Ghorbanali v S Pars & B Pars - [2021] NSWPIC 52

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ghorbanali v S Pars & B Pars [2021] NSWPIC 52
APPLICANT:	Esmail Ghorbanali
RESPONDENT:	S Pars & B Pars
MEMBER:	Jacqueline Snell
DATE OF DECISION:	29 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits and medical and related treatment expenses resulting from multiple injuries sustained on 24 March 2018; the respondent placed injury in issue (save for injury to the cervical spine), and incapacity and treatment in issue; Held– the applicant sustained injury to his head (in the nature of a contusion), cervical spine, right shoulder on 24 March 2018 during the course of his employment with the respondent, with the applicant’s employment with the respondent being a substantial contributing factor to injury; as a consequence of these injuries the applicant’s pre-existing psychological injury deteriorated; the applicant had no current capacity for work since 24 March 2018 and the respondent is to make payments of weekly compensation under sections 36 and 47 of the 1987 Act accordingly; the applicant’s PIAWE is to be adjusted in accordance with section 82A of the 1987 Act; the respondent is to receive credit for payments made during the period of the applicant’s entitlement to weekly compensation; the applicant required medical treatment and services as a consequence of the injuries he sustained and the respondent is to pay the applicant’s medical and related treatment in accordance with sections 59 and 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant sustained injury to his head (in the nature of a contusion) in the course of his employment with the respondent, with the date of injury of 24 May 2018. The applicant’s employment with the respondent was a substantial contributing factor to injury. 2. As a consequence of the injury the applicant has sustained to his cervical spine, right shoulder and head (in the nature of a contusion) in the course of his employment with the respondent, the applicant’s pre-existing psychological injury has deteriorated. 3. Award for the respondent relevant to alleged injury the applicant sustained injury to his thoracic spine, his lumbar spine, his left shoulder, his left hand and his right hand. 4. The applicant’s pre-injury average weekly earnings are agreed at $1,530. The applicant has had no current work capacity since on or about 24 May 2018 due to the injuries he has sustained. The applicant has an entitlement to weekly benefits payable under ss 36 and 37 of the Workers Compensation Act 1987. The respondent is to make payments of weekly compensation to the applicant in accordance with s 36(1)(a) of the Workers Compensation Act 1987 from 24 May 2018 to 23 August 2018 at the rate of $1,453.50. The respondent is to make payments of weekly compensation in accordance with s 37(1)(a) of the Workers Compensation Act 1987 from 24 August 2018 to 24 November 2020 at the rate of $1,224. The applicant’s PIAWE is to be adjusted in accordance with s 82A of the 1987 Act. The respondent is to receive credit for payments made during the period of the applicant’s entitlement to weekly compensation. 5. The applicant requires medical or related treatment for the injuries he sustained to his head (in the nature of a contusion), cervical spine and right shoulder and for the consequential deterioration of his pre-existing psychological injury. The respondent is to pay the applicant’s medical and related treatment in accordance with ss 59 and 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Esmail Ghorbanali (the applicant) is 36 years of age. He was employed by S Pars & B Pars (the respondent) as a painter. While the applicant reportedly said he commenced working with the respondent in approximately December 2017, the respondent reportedly said the applicant only worked with the respondent between 15 May 2018 and 29 May 2018. On 24 May 2018 the applicant sustained injury in the course of his employment with the respondent when he hit his head on a low roof while standing on a scaffold (the incident).
In his initial application before the Commission the applicant alleged that in the incident he sustained injury to his head, cervical spine, thoracic spine, left shoulder, left hand, right shoulder, right hand, and primary psychological injury. By consent the application was amended to delete reference to the word “primary”.

The claim for compensation in these proceedings involved the following:
(a) Weekly benefits payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 24 May 2018 ongoing. Although the applicant was paid up to 30 September 2019 the applicant said he may not have been paid at the appropriate rate.
(b) Medical treatment or related expenses payable under s 60 of the 1987 Act (General Order).

The respondent issued notice in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 12 August 2019. The applicant was informed on that occasion that liability for weekly compensation and medical and related treatment relevant to his neck and right shoulder injury was disputed. The respondent issued further notice in accordance with s 78 of the 1998 Act on 17 June 2020. The applicant was informed on that occasion that although liability was accepted for his cervical spine injury, liability for alleged injury to his lumbar spine and left upper extremity (shoulder) was disputed. Liability for weekly compensation, medical and related treatment expenses was also disputed.
In the Reply lodged and served in these proceedings, the respondent clarified that the only injury alleged by the applicant for which liability was accepted was the injury he had sustained to his cervical spine. The respondent foreshadowed intention to seek leave under s 289A of the 1998 Act to dispute the following injuries on the basis the Application to Resolve a Dispute (ARD) was the first notice of injuries and/or claims:

(a)    psychological injury, primary and/or secondary;
(b)    thoracic spine;
(c)    head (post traumatic headaches/behaviour impairment), and
(d) both upper extremities (shoulders, arms and hands) to the extent the notices issued under s 78 of the 1998 Act do not address those injuries

The matter proceeded to arbitration hearing on 11 February 2021 and 3 March 2021.
Jon Trainor of counsel appeared for the applicant, instructed by Khatera Ziayee, solicitor. Ross Stanton of counsel appeared for the respondent, instructed by David Veasey, solicitor. The applicant was present and assisted by an interpreter, Ms Mozhgan. Ms Murphy from EML was also present.

Respondent’s application for leave to dispute alleged injury to the thoracic spine, head, both upper extremities and psychological injury

Submissions

Both counsel made oral submissions, which I have considered. As a copy of the recording is available to the parties, I merely set below a brief summary of the submissions.

Respondent’s submissions

Through Mr Stanton of counsel, the respondent made application for leave under s 289A of the 1998 Act to dispute alleged injury to the applicant’s thoracic spine, head, both upper extremities to the extent the notices issued under s78 did not address alleged injury to both upper extremities, and psychological injury.
Mr Stanton indicated the claim initially lodged involved injury to the cervical spine and the respondent accepted there was injury to the neck and there is no change to that position. At some point the respondent appeared to have also accepted injury to the right shoulder. The respondent had disputed alleged injury to the lumbar spine and also the left shoulder.
This application for leave by the respondent sought to dispute all the asserted injuries except the injury to the cervical spine. The respondent submitted the further allegations of injury came into the applicant’s claim through the service of the opinion of Dr Abraszko, which was rather late in the piece. It was appropriate for the respondent to have the ability to dispute those further injuries.

Applicant’s submissions

Through Mr Trainor of counsel, the applicant said he made no comment relevant to the respondent’s submissions regarding alleged injuries to the applicant’s head, thoracic spine, lumbar spine and left upper extremity. Relevant however to alleged psychological injury,
Mr Trainor said he would be seeking leave to amend the application to delete reference to primary psychological injury, with reference made purely to “psychological injury”.
In terms of the respondent’s application for leave to dispute alleged injury to the right upper extremity, the applicant opposed leave being granted and referred me to the matter of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[1]. Mr Trainor said the respondent had previously indicated an acceptance of injury to the right shoulder, and while Mr Stanton candidly admitted he did not know why the right shoulder injury had been accepted and Mr Trainor indicated that he did not know why either, clearly there must have been evidence available to the respondent at the time that led to an acceptance of liability for the right shoulder injury the applicant had sustained. Mr Trainor said the applicant did not know what that evidence was and that was a serious prejudice for the applicant. The applicant opposed leave being granted to the respondent to now place alleged injury to the right shoulder in issue. The applicant submitted that I could not be satisfied in circumstances where the respondent had admitted liability for the right shoulder injury that the applicant was not prejudiced if leave was now granted to dispute liability for the right shoulder injury.

Determination of the respondent’s application for leave to dispute alleged injury to the thoracic spine, head, both upper extremities and psychological injury

[1] [2007] NSWWCCPD 227.

The respondent had foreshadowed for some time an intention to seek leave under s 289A of the 1998 Act to dispute a number of alleged injuries as the ARD was the first notice of these injuries and/or claims. I carefully considered the submissions made by counsel and was mindful of the discretion contained in s 298A(4) as set out in Mateus.
I accepted in the circumstances of this particular matter where the respondent had accepted liability for injury to the right shoulder, there would be prejudice to the applicant if leave was now granted to the respondent to dispute liability for injury to the right shoulder. I granted leave to the respondent to place in issue the alleged injuries to the thoracic spine, head, left shoulder, left hand, right hand and psychological injury. I refused leave to the respondent to now place in issue the previously accepted injury to the right shoulder.

ISSUES FOR DETERMINATION

The parties agree that the following issues is not disputed:

(a) pre-injury average weekly earnings (PIAWE) are agreed at $1,530; and
(b) the respondent is to be receive credit for payments made during the applicant’s entitlement to weekly compensation (if any).

The parties agree that the following issues remain in dispute:

(a)   alleged injury to the head, thoracic spine, left shoulder, left hand, right hand, and psychological injury;
(b)   capacity, and
(c)   requirement for medical or related treatment.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Documents dated 20 November 2020 lodged by the Applicant and attached documents (A AALD 1);
(d)    Application to Admit Documents dated 8 December 2020 lodged by the Respondent and attached documents (R AALD), and
(e)    Application to Admit Late Documents dated 11 February 20201 lodged by the Applicant (A AALD 2).

Oral Evidence

Neither party sought leave to adduce oral evidence or cross-examine any witnesses.

FINDINGS AND REASONS

Review of the evidence

A brief summary of evidence follows.

The applicant’s statements

In his statement dated 16 September 2020[2] the applicant said he was employed by his friend Ben as a painter. He said that on 24 May 2018 he was at a job in Winston Hills. He said Ben had told him on the telephone that he had to move the scaffold and he and the owner moved it. The applicant said “I then climbed the scaffold and hit my head on the low roof. I felt really dizzy but held on to the scaffolding. I felt pain straight away in my head, neck and I was crying. My neck got twisted and I heard a crack in my neck”.
[2] ARD at page 183.
The applicant explained that he attended on Dr Shekarchi who practiced out of Hassall Grove Medical Centre, and while Dr Shekarchi said that he would fill out a “WorkCover form” for him, the applicant told him not to as Ben had told him on the telephone not to tell the doctor that he had hurt his neck at work. Dr Shekarchi gave him tablet medication for pain and put a brace around his neck. Dr Shekarchi also sent him for a scan. Dr Shekarchi ultimately provided the applicant with a WorkCover certificate on 5 July 2018, which the applicant sent to Ben on 10 July 2018.
After he sustained injury on 24 May 2018 Ben asked the applicant to return to work, which he did for a couple of days, but he couldn’t cope with the work. The applicant said he has not been able to return to work because of the physical injuries and psychological injuries.

Worker’s injury claim form

The applicant’s worker’s injury claim form was dated 30 July 2018[3]. In his claim form the applicant indicated that at the time he sustained injury on 24 May 2018 he was climbing a scaffolding to paint the ceiling. In response to specific question as to what happened and how it was he was injured, the applicant said:
“there were 2 levels of ceiling, one was lower than the other. As I climbed up the scaffolding I hit my head hard on the lower one, and heard multiple clicks. I fell to the ground crying in pain and my employer advised me to seek medical treatment”.

Factual report

[3] ARD at page 180.

A Factual Investigation Report dated 5 October 2018 was prepared by LS Partners[4] and while the applicant was described as being co-operative during the investigation, the respondent was described as being “somewhat elusive”. The statement provided by Benjamin Pars by telephone was unsigned.
[4] Reply at page 23.
The applicant reportedly “alleged that on 24 May 2018 he suffered a neck injury, whilst climbing scaffolding when he struck his head on a low ceiling”. The applicant reported the incident to the respondent by telephone the same day.
The investigator reported that at the time the applicant provided his statement to the investigator “he appeared to be in significant discomfort and pain”.

Treating medical evidence

HGMC

Clinical records relevant to the applicant were provided by HHGMC Pty Ltd[5]. The clinical records demonstrated the following information:
[5] R AALD 2 at page 1.
(a)    The applicant has a past history of thyroid cancer, and although medicated he presented on 24 September 2017, being well prior to the incident, with associated complaint that includes anger and agitation. He was prescribed antidepressant medication. The applicant continued to present throughout late 2017 and early 2018 with complaint of stress, depression and irritability that was affecting his relationship with his wife. He was advised to attend counselling.
(b)    Examination on 24 September 2017 also reportedly demonstrated “spinal tenderness and reduction on spinal curve” and the applicant was referred for
x-ray cervical spine, thoracic spine and lumbo-sacral spine. A GP Management plan dated 30 September 2017 noted the applicant presented in part with “back pain radiating to buttock”.
(c)    While there is no reported complaint regarding his right shoulder relevant to consultation on 10 February 2018, the applicant is referred for ultrasound scan of his right shoulder with notation of “(shoulder pain, restricted in all movement, SI and SS, R/O frozen shoulder and bursitis)”.
(d)    Relevant to the incident, Dr Shekarchi relevantly noted on 24 May 2018:
“head trauma and neck trauma at work after head to sky folder
exam shows bruise and tenderness on forehead
neck shows bruise and tenderness on forehead
neck tenderness, C4-C7
denied blurred vision
denied nausea but can not move head and neck
restricted and tender
advise about collar
refer urgently for Xray and CT
after 2 hr check up pain is better
they call and mention Ct indicated
done
all normal
reassured advise about pain killers
refused WC, advise to information is here and he can apply for that
Diagnosis:
Head trauma
Neck injury
Reason for visit:
Head trauma
  Neck injury
Actions:
Imaging request printed: Plain x-ray – Cervical spine, Plain X-ray – Skull (head trauma, neck pain, radiculopathy to the L arm, bruise on the frontal bone, R/O linear Fx and vertebral Fx)”.
(e)    When the applicant returned on 17 June 2018, Dr Bagherian noted on this occasion there was a minor disc bulge at C3/4 and C4/5.
(f)    The applicant continued to attend the practice with complaint of neck pain (and also complaint of headache and mental fragility) and while on 27 July 2018
Dr Shekarchi noted neck pain with radiculopathy “after fall”, on review on 8 September 2018 he recorded:
“trauma to head when was walking to scaffold and heat his headache
he never has had fall, was misunderstanding at the beginning
mentioned has had trauma to head and neck
still in pain
better with physiotherapy”
(g)    When the applicant consulted with Dr Shekarchi on 25 October 2018, the applicant also made complaint of shoulder pain, with restricted movement on the right side worse than left. The applicant was referred for bilateral shoulder ultrasound, which reportedly demonstrated bursitis.
(h)    Throughout 2018 the applicant continued to attend the medical practice with complaint of neck pain, shoulder pain, mental fragility and also occasional complaint of headache.
(i)    On 15 February 2019, following the applicant’s attendance at hospital due to pain, with specific complaint that the applicant’s headaches were not responding to medication, Dr Shekarchi referred the applicant for MRI scans relevant to his brain and his neck, with the brain imaging demonstrating a small lump.
(j)    The applicant continued to attend the medical practice with multifarious complaint and on 12 March 2019 the applicant was again referred for bilateral shoulder ultrasound scan.
(k)    On 10 April 2019 the applicant presented with significant deterioration in his mental health, with Dr Shekarchi recording on that occasion the applicant was suicidal and hearing voices. The following week Dr Shekarchi noted the applicant’s mood had improved with medication and referred the applicant for left shoulder cortisone injection, which the applicant ultimately came to with reported mild relief.
(l)    On 5 June 2019 the applicant’s complaints to Dr Shekarchi included complaint of back pain, and the applicant was referred for x-ray lumbo-sacral spine and MRI Scan lumbar spine, with the clinical history noted in terms of “work trauma, headache, back pain, radiculopathy, R/O disc herniation”.
(m)     The applicant continued to attend the medical practice on a regular basis with complaint of pain and mental health fragility, and on 12 August 2019 the applicant is referred for further MRI scan of the brain, with the clinical history noted in terms of (head trauma (frontal), headache, not responding to the treatment, last MRI was on Feb and now neurosurgeon asking for review due to chance of DAI).
(n)    On 16 October 2019 the applicant complained his back pain was deteriorating, and on this occasion the applicant was referred for ultrasound of his left shoulder and CT scan of his lumbar spine.
(o)    In a certificate for the Department of Home Affairs dated 26 October 2019,
Dr Shekarchi provided opinion the applicant’s “primary condition” was cervical spine trauma with radiculopathy with an onset date of 24 May 2018 and his “secondary/other condition” was major depression and anxiety disorder with an onset date of 22 October 2017.
(p)    The applicant continued to attend the medical practice on a regular basis with ongoing complaint of pain and mental health fragility and when last reviewed by Dr Shekarchi on 3 December 2020, Dr Shekarchi recorded:
“shoulder pain
back pain
neck pain
depressed mood
anxiety
radiculopathy
after injection was OK for 3 days then pain started
advise about physiotherapy and consultation
advise about the small mass in brain
advise to do MRI for follow up
agreed
Actions:
Imaging request printed: MRI Scan – Brain (headache which not responding to treatment, R/O brain mass (please compare MRI’s)”.

Although Dr Shekarchi provided a report dated 28 January 2020[6], the report is clearly in response to a request for information from the applicant’s solicitors. The report is difficult to understand without review of the solicitors’ request, which is not before the Commission.
[6] ARD at page 202.
In a later report dated 7 August 2020 addressed to the applicant’s solicitor[7] Dr Shekarchi indicated that as a result of the incident the applicant’s “…pain started, his lifestyle has been changed and his mood goes through the depression and anxiety…”. While Dr Shekarchi provided comment the applicant had sustained injury to his cervical spine, lumbar spine, thoracic spine, both shoulders, both wrists and “primary psychological injury”, other than explaining that the shoulder and wrist injuries were “a consequence of the neck injury”, he provided no explanation as to the cause of the injuries other than to say that the applicant’s employment with the respondent was the substantial contributing factor to injury.

Dr Dowla

[7] AALD A 1 at page 1.

The applicant consulted with Dr Dowla and Dr Dowla provided a report dated 8 September 2018[8] . Dr Dowla noted a nerve condition and EMG study showed no evidence of focal or generalised neuropathy. Dr Dowla provided comment the applicant may benefit from review by a pain physician as he could find no any definite cause for his neck pain.
[8] ARD at page 86.
Dr Dowla described the incident occurring in the following terms:
“Apparently while he was plumbing he hit a scaffold above the head causing severe neck pain. He did not fall. He stopped working and was unable to go back to work effectively”.

Associate Professor Eftekhar

Associate Professor Eftekhar (A/P Eftekhar) is a neurosurgeon and the applicant consulted with him on 31 October 2018. A/Prof Eftekhar provided a report dated the same day[9]. A/Prof Eftekhar described the incident occurring in the following terms:
“… he climbed onto scaffold whilst working in a two level ceiling home. He did not see the lower ceiling and sustained a head injury with significant cervical extension at the time. He had immediate onset of midline axial cervical pain with a burning sensation extending into his bilateral shoulder and interscapular regions. He had subjective associated weakness and paraesthesia along the medial aspect of the forearm and into the medial half of the middle, left ring and fifth digits”.
[9] ARD at page 81.

A/Prof Eftekhar noted the applicant had not been working in his pre-injury duties since the incident. He noted the applicant’s main concern as axial cervical pain. While A/Prof Eftekhar considered the applicant’s “upper limb symptoms are currently manageable” he suggested referral for EMG and nerve conduction studies if the numbness persisted.

Dr Abul Razak

The applicant consulted with Dr Abdul Razak on 13 November 2018 relevant to the thyroidectomy he previously underwent for thyroid cancer. Dr Abdul Razak reported on that occasion[10] that ultrasound and clinical examination was “reassuring of ongoing remission of previously resected thyroid cancer”. Dr Abdul Razak relevantly reported the applicant told him he had sustained a neck injury at work that prevented him from working.

Blacktown Hospital

[10] ARD at page 80.

The applicant attended Blacktown Hospital on 8 February 2019. The ED Discharge Summary relevant to his attendance[11] recorded he presented with “acute on chronic neck pain”. The applicant was treated with analgesia and discharged with follow up with his general practitioner.

Dr Mirzaio

[11] ARD at page 78.

Dr Mirzaio is a psychiatrist with who the applicant consulted. Dr Mirzaio provided a report dated 3 April 2019[12]. In his report Dr Mirzaio described the applicant as having been in receipt of workers compensation benefits since May 2018, with the applicant having told him “he has developed a herniation of his cervical discs”. The applicant reported pre-existing psychological problems with initial improvement with medication but deterioration after the workplace incident occurring in May 2018. Dr Mirzaio noted the applicant reported a sense of being watched by an existence he could not clearly describe and reported hearing voices. Following mental state examination Dr Mirzaio provided opinion the applicant suffered from a major depressive disorder of severe severity with melancholic features. He said “I cannot rule out the possibility of low grade psychosis or frontal damage through a pervious head trauma” and cautioned the applicant required regular risk assessment as he could be risk to others or to himself. Dr Mirzaio noted that the applicant previously worked in a clothing production business in Iran prior to coming to Australia by boat with his wife and then two year old son. He spent some time in a detention centre before being transferred to the community where he engaged in different types of labouring work until the incident.
Dr Mirzaio described the applicant as not yet having been interviewed so as to enable his residential status to be determined.

Dr Deshpande

[12] ARD at page 76.

The applicant came under the care of Dr Deshpande for pain management, with
[13] Reply at pages 94 and 95.
Dr Deshpande reporting on 14 May 2019[13]. Dr Deshpande described the incident occurring in terms of the applicant hitting his head “while doing an inspection for paint jobs”.
The applicant’s “current pain issues” were described by Dr Deshpande to include cervical axial pain, stiffness to the shoulder, radicular pain left C8/T1 distribution and impact on psychological and physical function. Physical examination demonstrated normal gait and posture with no wasting noted in the shoulder girdle or upper limbs. The range of motion in the cervical spine was however noted as limited in extension and lateral rotation. While neurological examination demonstrated subjective loss to the sensation in the left upper limb, this was without dermatological pattern and the left shoulder range of motion was within normal limits.

Dr Ghahreman

The applicant consulted with Dr Ghahreman, neurosurgeon. Dr Ghahreman reported on 3 May 2019[14]. Dr Ghahreman noted the applicant had sustained work-related injury and reported:
“[U]pon extending his head he collided with an object causing forced cervical spinal movement, a scalp haematoma and severe neck pain which has continued with fluctuating intensity over the past year”.
[14] A AALD 1 at page 14.
Dr Ghahreman noted radiation of symptoms into the applicant’s scapula and shoulders, particularly on the left side into his arm and some lateral fingers. Following clinical examination and review of the diagnostic imaging, Dr Ghahreman concluded inflammation at the site of the disc bulges and facet joints that resulted from the incident precipitated the applicant’s symptoms of pain.
Dr Ghahreman advised the applicant to consider a repeat MRI brain scan relevant to the finding of the lesion, for the purposes of monitoring growth.

Pinnicle Rehab

Arrangement was made for the applicant to undergo functional assessment relevant to his “neck injury following head trauma” sustained in the incident and a Functional Capacity Evaluation Report dated 30 November 2018 was prepared following assessment on 23 November 2018[15]. The applicant was assisted at assessment by an interpreter.

[15] Reply at page 59.

The history of injury is reported in the following terms:
“Mr Ghorbanali reported that while at work on 24/05/2018 he was asked to assist the builder with moving some scaffolding and to spray paint a new area. Mr Ghorbanali reported that the building he was working on had two ceilings and that he did not see the lower one. He advised that as he moved across he hit his head on the lower ceiling, and heard a click in his neck.
Mr Ghorbanali reported that he grabbed a bar to steady himself and his colleagues assisted him off the scaffolding…”.
The applicant said at the time of assessment that while he initially had pain in the left side of his neck, this had now spread and he felt pain also between his shoulder blades. He said he also had pain throughout his whole left arm, with numbness in his 4^th, 5^th and half of his 3^rd finger on his left hand. The applicant reported an increase in irritability since his injury and significant fear avoidance behaviours were observed. Relevant to evaluation, Pinnicle Rehab reported in part that the applicant was observed to have a greater range of movement in his neck and shoulders in incidental tasks, when not being directly assessed.
Ultimately, in concluding the applicant had no current capacity to undertake his pre-injury duties but had current capacity to work four hours each day for three days each week (with nominated restrictions of lifting/carrying up to 4kg, pushing/pulling up to 5kg and standing up to 30 minutes) Pinnicle Rehab reported the applicant presented with significant psychosocial barriers to recovery and return to work, comment with which Dr Shekarchi agreed.
Arrangement was also made for the applicant to undergo ADL assessment, and a Activities of Daily Living report dated 13 December 2018 was prepared following assessment on 4 December 2018[16]. The assessment was completed at the applicant’s residence and there is no reference to the applicant being assisted by an interpreter at assessment.
[16] Reply at page 69.
The history of injury is reported on this occasion in the following terms:
“Mr Ghorbanali advised that he was instructed by his supervisor to move scaffolding when the injury occurred. Mr Ghorbanali advised that he proceeded to dismantle the scaffolding when he bumped his head on the ceiling. Mr Ghorbanali advised that he felt a sudden pain in his neck and hear a “sound”, but managed to get off the scaffolding to the ground”.
An attempt to return to work was noted as a resumption of “work duties approximately 6 months ago, performing his Pre-Injury duties, but stopped working after two days, as he did not cope with his work demands due to pain symptoms”.
The applicant presented at assessment with the following complaint:

(a)    Pain in every part of his body;
(b)    Pain symptoms reportedly started in the left side of the neck “but due to sleeping on the right side only”, are now on the right side of the neck and shoulders bilaterally, and
(c)    Pain into the left upper limb, with numbness on the ulnar side.

Independent medical evidence

Dr Cameron

The applicant was assessed by Dr Cameron, in his capacity independent medical consultant, on 5 March 2019. He provided a report dated 14 March 2019[17]. Dr Cameron noted the medical information that was made available to him at the time of reporting and it was evident the applicant was assisted by an interpreter at assessment.
[17] Reply at page 83.
The applicant denied any previous neck/shoulder problems, and presented at assessment with complaint of pain down both arms and a “burning sensation in his back and neck”. The applicant described pain in his left shoulder “all the time”, intermittent pain referred to his elbow and occasional numbness in his lateral 2 ½ fingers.
As regards the history of injury, Dr Cameron said:
“I had to obtain the history through an interpreter. I read some of the history from the specialist letters and he confirmed this was correct. In summary, on 24/5/18, he hit the left side of his head whilst dismantling scaffolding, pushing his head to the right. There was no loss of consciousness, but he said he was dizzy afterwards”.
Dr Cameron noted the applicant’s return to work “… ‘for one day’ but couldn’t cope with the pain”.
Following clinical examination Dr Cameron provided diagnosis in terms of pre-existing cervical spondylosis with referred shoulder pain. Dr Cameron also provided comment in the following terms:
“The nature of injury (hit on the left side of head pushing it the right) and the MRI findings are consistent with aggravation of previous asymptomatic (from his history) cervical spondylosis. …I cannot reconcile his subacromial bursitis with the injury described”.
Dr Cameron accepted the applicant suffered pain as a result of the injury he had sustained in the incident and cautioned the duration of his symptoms was difficult to predict, in the absence of specialist review. Dr Cameron provided comment of definite psychosocial overlay.
Relevant to the applicant’s capacity for work, Dr Cameron provided opinion the applicant was unfit for his pre-injury duties and would “never be able to return to this type of work”. He considered however the applicant was fit to work suitable duties four hours each day, five days each week. He nominated restrictions as being no work above shoulder height, varied posture as required, regular breaks and no lifting over 5kg.

Dr Casikar

The applicant was assessed by Dr Casikar, in his capacity as independent medical examiner, on 31 July 2019. Dr Casikar is a neurosurgeon. Dr Casikar provided a report dated 9 August 2019[18]. Dr Casikar listed a number of medical reports and diagnostic imaging reports that were made available to him at the time of reporting and confirmed that the applicant was assisted by an interpreter at assessment. Relevant to the MRI scan of the brain Dr Casikar noted it demonstrated “an incidental suspicious tumour in the region of the right ventricle” and provided comment that it was possible this was an ependymoma.
[18] Reply at page 88.
Dr Casikar noted a past medical history of the applicant having had thyroid cancer in 2015 with comment “He is now depressed, and he is on medication”.
Dr Casikar reported an employment history of the applicant having been a domestic painter for the last one and a half years and not having worked since he sustained injury in the incident. Dr Casikar reported the history of injury occurring in the following terms:
“On 24/05/2018, when he was on scaffolding, he hit the roof on the top of his head. He felt dizzy. His other colleagues helped him down”.
Dr Casikar described the applicant as having consulted Dr Shekarchi with complaint “he could not move the head and he had neck pain”.
The applicant reportedly presented with initial complaint of pain in the neck “and then added further symptoms in the lumbar spine”. Following clinical examination and review of the diagnostic imaging which included MRI cervical spine dated 30 June 2018, MRI lumbar spine dated 19 January 2019 and MRI brain dated 18 February 2019, while cautioning that “it was very difficult to be certain of the exact mechanism of the injury”, Dr Casikar provided diagnosis in the following terms:
“Axial-loading injury; pre-existing degenerative disease of the cervical and lumbar spine. Pain focussed issues.”
Dr Casikar also said:
“Mr Ghorbanali had an axial-loading injury on 24/5/2018. This seemed to have been a very minor injury. … The axial loading impact on the cervical spine was very minimal. His subsequent symptoms are difficult to evaluate. He seems to be complaining of pain in the back and in the neck. Axial loading injuries to the head do not produce problems in the lumbar spine. In my opinion, his problems are mainly due to the constitutional degenerative disease of the cervical and lumbar spine”.
In response to specific questioning, while Dr Casikar said it was reasonable to accept there was an aggravation of “moderate pre-existing degenerative disease” the applicant had due to the axial loading injury the applicant sustained to his head, he considered such aggravating injury “should have recovered in about a week’s time”. As regards alleged bilateral shoulder bursitis, Dr Casikar said this was not due to the incident but was due to constitutional degenerative disease. Dr Casikar provided comment relevant to the medical reports with which he had been provided.
Dr Casikar essentially said he was of the view the applicant did not have “any verifiable evidence of workplace injury”. Relevant to treatment, Dr Casikar provides no comment, probably because he was not asked to comment. Relevant to the applicant’s capacity for work, Dr Casikar was of the view the applicant suffered no incapacity for work due to the aggravating injury he had sustained in the incident as this had resolved. He said the applicant should be able to return to his pre-injury duties without restriction. Dr Casikar was however of the view the applicant’s current incapacity for work resulted from his emotional issues.

Dr Abraszko

The applicant was assessed by Dr Abraszko, independent medical examiner, on 12 December 2019. Dr Abraszko is a neurosurgeon and spinal surgeon. Other than diagnostic imaging it is not evident what other information relevant to the applicant was made available to Dr Abraszko at the time of reporting, and it is not reported that the applicant was assisted by an interpreter at assessment.
Dr Abraszko provided a report dated 8 March 2020[19]. Relevant to the incident, Dr Abraszko reported that according to the applicant:
“… he was working on scaffolding. The builder was trying to fix the scaffolding. One of the pipes dropped from the scaffolding, and he was trying to fix the pipe, pulled himself upwards and hit his head severely on the ceiling. He heard some cracking noise, and he was quite disoriented. He was too scared to go down the scaffolding, so he waited until help came up to him…. Someone called the business owner and the owner called an Uber to take Mr Ghorbanali to the local doctor… He was advised to take time off work 10 days.”

[19] A AALD 2 at page 1.

The applicant presented with a number of complaints which included significant neck symptoms that radiated down to his left shoulder into his elbow and 4^th and 5^th fingers, low back pain, headaches and irritability. Following clinical examination and review of the numerous radiological investigation reports made available to her and which are extensively canvassed in her report, Dr Abraszko provided diagnosis in the following terms:
“Mr Ghorbanali provided consistent history with radiological examination and neurological finding as a result of his work-related injury.
He injured his head and injured his neck and the lower back. He also injured his left shoulder since he tried to reach at that time for the pipe.
The injuries are consistent with the mechanism described by the patient.
He sustained a minor head injury and suffers from posttraumatic headaches.
He sustained musculoligamenotus injuries to the cervical spine with small C5/C6 disc protrusion and suffers from constant neck pain.
He sustained injury to the left ulnar nerve injury, whilst he had a fall.
He sustained musculoligamenotus injuries to the left shoulder whilst he was stretching the left shoulder at the time of injury.
He suffers from supraspinatus tendinosis and subacromial bursitis.
He sustained a musculoligemntous injury to the low back.
He suffers from psychological sequelae of the injury.
He is also very depressed.”

Dr Abraszko provided no diagnosis of right shoulder injury.
Dr Abraszko recommended the applicant undergo complex pain management, psychological assessment and neuropsychological assessment. She provided comment there was no surgical solution for the applicant’s cervical spine and lumbar spine problems. She considered prognosis to be guarded.
In Dr Abraszko’s opinion the applicant had no current capacity for work. She said “his injuries made him completely unemployable in the current economic situation”. In saying this Dr Abraszko provided opinion that after complex pain management “he may be fit for some sedentary light duties, part time…”. She accepted however that the applicant had no skills or training or expertise to be employed in such a position.
While the claimant’s claim for permanent impairment compensation is not before me, I note Dr Abraszko did provide an assessment of permanent impairment resulting from injury the applicant sustained on 24 May 2018 in terms of 3% whole person impairment resulting from head injury for mild limitation of interpersonal function, 7% whole person impairment resulting from injury to his cervical spine (including ADLs), 5% whole person impairment resulting from injury to his lumbar spine, 5% whole person impairment resulting from injury to his left shoulder, and 1% whole person impairment resulting from left ulnar nerve injury.

Submissions

Both counsel made lengthy oral submissions, which I have considered. As a copy of the recording is available to the parties, I merely set below a very brief summary of the submissions.

Respondent’s submissions

Through Mr Stanton of counsel, the respondent noted the applicant had been in receipt of weekly compensation up until 30 September 2019 and any entitlement the applicant had to weekly compensation under s 37 of the 1987 Act would expire on 24 November 2020.
Mr Stanton spent considerable time reviewing the medical records and reports provided by the applicant’s treating doctors and noted the applicant’s main concern was his cervical spine. Mr Stanton made reference in particular to the neurosurgeon report of A/Prof Eftekhar and Dr Ganko dated 31 October 2018 and said this report was useful in that it was possibly the first attempt by a treating doctor to record a reasonably comprehensive history, with the last two paragraphs canvassing the diagnostic imaging and the applicant’s main concern being his cervical spine. There was no discussion of thoracic or lumbar spine and while there was mention of shoulders, this was in the context of symptoms referred from the cervical spine, not injury to the shoulders. Mr Stanton said the same applied to mention of forearms, this was in the context of symptoms referred from the cervical spine, not injury to the arms. It was highly improbable the applicant sustained injury to shoulders, hand, mid spine or low spine in the incident. Mr Stanton noted the applicant’s oncologist’s brief report, the clinical records of Blacktown Hospital, the report of Dr Deshpande, the report of Dr Ghahreman and the voluminous earlier medical certificates issued by the general practitioner are all consistent with the applicant having neck symptoms. While the more recent medical certificates provided diagnosis of injury to body parts other than the cervical spine and also primary psychological injury, Mr Stanton queried how this could be. Mr Stanton submitted these more recent certificates could not be relied on particularly so where the doctor had recorded “NIL” relevant to pre-existing factors in circumstances where there was evidence of pre-existing problems with the applicant’s cervical spine and right shoulder. Relevant to the allegation of head injury, while Dr Mirzaie made diagnosis of major depressive disorder and made mention that he could not rule out the possibility of head trauma, Mr Stanton pointed out that this has been investigated with the MRI scan of 26 August 2019 demonstrating there was no evidence of traumatic brain injury. Dr Abraszko also did not believe the applicant had suffered a brain injury and she had the benefit of the MRI scan referred at the time of assessment.
Relevant to Dr Abraszko’s opinion overall, Mr Stanton submitted that apart from injury to the cervical spine, I would not accept her opinion for a number of reasons including the fact she made no reference to pre-existing injury, no history is taken of injury sustained to the low back, mid back, shoulders etc., and all diagnostic imaging is post-injury. Furthermore,
Dr Abraszko took a history of the applicant having suffered a blow to the head, and there is no explanation as to how that mechanism of injury caused injury to the low back, mid back, shoulders etc. Relevant to the applicant’s fitness for work, Dr Abraszko provided opinion based on diagnosis of multiple injury, including injury to the cervical spine, and I would not be persuaded the applicant is not fit for work merely because of the injury he sustained to his cervical spine.

Mr Stanton then canvassed opinion provided by Dr Cameron, who he noted had the assistance of an interpreter, and provided a reasonable history of the incident that was consistent with other histories. However the applicant deliberately misled Dr Cameron when he told him that he had not had previous neck and shoulder problems. This said, Mr Stanton submitted Dr Cameron’s opinion relevant to the applicant being fit for restricted work and hours and his opinion relevant to diagnosis of injuries, carried weight.

Mr Stanton submitted Dr Casikar’s opinion however was the most reliable opinion provided because of the history taken by him. At the time of assessment Dr Casikar was of the view the work-related injury the applicant had sustained to his cervical spine “had passed” and I could conclude the applicant had not had any incapacity for work since the time he was assessed by Dr Casikar. In the event I was against Mr Stanton relevant to Dr Casikar’s opinion, then regard could be given to Dr Cameron’s opinion the applicant could work 20 hours each week, which would provide him with a residual ability to earn approximately $600 each week.

Relevant to medical and related treatment, Mr Stanton accepted that subject to the compensation period prescribed by s 59 the respondent accepted there may be some costs incurred in the past payable under s 60 of the 1987 Act in respect of the applicant’s cervical spine injury.

Applicant’s submissions

Through Mr Trainor or counsel, the applicant cautioned Dr Casikar had totally misunderstood the mechanism of injury that occurred in the incident, in that he reported a compression type injury to the applicant’s neck whereas the injury the applicant suffered was a significant flexion injury, which was demonstrated by the general practitioner’s notes. Mr Trainor pointed out too that the applicant had consistently said he heard a crack, this is in his statement and he had also told this to a number of doctors. There can be no doubt on the evidence that the incident involved the applicant’s head and neck.
Relevant to the applicant’s head injury, this appeared to be a bit of a mystery which troubled Dr Casikar and Dr Abraszko, and on the basis of their opinions I would be satisfied the applicant has sustained a significant head injury that has given rise to not only neurological injury but also low grade psychosis, the latter being opinion provided by Dr Mirzaio who was the only psychiatrist in this matter.

Relevant to the alleged psychological injury the applicant sustained, while it is evident the applicant had pre-existing psychological injury, Dr Mirzaio recorded a history of the applicant’s mental state deteriorating after the incident, which is consistent with Dr Shekarchi’s records. He also provided comment as to the possibility of low grade psychosis that appeared to have only arisen following injury. Mr Trainor said that primary psychological injury was not pursued in these proceedings, and with the pleading restricted to “psychological injury” I cannot find whether the injury is primary or secondary.
Relevant to the injury the applicant sustained to his neck, while Dr Casikar described it as minor, it was not minor in that the blow to the applicant’s head caused a bruise and was accompanied by a crack. It was a very significant injury that led to radiculopathy.
Relevant to the alleged injury the applicant sustained to his left shoulder, as the injury the applicant sustained was in the nature of a left side whiplash injury, such injury was capable of effecting muscles in the applicant’s left shoulder. Dr Casikar’s opinion was wrong because it was based on an incorrect mechanism of injury. Relevant to the alleged injury to the thoracic spine, there was complaint of interscapular pain. Relevant to the alleged injury to the lumbar spine, while it was true the complaint only came on one year after the incident, one needed to look at the violent nature of the incident, and on balance I would be satisfied the applicant sustained injury to his low back in the incident.
Relevant to the issue of incapacity, Mr Trainor submitted Dr Casikar’s opinion could not be accepted as he considered the injury the applicant sustained was minor when it was not. He pointed out the applicant had a pre-existing psychological injury that had been aggravated and a neck injury with discal damage giving rise to radiculopathy to his left arm, and I would be satisfied the applicant cannot work, and had not been able to work since he sustained injury in May 2018.
Mr Trainor made quite lengthy comment about Mr Stanton’s submission the applicant had lied to Dr Cameron and said that while there was a difference between the clinical records and what the applicant told Dr Cameron, this did not make the applicant a “liar”. It was possible that Dr Cameron made a mistake, which was not tested. I cannot be satisfied that the applicant lied to Dr Cameron.
Relevant to medical and related treatment, the applicant sought a General Order.

Respondent’s submissions in reply

In response to the applicant’s submissions relevant to post-traumatic brain injury, Mr Stanton pointed out there was no expert evidence addressing brain injury, with the highest comment coming from a psychiatrist, who spoke of nothing more than possible frontal damage from head trauma and who did not have a copy of the brain diagnostic imaging at the time of reporting. Dr Abraszko did not consider there was brain damage. I cannot be satisfied the applicant sustained brain injury, it is a mere possibility and not a probability. The same is said of the applicant’s submissions relevant to trauma caused psychosis in that Dr Mirzaio said it was a possibility not a probability.
Mr Stanton submitted that relevant to the pleading of “psychological injury”, it was preferable I make a finding of injury in diagnostic terms, and made reference to the matter of Connor v Trustees of Roman Catholic Church for the Archdiocese of Sydney (Connor)[20].
[20] (2006) WCCPD 124 at [46].

Applicant’s further submissions relevant to the matter of Connor

In response to Mr Stanton’s reference to the matter of Connor, Mr Trainor said specific reading of Connor at [46] did not support the respondent’s submission.

Determination

Injury

Injury sustained by the applicant to his cervical spine and right shoulder as a result of the incident is not disputed. Alleged injury to his head, thoracic spine, left shoulder, left hand, right hand is disputed, as is alleged psychological injury.
Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment. Section 4 of the 1987 Act must be read together with s 9A of the 1987 Act, which essentially provides no compensation is payable under the 1987 Act in respect of injury if the employment was not a substantial contributing factor to injury.
The law in relation to “substantial contributing factor” was considered by the NSW Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[21] and Da Ros v Qantas Airways Ltd[22]. It was said that for employment to be “a substantial contributing factor” to the injury for the purposes of s 9A the causal connection must be “real and of substance” and in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent they are relevant.
[21] [2009] NSWCA 324; DDCR 75.
[22] [2010] NSWCA 89.
Relevant to the issue of causation in Kooragang Cement Pty Ltd v Bates[23], 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.”
[23] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).

The applicant has the onus of proving that he sustained injury in the incident as alleged. This is a question of fact and consideration of her statement and all the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[24] 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).”
[24] [2008] NSWCA 246.

I confess to having experienced some difficulty in ascertaining what actually occurred in the incident which resulted in the applicant sustaining injury. In light of Mr Trainor’s submissions relevant to the history recorded by Dr Casikar in his report dated 9 August 2019, I considered it instructive to review the more contemporaneous reporting relevant to mechanism of injury. Dr Shekarchi took a note on the day of the incident of “bruise and tenderness on forehead”. A/Prof Eftekhar reported on 31 October 2018 and Pinnicle Rehab reported on 30 November 2018 that the applicant hit his head on the lower of two ceilings in the area in which he was working, which is consisted with the applicant’s description in his claim form dated 30 July 2018. Despite inconsistent descriptions elsewhere, I accept Mr Stanton’s submission
A/Prof Eftekhar and his co-author Dr Ganko was possibly the first attempt by a treating doctor to record a reasonably comprehensive history and I accept it to be more probable than not the applicant hit his forehead with significant force on a low ceiling while working with the respondent on 24 May 2018.
Liability is accepted for the injury the applicant sustained to his cervical spine on 24 May 2018 and (perhaps rather curiously) liability is also accepted for injury he sustained to his right shoulder in the same incident.

Diagnosis in the WorkCover Medical Certificates of Capacity issued over time by the applicant’s general treating practitioners has changed. While I note there is a report provided by Dr Shekarchi to the applicant’s solicitors, this report does not specifically address the change in early diagnosis (which is restricted to injury of the cervical spine) to injury of cervical spine, lumbar spine, thoracic spine, bilateral shoulder injury, bilateral wrist injury and primary psychological injury, and I consider these certificates issued by the applicant’s treating practitioners to be of minimal probative value. I am mindful of what was said by former President Keating in DHL Excel Supply Chain (Australia) Pty Ltd v Hyde[25]:

“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history of which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 46”.

[25] [2011] NSWWCCPD 22 at [93].

It is evident from the medical evidence before that the applicant’s main concern is his neck injury. After the incident the applicant made no complaint to Dr Shekarchi of symptoms in any body part other than his neck up until he consulted with him on 25 October 2018 with shoulder pain. Just a few days later the applicant consulted with A/P Eftekhar, and A/P Eftekhar recorded on 31 October 2018 the applicant’s main concern was neck pain. When the applicant consulted with with Dr Razak on 13 November 2018, the applicant apparently told him he had hurt his neck in the incident, and made no mention of any other body part. Even going into the following year, the applicant remained predominantly concerned about his neck, with attendance at Blacktown Hospital on 8 February 2019 with “acute on chronic neck pain” and in his report dated 3 April 2019, which is just under a year since the incident occurring on 24 May 2018, Dr Mirzaio reported the applicant told him he was in receipt of workers compensation benefits as he had “developed a herniation of his cervical discs” and made no mention of any other body part. It is true the applicant complained to Pinnicle Rehab on 23 November 2018 and 4 December 2018 of symptoms in his shoulders, left arm and left hand lateral 2 ½ fingers, but these complaints were comprehensively addressed by Dr Deshpande in his report dated 14 May 2019.

Dr Cameron addressed the applicant’s complaints at assessment on 5 March 2019. His complaints at that time included symptoms down both arms, with particular reference to persistent pain in the left shoulder and intermittent pain in the left arm and occasional pain in left lateral fingers. Dr Cameron provided opinion the applicant had sustained a cervical spine injury in the incident with referred pain into his shoulders. While Mr Stanton submitted the applicant deliberately misled Dr Cameron in that he failed to tell Dr Cameron about his pre-existing problems with his neck and right shoulder, in circumstances where Dr Cameron expressly said the applicant’s answers were coming through an interpreter and noted “answers that should have been yes or no often went on for a number of minutes” I do not accept the applicant deliberately misled Dr Cameron. Of note also is that neither Dr Casikar or Dr Abraszko take a history pre-existing problems with the applicant’s neck or right shoulder, although it is evident Dr Abraszko had available to her the right shoulder ultrasound dated 20 February 2018 that demonstrated subacromial bursitis.
Although Mr Trainor complained Dr Casikar totally misunderstood the mechanism of injury and proceeded to provide opinion relevant to causation based on his misunderstanding, the same can be said of Dr Abraszko who also appeared to misunderstand the mechanism of injury and proceeded to provide opinion based on her understanding. In circumstances where there is a plethora of reporting from treating specialists and with particular reference to the reporting of the pain specialist, Dr Deshpande, and the neurosurgeons, A/Prof Eftekhar, Dr Genko and Dr Ghahreman, I accept the applicant sustained injury to his cervical spine in the incident which resulted in referred symptoms into his shoulders and left arm and three of his left lateral fingers. I do not accept the applicant sustained injury to his thoracic spine, his lumbar spine, his left shoulder, his left hand and his right hand in the incident occurring as other than the reports of Dr Shekarchi and Dr Abraszko there is no evidence to support such allegation and neither Dr Shekarchi nor Dr Abraszko explain with any clarity how any of these particular body parts were injured in the incident.
As it is not controversial the applicant sustained a contusion when he hit his head in the incident I also accept the applicant sustained an injury to his head in the incident but only to the extent the injury sustained to the head was in the nature of a contusion. I do not accept the applicant sustained any type of brain injury in the incident, as this has been thoroughly investigated and discounted. As Mr Stanton rightly submitted the MRI scan of 26 August 2019 demonstrated no evidence of traumatic brain injury, with “appearances most likely reflecting a small ependymal nodule/hamartoma, grey matter heterotopia or alternative subependymoma – stable” [26], which was the incidental finding on the MRI scan of 18 February 2019[27]. There is no medical evidence that persuades me the applicant sustained brain injury as a result of the incident.
[26] Reply at page 100.
[27] ARD at page 88.
The applicant also alleged he sustained psychological injury as a result of the incident.
Mr Trainor confirmed that a claim for primary psychological injury was not being pursued in these proceedings and with the pleadings restricted to “psychological injury” I cannot find whether the psychological injury was primary or secondary. Mr Stanton submitted it was preferable that I make a finding of injury in diagnostic terms if possible and referred me to the matter of Connor, which Mr Trainor said did not assist the respondent.

I do not agree with Mr Trainor’s submission because in workers compensation matters involving psychological injury, definitions of “primary psychological injury” and “secondary psychological injury” are specifically provided in s 65A of the 1987 Act. A primary psychological injury is defined to mean a psychological injury that is not a secondary psychological injury, and a secondary psychological injury is defined to mean a psychological injury to the extent that it arises as a consequence of, or secondary, to a physical injury. In these current proceedings it is evident from the medical evidence, with particular reference to the reporting of Dr Dowla, Pinnicle Rehab, Dr Cameron, Dr Abraszko and Dr Deshpande, that the applicant’s complaints of pain are widespread and opinion is provided that he would benefit from multi-disciplinary pain management approach, which included psychological and psychiatric intervention. Although in his report to the applicant’s solicitors Dr Shekarchi made reference to “primary psychological injury” there is no evidence Dr Shekarchi had considered all the facts and appropriate history in providing such comment.
In circumstances where there is only opinion from one psychiatrist, that being opinion of
[28] [2009] NSWWCCPD 32.
Dr Mirzaio, I accept the applicant suffers major depressive disorder against a background of pre-existing psychological problems, and while there was initial improvement with medication prior to the incident, the applicant’s mental health subsequently deteriorated after the incident. I accept too that when taking everything into account, with particular reference to the considerations propounded in Cannon v The Healthy Snack People Pty Ltd[28], the deterioration that occurred in the applicant’s pre-existing psychological injury after the incident is an injury in the nature of a secondary psychological injury.
I do not accept Mr Trainor’s submission that the head injury the applicant sustained in the incident gave rise to a low grade psychosis, as this is not a diagnosis provided by Dr Mirzaio who merely said “I cannot rule out the possibility of low-grade psychosis or frontal lobe damage through a previous head trauma”.
For the reasons discussed above I accept the applicant sustained injury to his head (in the nature of a contusion) in the incident occurring on 24 May 2018 during the course of his employment with the respondent as defined by s 4 of the 1987 Act, and I accept his employment with the respondent was a substantial contributing factor to such injuries as prescribed by s 9A of the 1987 Act. I also accept the applicant’s pre-existing psychological has deteriorated as a consequence of the injuries sustained to his head (in the nature of a contusion), his cervical spine and his right shoulder.

Capacity

Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity”.
While the applicant claims weekly benefits payable under ss 36 and 37 of the 1987 Act from 24 May 2018 ongoing, the applicant conceded he was in receipt of weekly compensation up until 30 September 2019. The applicant however queried as to whether the rate at which he was paid weekly compensation was at the correct rate. In submissions, Mr Stanton pointed out any entitlement the applicant had to weekly compensation paid under s 37 of the 1987 Act would expire on 24 November 2020.
It is not disputed the applicant sustained injury to his cervical spine and right shoulder in the incident. I accept the applicant sustained injury to his head (in the nature of a contusion) in the incident and I also accept the applicant’s pre-existing psychological injury deteriorated as a consequence of the injuries sustained. It follows the applicant may have an entitlement to weekly compensation payable under the Act.
Assessment of the applicant’s capacity for work since 24 May 2018 requires consideration as to whether he has “a current work capacity “or has “no current capacity” as defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”
‘Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)Having regard to:

(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and

(b)regardless of:

(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place or resident.”

The applicant initially ceased work on 24 May 2020. There is some inconsistency as to when the applicant ultimately ceased work after an attempted return to work, but in circumstances where the applicant was in receipt of weekly compensation up until 30 September 2019 this matters not.
In his statement the applicant does not specifically address capacity for work other than to say “I have not been able to return to work as a result of my physical and psychological injuries.” Mr Trainor submitted on the evidence that I would be satisfied that the applicant had been totally incapacitated for work since the incident occurring on 24 May 2018.
I am mindful of Mr Stanton’s submissions and also of Dr Cameron’s opinion relevant to the applicant’s capacity for work. In circumstances however where it is evident the applicant has no current capacity for his pre-injury duties and the applicant described his previous employment in terms of “bus driver” and “uber driver”, having regard to the applicant’s age, education, skills and work experience, I am not satisfied the applicant has a current capacity to return to work in suitable employment. I draw comfort in reaching such conclusion having learned from Dr Mirzaio the applicant previously worked in a clothing production business in Iran prior to coming to Australia by boat with his wife and then two year old son and spent some time in a detention centre before being transferred into the community where he engaged in different types of labouring work until the incident. When contemplating a possible return to work on suitable duties by the applicant, Dr Abraszko also expressed concern about the level of applicant’s skills, training and expertise.

Quantification of entitlement to weekly benefits

The applicant’s PIAWE is agreed at $1,530.
In accordance with s 36(1)(a) of the 1987 Act the applicant’s entitlement to weekly benefits is:
$1,530 x 95% - 0 = $1,453.50
In accordance with s 37(1)(a) of the 1987 Act the applicant’s entitlement to weekly benefits is:
$1,530 x 80% - 0 = $1,224.

The applicant’s entitlement to weekly benefits is to be indexed in accordance with s 82A of the 1987 Act.
The respondent is to receive credit for payments made during the period of the applicant’s entitlement to weekly compensation

Treatment

The applicant has made a claim for medical or related treatment payable under s 60 of the 1987 Act in the nature of a General Order. As I accept the applicant sustained injury to his head (in the nature of a contusion), injury to his cervical spine and right shoulder is noted disputed, and I accept the applicant’s pre-existing psychological injury deteriorated as a consequence of the injuries sustained, it follows he has an entitlement to compensation for the cost of medical or related treatment payable under s 60 of the 1987 Act for those injuries.

SUMMARY

Liability for the injury the applicant sustained to his cervical spine and right shoulder in the incident occurring on 24 May 2018 is not disputed, and I accept the applicant sustained injury to his head (in the nature of a contusion) in the course of his employment with the respondent, with the date of injury of 24 May 2018. The applicant’s employment with the respondent was a substantial contributing factor to the injury he sustained to his head (in the nature of a contusion). As a consequence of these injuries, the applicant’s pre-existing psychological injury has also deteriorated. I do not accept the applicant sustained injury to his thoracic spine, his lumbar spine, his left shoulder, his left hand and his right hand in the incident occurring on 24 May 2018.

The applicant has had no current work capacity since on or about 24 May 2018 due to the injuries he sustained that day. The applicant has an entitlement to weekly benefits payable under ss 36 and 37 of the 1987 Act. The applicant’s PIAWE is agreed at $1,530. The applicant’s PIAWE is to be adjusted in accordance with s 82A of the 1987 Act. The respondent is to receive credit for payments made during the period of the applicant’s entitlement to weekly compensation.

The applicant requires medical or related treatment for the injuries he sustained to his head (in the nature of a contusion), cervical spine and right shoulder and for the consequential deterioration of his pre-existing psychological injury. The respondent is to pay the applicant’s medical and related treatment in accordance with ss 59 and 60 of the 1987 Act.

Jacqueline Snell
MEMBER

29 March 2021