabar’s case.
At [77] it is argued on Mr Ghilagabar’s behalf that the date of the claim cannot be the date of injury as this would only be the case if no incapacity arose from the injury, referring to sections 15 (1)(a)(ii) and 16(1)(a)(ii) of the 1987 Act. Section 15 does not apply as I have found injury under section 4(b)(ii), aggravation of disease injuries.
The Court of Appeal considered section 16 of the 1987 Act in SAS Trustee Corporation v O'Keefe[99]. Handley JA (with McColl JA agreeing) succinctly summarised the relevant cases from [95] to [100] and found:
“[101] The cases establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant. Any injury by permanent impairment (s 16(3)), is deemed to have happened when the lump sum claim is made.”
[99] [2011] NSWCA 326, O’Keefe.
Also, more recently in Saad Bros Motor Pty Ltd v Simon[100]Roche DP followed O’Keefe. These cases and other relevant cases are discussed more fully in a decision of mine in Dunn v Roads and Maritime Services[101].
[100] [2014] NSWWCCPD 22, Simon.
[101] [2017] NSWWCC 36, Dunn.
Therefore, I find the correct date of injury should be the date of the lump sum claim which is 23 November 2020[102].
[102] ARD p 466.
However, as the parties have not made submissions concerning these authorities when considering the date of injury, I give them liberty to apply on three days-notice to the other party if they wish to submit a different date of injury applies.
SUMMARY
Accordingly, the findings and orders are:
(a) pursuant to section 4(b)(ii) of the 1987 Act Mr Ghilagabar sustained injury to his thoracic spine and right shoulder;
(b) pursuant to section 66 (2) of the 1997 Act and section 322(3) of the 1998 Act the injuries to the thoracic spine and right upper extremity (shoulder) arise from the same incident and are to be assessed together for permanent impairment;
(c) the date of injury for the injuries to the thoracic spine and right upper extremity (shoulder) is the date of the compensation claim, 23 November 2020;
(d) the lump sum claim in relation to injury to the thoracic spine and right upper extremity (shoulder) is remitted to the President for referral to a Medical Assessor to assess permanent impairment.
(e) the documents to be referred are to include those in evidence before me together with a copy of this Certificate of Determination/Statement of Reasons;
(f) the injury involving bilateral plantar fasciitis, ankles and sub-talar regions arise from a different incident to the injuries to the thoracic spine and right upper extremity (shoulder), and
(g) the claims for lump sum compensation for injury involving bilateral plantar fasciitis, ankles and sub-talar regions do not meet the threshold in section 66 of the 1987 Act and are not to be referred for assessment of permanent impairment.
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