Haddara v FLH NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Haddara v FLH NSW Pty Ltd [2024] NSWPIC 302
APPLICANT:	Khader Haddara
RESPONDENT:	FLH NSW Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	6 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Consequential conditions; applicant suffered significant injury (biceps tendon tear) and claimed as a result he suffered from consequential conditions in the left and right shoulders; intervening motor vehicle accident; Held – applicant satisfied his onus that he had suffered a consequential condition in his left shoulder due to overuse; insufficient evidence that he had suffered a consequential condition in right shoulder; matter referred for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition in his left shoulder. 2. Award for the respondent for consequential condition in the applicant’s right shoulder. 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 7 December 2019. b. Body systems/parts: i. right upper extremity (elbow, wrist); ii. left upper extremity (shoulder); iii. scarring, and iv. respiratory system (sleep and arousal disorder). c. Method of assessment: whole person impairment 4. The documents to be referred to the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents dated 14 May 2024, and d. Application to Admit Late Documents dated 23 May 2024.

STATEMENT OF REASONS

BACKGROUND

Mr Haddara (the applicant) was employed as a concrete formworker with FLH NSW Pty Ltd (the respondent) when he suffered what has ended up being a significant injury, being a biceps tendon rupture in his right arm. There have been consequences of that injury, including to the wrist and a sleep and arousal disorder.
The injury occurred on 7 December 2019, whilst Mr Haddara was lifting a sheet of plywood. The tendon was surgically repaired, but following the surgery Mr Haddara felt pain and stiffness in his wrist. Unfortunately for Mr Haddara, following his work injury he was involved in a motor vehicle accident.
The applicant made a claim for lump sum compensation totalling 38% whole person impairment, made up of 25% for the sleep disorder, and 17% for the effect of the physical injuries. The respondent has accepted liability for most of the injuries claimed by Mr Haddara, including the index injury to his biceps, but has disputed that Mr Haddara suffered an injury to either shoulder either arising out of employment or as a consequence of the accepted injury he suffered.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether as a result of the accepted injury to Mr Haddara’s biceps, he suffered a consequential condition in his left shoulder and right shoulder.
The parties agree that regardless of the outcome of this dispute, the accepted injuries/body parts will be referred for an assessment of whole person impairment, being the right upper extremity (elbow, wrist), scarring, and respiratory system (sleep and arousal disorder).
During the course of the hearing, the applicant discontinued the claim for medical expenses. The applicant has also claimed weekly compensation benefits. If the parties are still in dispute as to that issue following on from this decision and the result of the medical assessment, the matter should be relisted for preliminary conference to determine that issue, consistent with Jaffarie v Quality Castings Pty Ltd.[1]
[1] [2014] NSWWCCPD 79.

PROCEDURE BEFORE THE PERSONAL INJURY 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 Personal Injury Commission (Commission) and considered in making this determination:
(a)   Application to Resolve a Dispute (the Application) and attached documents;
(b)   Reply and attached documents;
(c)   Application to Admit Late Documents dated 14 May 2024, and
(d)   Application to Admit Late Documents dated 23 May 2024.
It is noted that the latter of those late documents attaches the clinical notes of Dr Pham. Those records were made available pursuant to a direction for production issued by the Commission. During the course of discussions prior to the hearing it became apparent that the respondent had not filed any evidence arising out of that direction for production, but wished to rely on the records for the purpose of the hearing. The applicant was, to his credit, able to consider and address the material without it properly being lodged or served (although I do note that the applicant would have had access to the material through the Commission’s portal).
I did not have access to the material and was unaware of its existence. I directed the respondent to provide access to a copy during the hearing so that I may be referred to relevant clinical notes. That material approached almost 2,000 pages. I then directed the respondent to properly file only the relevant material under cover of an Application to Admit Late Documents so that a record of the material would be contained on the Commission’s file that I could later access. The references made during submissions to pages of clinical notes may therefore be different to the material filed.
The parties referred to the relevant material during submissions and I will touch on that material, in brief, below. Some of the material attached is not relevant to the issues in dispute, going to Mr Haddara’s capacity or accepted injuries. I have read, but do not intend to refer to, that material.
Reports of Dr Porteous
Dr Porteous provides a report dated 3 August 2022 on behalf of the applicant. He takes a consistent history of injury suffered to the biceps tendon, resulting in surgery. He records the following in relation to the left shoulder:
“He said with favouring his right elbow and wrist about a year ago he developed some left shoulder pain which progressively got worse to the point that recently he attended his General Practitioner and had an MRI scan. He said he is on the waiting list to see a Specialist about it.”
In relation to the applicant’s current condition, Dr Porteous records: “He reports left shoulder pain when his shoulder is up or when lying on it at night rated 5/10.” Dr Porteous examined the left and right shoulders, noting that both did not have a full range of motion. The right was assessed at 5% upper extremity impairment, and the left 4%. Under the heading “discussion”, Dr Porteous records:
“Although not mentioned in detail in the reports on file he reports developing onset of now persistent left shoulder pain about a year ago with favouring the right upper limb and overusing the left. He has recently had an MRI scan and said he is on the waiting list for review.”
Dr Porteous suggests that it is reasonably likely that Mr Haddara will need injections in the left shoulder, and potentially a repair and debridement. He opines, in relation to causation, that due to favouring the right arm, that the applicant has aggravated, accelerated or deteriorated underlying degenerative change in his left shoulder. It is noted that there is little to no discussion of the right shoulder or an explanation of causation. Dr Porteous, in a report dated 3 August 2022, stated that there were “nil” injures that were not caused by the accident.
Reports of Dr Yuk Kai Lee
Dr Lee provides a report dated 23 May 2022. Dr Lee was asked whether there was any overuse of any other arm or leg and whether such is causally related to the accident, to which he replied: “Mr Haddara also noticed some soreness in the left wrist due to overuse. It does not however attracts a whole person impairment percentage.” In recording his assessment of impairment, Dr Lee deducted part of the restriction in the left shoulder from the right shoulder.
In a supplementary (separate) report of the same date, Dr Lee states, again being asked about whether there were any injuries not caused the accident: “There could be some stiffness in the left upper extremity which could be due to pre-existing stiffness. This was used as the baseline to calculate the impairment.”
Reports of Dr Dao
Dr Dao is the applicant’s treating orthopaedic surgeon, referred in relation to left shoulder pain. He provides a report dated 6 September 2022. He notes that there was no injury to the left shoulder, but that he previously had a work injury to the right arm. He takes the following onset of symptoms in the left shoulder:
“Subsequent to this he has felt he has had to rely on his left arm for function and over the past six months he has been experiencing increasing pain in the left shoulder accordingly. There is no associated pins and needles or numbness.”
Dr Dao provides the following opinion in relation to what is causing Mr Haddara’s shoulder symptoms:
“I believe that Khader has two main issues with his left shoulder. The first is he has impingement signs with a small partial thickness tear of the supraspinatus tendon. The main source of the pain I believe is from his left AC joint which is quite reactive on the MRI scan.”
On 6 December 2022, Dr Dao provides a report following an injection to the left AC joint (which I note the respondent paid for), which had no effect. Dr Dao postulates that potentially the pain could be related to the neck and recommends referral for an MRI of the neck. Mr Haddara undertook an MRI on 19 December 2022, which records “essentially normal unenhanced MRI examination of the cervical spine”.
Reports of Dr Nair
The respondent relies on the reports of Dr Nair.
In a report dated 11 August 2022 he states that “there has been no diagnosis of a right shoulder injury”. Dr Nair comments on the report of Dr Lee:
“It is with deference that I disagree with Dr Lee’s findings. It is my opinion it is unreasonable to apportion permanent impairment to a right shoulder in a thirty-four year-old gentleman when there has been no right shoulder condition established. Furthermore, Mr Haddara had full and symmetrical shoulder range of motion.”
Dr Nair provides an updated report dated 6 October 2023. He records equal shoulder range of motion between left and right. He notes that since the last assessment, Mr Haddara records pain in multiple regions including both knees and both shoulders. He states, in relation to the shoulders:
“As I articulated in my earlier report, there have been injuries to the right elbow and right wrist. I do not accept injuries to his shoulders. It is illogical to deem that an individual would develop consequential shoulder injuries and resultant whole person impairment without scrutinising the pathoanatomy at hand with medical imaging in 2023. It is also important to note that his treating doctors have not opined that there are injuries in either shoulders.”
He goes on to state:
“I do not accept that Mr Haddara has had bilateral shoulder injuries. There has been no medical imaging performed on his shoulder. It is not reasonable to pontificate that an individual has developed permanent impairment in shoulders in the absence of a direct injury or medical imaging.”

Clinical notes

Both parties made submissions with reference to the clinical notes of Dr Pham. I have considered that material and will discuss the relevant notes below.

SUBMISSIONS

Both parties made submissions during the hearing which were recorded. I will provide a brief summary of those submissions here and discuss them in more detail below.
Applicant’s submissions
The applicant submits that following his work injury, he was left with significant restriction affecting the utility of his dominant right arm. As a result, he increased reliance on his left arm and over a period of time developed pain and symptoms, and had referral for treatment. The applicant referred to the history of treatment undertaken, first with Dr Chang and then with Dr Nabarro, and the onset of pain in the left shoulder in mid-late 2021.
The applicant commented on each of the expert medical opinions provided in the case:
(a)   Dr Lee does not turn his mind to his examination of the left shoulder, and is effectively silent in relation to it;
(b)   Dr Porteous takes a more comprehensive report that Dr Lee. It was acknowledged that he doesn’t necessarily turn his mind to causation in the right shoulder, but does provide an assessment of whole person impairment. In comparison, he does express his opinion clearly in relation to the left shoulder, and
(c)   Dr Nair’s first report does not deal with the left shoulder at all, but determines that the right shoulder is not work related. Dr Nair takes a positive view of the work as a history giver and his motivation to get back to work. In relation to Dr Nair’s comments about the absence of medical imaging, this is incorrect. He doesn’t deal with complaints of pain to the left shoulder, and is in summary a bare ipse dixit.
The applicant then referred to the medical evidence of treatment in the left shoulder, including an MRI taken on 1 July 2022, and referral to Dr Dao who recommended cortisone injections which were undertaken. The clinical notes of Dr Pham refer to left upper limb pain.
The applicant submits that in relation to the left shoulder there is a very clear identification of a problem, a relevant clinical timeline, and there is sufficient clinical material to support the opinion expressed by Dr Porteous. The applicant acknowledged that there was little material to support the right shoulder other than the opinion of Dr Porteous.
Respondent’s submissions
The respondent submits in relation to the right shoulder that there is a lack of real evidence as to causation. Dr Porteous assesses the right shoulder but provides no explanation as to injury. There is a complete lack of evidence, even on the applicant’s own statement, and I should find that there is no consequential condition or injury suffered to the right shoulder.
In relation to the left shoulder, the respondent submits that there is only a brief explanation from the applicant in his statement. At the highest, Dr Porteous records that the applicant developed some left shoulder pain that got worse, and there is no explanation of how.
It was noted that Dr Lee did not assess or attribute any impairment to the left shoulder but used it as a baseline suggesting that there was no injury. He also gives no explanation as to why the right shoulder was included.
The respondent then turned to the clinical notes of Dr Pham, and in particular with reference to the motor vehicle accident suffered by the applicant which is unrelated to this claim. The respondent compared the notes of Dr Pham which attribute symptoms between the motor vehicle accident and the workers compensation event. It was submitted that this was particularly relevant from 18 August 2020 where ongoing complaints of neck and shoulder pain were attributable to the motor vehicle accident.
The respondent submits that the applicant provides an incomplete history of the motor vehicle accident, which the doctors have relied upon. As such, I could not be satisfied that any of the doctors have a correct history and that any consequential condition is not as a result of the work injury, but rather was as a result of the motor vehicle accident.
Applicant in response
The applicant submits that in relation to the motor vehicle accident, the applicant was moved off the workers compensation system for a period into the motor vehicle system, and then back onto workers compensation after the motor vehicle accident had resolved.
The applicant submits that if I were to make anything of the motor vehicle accident, I would have been assisted by some medical evidence in that regard from an expert, which has not been forthcoming from the respondent.

Submissions about novus

Following on from the above, I inquired of the parties, the respondent first and then the applicant, as to whether the respondent’s case was that there was a novus actus that had severed the chain of causation, being the motor vehicle accident. The respondent said that there was, and that it was up to the applicant to establish that the issues that he has now was solely attributable to the work accident and not the motor vehicle accident.
The respondent accepted that the medical opinions did not go far enough to say that the issues in the applicant’s shoulder were caused by the motor vehicle accident, but that the respondent had the nous to prove that they were caused by the work injury.
In response the applicant submitted that they did not have to prove that the injury was solely attributable to the work accident, on the basis that injury can have multiple causes and here we are dealing with the work injury was a material contributing factor to the consequential condition suffered.
The applicant submits that they have presented their case and satisfied their onus, but if the respondent wants to run a different case they need evidence in support.

FINDINGS AND REASONS

This dispute concerns whether the applicant suffered a consequential condition in two body parts (left and right shoulders) as a result of an accepted biceps injury. I will deal with each body part in turn.

Left shoulder

There is no doubt that on 7 December 2019, Mr Haddara suffered a significant injury. This resulted in almost immediate surgery to repair the ruptured biceps tendon suffered whilst lifting some formwork. Further surgery was performed as a result of the ongoing issues in Mr Haddara’s right arm following the injury, including on 12 February 2021. For periods of time Mr Haddara was unable to use his right arm at all as it was in a sling. He also underwent physiotherapy treatments for significant periods.
Mr Haddara claims that due to the significant pain in his right arm he was relying on his left arm, and in mid-late 2021 he began to experience pain in his left shoulder. The applicant relies on the medicolegal opinion of Dr Porteous, supported by the clinical evidence of Dr Dao and Dr Pham, to support their position that the applicant suffered a consequential condition in the left shoulder.
The respondent’s case is that there is a lack of evidence going to causation of the consequential condition, which, at its highest, records some development of pain but no explanation of how. The respondent, in essence, is suggesting that the applicant has not met their onus of proof, on the balance of probabilities, to show that Mr Haddara has suffered a consequential condition in the left shoulder. In the alternative (or as a subset of the above failure to meet the onus of proof), the respondent’s position is that there was an intervening event, being a motor vehicle accident in June of 2020, that caused the symptoms of pain in the shoulder.
It must be remembered that the applicant here does not have to prove that he suffered an injury. That has been established and is accepted by the respondent. The applicant has to prove on the balance of probabilities that he suffers from a consequential condition in his left shoulder. This involves an evaluation of the chain of causation.
Dr Porteous supports the connection on the basis that Mr Haddara was favouring the right upper limb and overusing the left. He acknowledges that it is “not mentioned in detail in the reports on file”. He opines that Mr Haddara has aggravated, accelerated or deteriorated underlying degenerative change.

On the other hand, Dr Nair rejects the left shoulder on the basis that it would be illogical to conclude that there had been a consequential condition without scrutinising the pathoanatomy. Dr Nair also suggests that there has been no medical imaging performed on the shoulder.
This is where I have difficulty accepting the opinion of Dr Nair over that of Dr Porteous. This is factually incorrect. Mr Haddara was referred to Dr Dao, an orthopaedic surgeon, in relation to left shoulder pain. Dr Dao provided a report dated 6 September 2022. He acknowledges that there was no injury to the left shoulder but refers to the history of injury to the right elbow and wrist, and Mr Haddara’s reliance on his left arm for function. He recommends treatment, and refers to an MRI taken of the left sided AC joint. The treatment was provided with no change to symptoms.
Contrary to Dr Nair’s conclusion, there has been scrutiny of the pathoanatomy of the left shoulder, by Dr Dao, and there has been medical imaging performed of that shoulder. The scrutiny included an opinion as to the cause of shoulder symptoms: “impingement signs with a small partial thickness tear of the supraspinatus tendon”, and a “left AC joint which is quite reactive on the MRI scan”. This essentially means I can give little to no weight to the opinion of Dr Nair, as he has based his opinion on an incorrect factual assumption (meaning it was not made in a “fair climate” per Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505). The applicant submitted that it was a bare ipse dixit. I do not agree that that is quite the case – moreso that Dr Nair was mistaken as to what steps had been undertaken in relation to the left shoulder.
I acknowledge that the respondent’s case is more a contention that the applicant has not satisfied his onus in relation to the left shoulder rather than that I should prefer the opinion of Dr Nair over that of Dr Porteous. I am satisfied that the applicant has met his onus, on the balance of probabilities. The medicolegal opinion provided by Dr Porteous is consistent with the statement evidence of the applicant, and supported by his attendance on Dr Dao. As the applicant submits, Dr Lee doesn’t take things much further, but nor does his opinion detract from the other material.
The other aspect of the respondent’s case concerned the motor vehicle accident that occurred in June 2020 (most likely on 23 or 24 June 2020, based on the clinical note of Dr Pham). The respondent made submissions with reference to those notes, which for a period separated out the symptoms Mr Haddara was experiencing due to his work injury (under the heading “** wc” and the motor vehicle accident (under the heading “** ctp/mva” or later “** nrma”).
The records in relation to CTP initially and then consistently refer to lumbar, sacrum and coccyx pain. There is some reference to neck pain and thoracic spine pain. On 12 August2020, there is reference to “neck pain bilat, stiffness, tightness”, and then on 18 August 2020 the reference is to “ongoing neck and shoulder pain” (although it is noted without indicating of which specific shoulder). That is the last reference in the clinical notes to pain in the neck or shoulder region arising out of the motor vehicle accident. By 24 November 2020, it is recorded that “sc pain resolved… abdle [sic] to sit normally on chair, swivelling ok”. The final record in relation to the motor vehicle accident is on 7 December 2020.
I do not give great weight to these records and I am not of the view that they are detrimental to the applicant’s case. The motor vehicle accident occurred at an unfortunate time for Mr Haddara, whilst he was still experiencing symptoms in relation to his work injury, and it is clear it had some impact on him physically. There is only minimal reference to the shoulder and neck, and it appears that the major issue arising out of the accident was in the lower part of Mr Haddara’s spine, around the coccyx and sacrum area, extending into the lumbar spine.
It is also noted that the issues arising out of the motor vehicle accident ceased by December 2020, which predates the referral to Dr Dao by some time. Dr Dao assessed Mr Haddara on 6 September 2022, and records a history of pain for the last six months, which would be early-mid 2022. That postdates the motor vehicle accident by nearly two years, and the resolution of symptoms by over a year.
There is nothing in the clinical notes of Dr Pham that has an impact on what Mr Haddara has to prove on the balance of probabilities – that he has suffered a consequential condition in his left shoulder as a result of overuse and favouring his right arm. It is trite law that an injury or condition can have multiple causes (ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28). Even if there were some contribution from the motor vehicle accident to the condition in the applicant’s left shoulder, the material contribution from the work injury has been established.
I am also of the view that the lack of history taken by the doctors of the motor vehicle accident, including and in particular Dr Porteous, is not fatal to the applicant’s claim. Any symptoms arising out of the accident were transitory at best. Dr Pham’s clinical notes show that any issues that arose out of the accident resolved around six months after the incident. It is clear that Mr Haddara was a forthright and clear historian; Dr Nair makes as much clear in his report.
The respondent’s alternative contention is that the motor vehicle accident severed the chain of causation as an intervening event, or a novus actus. As the applicant submits, the respondent has provided no medical evidence in support of this contention. The question of whether a novus actus occurred is a factual one that turns on medical opinion as to causation of injury. There is no explanation provided in any medical opinion that the motor vehicle has contributed to Mr Haddara’s shoulder symptoms, let alone contributed so greatly as to sever the chain of causation. The highest this reaches is a clinical note from Dr Pham recording some shoulder pain.
I do not accept that the chain of causation has been severed.
Accordingly, I am satisfied that the applicant suffered a consequential condition in his left shoulder. That body part will be referred for an assessment of permanent impairment.

Right shoulder

The right shoulder is separate and distinct from the left shoulder, and the applicant acknowledged as much in his submissions.
The only medical opinion provided in support of a connection between the right shoulder impairment and the index injury is Dr Porteous. His report provides an assessment of permanent impairment in the following manner:
“In the right shoulder there was not full range of motion and there was a 140° flexion (3%), there was 50° extension (0%), there was 140° abduction (2%), there was 50° adduction (0%), there was 80° of internal rotation (0%) and 60° of external rotation (0%) resulting in a 5% Upper Extremity Impairment.”
When asked a specific question about diagnosis and for an opinion as to causation, “in particular whether the injuries listed and flow on conditions have resulted from the accident”, Dr Porteous makes no reference to the right shoulder. He discusses the biceps tendon repair, the neuroma in the right elbow, and the right wrist pain. He refers to favouring the right arm causing problems with the left shoulder.
In a supplementary report, Dr Porteous states that there were “nil” injuries that he was able to elicit or examine that were not caused by the accident.
Dr Lee assessed the right shoulder, but also provides no explanation of its connection to the index injury. Dr Nair disagrees outright with Dr Lee’s opinion on the basis that there had been no right shoulder condition established.
The applicant took me to no other opinions, clinical notes, or treatment records that support a connection between the restriction in the right shoulder on which the claim is based and the index injury to the biceps suffered by Mr Haddara. At its highest, it might be possible to infer that in opining that there were “nil” injuries assessed not caused or connected to the accident, Dr Porteous was supporting a connection between the right shoulder impairment and the injury to the biceps.
I am not satisfied that this is the case. There is no explanation of how that occurred. I accept that there does not need to necessarily be identification of pathology (Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169]), but there must be some medical explanation of causation. Here, Dr Porteous is silent and the absence of that explanation is fatal to the applicant’s case. The applicant has the onus to prove that he suffered a consequential condition in his right shoulder. He has not met that onus, on the balance of probabilities. Accordingly, I will make an award for the respondent in that regard and the right shoulder will not be referred for assessment.

SUMMARY

The applicant suffered a consequential condition in his left shoulder, and that will be referred for assessment along with the other body parts as agreed between the parties.
The applicant has not suffered a consequential condition in his right shoulder, and accordingly an award will be made for the respondent.

[2024] NSWPIC 302

6 June 2024