Hassoun v All Systems Furniture Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hassoun v All Systems Furniture Pty Ltd [2023] NSWPIC 588
APPLICANT:	Ahmad Hassoun
RESPONDENT:	All Systems Furniture Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	6 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment and cost of cervical spine surgery; lumbar injury accepted; dispute is as to cervical injury and whether any such injury brought about the need for fusion surgery carried out in 2020; Held – the applicant suffered a cervical spine injury in the work-related injury at issue; the fact he did not have that injury investigated until approximately 3 or 4 months after the injury against a background where his treatment was preoccupied with his lumbar injury is not fatal to his claim; on balance, weighing up the totality of the evidence, the Commission is satisfied a cervical spine injury was suffered in the incident at issue; the surgery carried out in 2020 was reasonably necessary as a result of the 2011 workplace injury, as the injury made a material contribution to the need for it; there is no suggestion the surgery was not reasonably necessary; the dispute was as to the cause of the need for it; accordingly, the claim for section 66 compensation is remitted to the President for referral to a Medical Assessor, along with the accepted lumbar injury; the respondent is to pay the applicant’s section 60 expenses, including but not limited to the costs of and incidental to the 2020 neck surgery.
DETERMINATIONS MADE:	Findings and reasons are as follows: 1. The claim in respect of primary psychological injury is discontinued. 2. The applicant suffered an injury to his lumbar spine and cervical spine in the course of his employment with the respondent on 22 November 2011. 3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 22 November 2011 Body Systems referred: lumbar spine and cervical spine Method of assessment: whole person impairment 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. 5. The C5/6 anterior cervical discectomy and fusion carried out by A/Prof Sheridan on 29 May 2020 was reasonably necessary as a result of the applicant’s cervical spine injury. 4. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses, including but not limited to the costs of an incidental to the surgery carried out by A/Prof Sheridan.

STATEMENT OF REASONS

BACKGROUND

On 22 November 2011, Ahmad Hassoun (the applicant) suffered an injury in the course of his employment as a furniture deliverer with the respondent, All Systems Furniture Pty Ltd. On that date, the applicant had delivered some chairs to a school hall and slipped and fell on a set of stairs. He states that as a result of this incident, he suffered injury to his lumbar spine and cervical spine.
The applicant had suffered an unrelated injury to his lumbar spine in or about the late 1990s. Additionally, he had previously made complaints at that time in relation to his cervical spine. The history of the matter is further complicated by the applicant having suffered a subsequent motor vehicle accident on 28 January 2016 when his car was rear-ended by another vehicle.
The respondent accepts liability for the injury to the applicant’s lumbar spine and agrees that body system will be the subject of a referral to a Medical Assessor to determine the degree of the applicant’s permanent impairment. Liability in respect of the alleged cervical spine injury is, however, disputed. The respondent also disputes whether the C5/6 anterior discectomy and fusion carried out by A/Prof Sheridan on or about 30 May 2020 was reasonably necessary as a result of any cervical spine injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to his cervical spine in the incident on
22 November 2011, and
(b) if the answer to (a) above is the affirmative, whether the requirement for the applicant’s cervical discectomy and fusion brought about as a result of the injury suffered by him in the course of his employment.

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.
The parties attended a hearing before me on 3 October 2023. The applicant was represented by Ms Goodman of counsel instructed by Ms Hunt. The respondent was represented by Mr Stockley of counsel instructed by Mr Mitas.
At the hearing, the applicant withdrew and discontinued his claim with respect to a primary psychological injury.

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
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing. Mr Stockley made an application to cross-examine the applicant on the alleged delay in reporting cervical spine symptoms after the injury at issue, which application was objected to by Ms Goodman. After hearing from both counsel, I declined to grant leave to cross-examine the applicant.

FINDINGS AND REASONS

Whether the applicant suffered a cervical spine injury

The applicant must establish on the balance of probabilities that his cervical spine condition is work-related. Such question is a matter of causation, and in the workers’ compensation context, the appropriate test was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSW LR452 (Kooragang) where his Honour said:
“The result of the cases is that each case where causation is an 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 approximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed to work at a subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense 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 compensation.”
“Injury” is relevantly defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) as a personal injury arising out of or in the course of employment. There is a useful review of the authorities concerning the question of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12.
That case makes clear that what is required to constitute an injury is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning by way of atrial fibrillation, without pathological change, did not constitute an injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent De Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSW WCCPD47 added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
In this matter, the respondent emphasised the contemporaneous records indicated no complaint by the applicant in relation to his neck for approximately 3-4 months after the injury. For his part, the applicant states that his neck was sore from the time of the injurious event, as was his lower back.
In Baga v Southern Metropolitan Cemeteries Trust [2015] NSW WCCPD56, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered an injury. As the Deputy President noted, there is no requirement for corroboration in the civil case (Chaenaa v Zarour [2011] NSWCA199 at [86]). Rather, an examination of the totality of the evidence must be undertaken. That is not to say the absence of complaint is not a factor to be taken into account, however, of itself it is not determinative of whether the applicant suffered an alleged injury.
Mr Stockley submitted an acceptance of a cervical spine injury in the incident at issue is reliant upon the Commission accepting the applicant’s version of events in the face of an absence of complaint to treating practitioners. He submitted there was a variance in the history of neck symptoms given between various doctors. Whilst this may be the case, it is not in my view determinative of the applicant seeking to mislead as to the onset of any cervical spine symptoms.
In my view, the applicant’s contention that he suffered a neck injury is supported by his lengthy medical history. There is no issue the applicant had previously complained of cervical spine symptoms in or about the late 1990s or early 2000s. Helpfully in the context of this matter, the applicant’s complaints of cervical spine symptoms in late 1998 led to plain X-rays and a CT scan being taken. They demonstrated no evidence of a disc protrusion, however, there was some minor narrowing of the right C5/6 intervertebral foramen on a CT scan performed on 7 December 1998.
Following his workplace injury in 2011, the applicant attended on a number of occasions with his general practitioner, Dr Hanna. His first attendance on Dr Hanna after the accident was two days later, on 24 November 2011 where the applicant complained of lower back injury. At a further attendance on 28 November 2011, the applicant stated that his back pain was getting worse. The applicant again attended on 30 November 2011 and on
6 December 2011, Dr Hanna requested an MRI of the applicant’s lumbar spine. Through none of these attendances did the applicant complain of any neck symptoms.
The applicant then attended Dr Hanna on 13 and 16 December 2011, for matters apparently unrelated to either his lower back or neck. There were further attendances throughout January and February 2012 relating to the prescription of pain killing medication and also with unrelated medical issues.
On 13 March 2012, Dr Hanna requested an X-ray of the applicant’s cervical spine. I have no difficulty accepting Ms Goodman’s submission that this referral would only have taken place in the context of the applicant making complaints about cervical spine symptoms. On
16 March 2012, Dr Hanna also referred the applicant for a CT scan of his cervical spine.
The applicant had a CT scan of his neck on 26 April 2012, which demonstrated minor bulging at C4/5 and C5/6. This pathology stands in contrast with that demonstrated in the scans taken of the applicant’s neck in December 1998. The applicant’s neck symptoms are plainly genuine and progressing, culminating on 23 October 2015 in a report from Dr Kam, treating neurosurgeon to the general practitioner in which Dr Kam said:
“With regards to his cervical spine, his symptoms are now at a point where he wishes to consider proceeding with surgery. This will entail an anterior cervical discectomy infusion of the C4/5 and C5/6 level to address his neck pain, shoulder pain and upper extremity symptoms. He is aware of the risk of nerve root injury, spinal cord injury, CSF leak, infection, implant failure, fusion failure, dysphagia and dysphonia. He has been placed on the waiting list to undergo his cervical spine surgery at Westmead Public Hospital.”
That report by Dr Kam is against the background of the doctor having undertaken surgery to the applicant’s lumbar spine on 9 July 2012. In the lead up to that operation, Dr Kam recorded in a report to Dr Hanna on 30 May 2012, “in the meantime, Mr Hassoun describes symptoms involving his neck, shoulder and upper extremity. His headaches are constantly there. The CT scan of his cervical spine did not show any obvious findings. I have asked him to undergo an MRI scan for completeness.”
Dr Kam requested an MRI of the applicant’s cervical spine to complete the available investigations to determine if there was any pathology present. As noted in his report of
5 August 2014, that scan demonstrated disc bulges at C4/5 and C5/6 which the doctor said were “potentially contributing to his shoulder, neck and upper extremity symptoms”.
It is also apparent that Dr Kam was of the view the applicant’s workplace injury was the cause of his cervical spine symptoms. In a report dated 6 February 2015, Dr Kam said:
“The combination of neck pain and his lower extremity symptoms have continued to impact on Mr Hassoun’s ability to function at home and to also try to get employment. Without the assistance of surgery, I see no light at the end of the tunnel for Mr Hassoun. You may be aware that the insurance company has denied liability for any further treatment. I have suggested for Mr Hassoun to proceed with surgery in the public system under the provisions of Medicare. Before embarking on the surgery in the public hospital, I have asked Mr Hassoun to discuss that option with his solicitors to make sure that it does not impact on his insurance claim.”
It is therefore apparent the applicant’s treating surgeon was of the view his neck symptoms related to the work injury, and that they required surgery. This finding is relevant because the applicant had a motor vehicle accident on 28 January 2016 in which his car was rear-ended. The applicant brought a claim in relation to that accident, which was subject to a medical assessment by Medical Assessor Preston on 1 November 2022. As part of that assessment,
Medical Assessor Preston was requested to provide an assessment of the applicant’s C5/6 anterior cervical discectomy and fusion, foraminal stenosis at C5/6 on the right with C6 nerve root compression. In carrying out that assessment, Medical Assessor Preston noted:
“With respect to the cervical spine, he had a cervical anterior discectomy and fusion at C5/6. This surgery was done on 29 May 2020. It is noted that Dr Kam recommended surgery for neck and right arm pain on 23 October 2015 and Mr Hassoun was booked for surgery the following year but did not proceed. There is no evidence from the medical record to support an aggravation of cervical spine symptoms related to the motor vehicle accident in 2016. This was a minor rear end collision. Symptoms in the cervical spine and right arm are of comparable severity pre- and post-accident.”
In my view, that opinion is worthy of significant weight. Medical Assessor Preston is an independent assessor retained by the Commission to carrying out an assessment of the applicant’s cervical spine. She correctly notes that Dr Kam was recommending surgery for the applicant’s cervical spine before the 2016 motor vehicle accident. As noted, treating surgeon Dr Kam had attributed the need for that surgery to the workplace injury at issue.
In my view, there is further support to the applicant having suffered an injury to his cervical spine in the incident at issue from Independent Medical Examiner (IME) Dr Millons.
Dr Millons had a correct history of the applicant previously complaining of cervical spine symptoms in the late 1990s. He noted the contrasting findings on radiological investigation between 1998 and those carried out on 26 April 2012, the latter of which he stated recorded “mild loss of disc height at C4/5 and C5/6 with minimal broad base disc bulging”. Dr Millons additionally noted Dr Assaad, treating surgeon also recorded a history of the applicant developing neck pain after the workplace injury at issue.
The applicant was also seen by occupational physician, Dr Davis, at the request of his former solicitors. In a report dated 21 May 2014, Dr Davis noted the applicant was continuing to “suffer with severe neck pain which radiates over the occiput to the top of the head, and occasional numb sensations in his upper limbs”. Of note, Dr Davis had for comparison the cervical spine radiology from the late 1990s and that which was taken after the incident at issue. He described the latter studies as demonstrating stenosis with neural impingement and the MRI of July 2012 as showing left-sided C4/5 arthrosis. Dr Davis diagnosed impingement in the cervical spine from the applicant’s work-related injury. Dr Davis said:
“Mr Hassoun has a history of suffering a lumbar disc injury in 1995 for which he eventually required decompression procedures. After a period of rehabilitation however, his symptoms did resolve and he was able to return to quite strenuous activities such as car detailing and smash repairs which require working in awkward spaces as well as repetitive or sustained flexion with combined rotation. There are also aspects of the work which dictate heavy lifting in the use of force.
As such, I believe he made quite an excellent recovery from his first procedure, although he suffered further disc injuries and nerve root impingement in the accident of 22 November 2011 in both the cervical and lumbar spinal regions for which he subsequently underwent further operative intervention, although he has been left with significant perineural scarring, disc protrusions and ongoing pain and impairment with some symptoms of radiculopathy and a positive stretch test.
These injuries are consistent with his stated mechanism of trauma and work is deemed to be a substantial contributing factor with regards to the incident of 22 November 2011.” (my emphasis)
On 6 April 2016, Dr Peter Bentivoglio, neurosurgeon, provided a report for the respondent’s insurer. When asked regarding the cause of the applicant’s neck symptoms, and specifically whether the applicant’s stated injury was reasonably attributable to the incident at issue,
Dr Bentivoglio stated:
“It could be the cause of a soft tissue musculoligamentous injury to his neck. I have pointed out the original MRI scan done approximately eight months after his injury did not show any problems at the C5/6 disc. A new MRI scan some two years after that showed that he has a disc problem at C5/6.”
Dr Bentivoglio indicated the applicant’s disc injury at C5/6 was not attributable to the incident at issue.
Dr Bentivoglio’s interpretation of the radiological scans broadly support a finding of neck injury in some form. Dr Bentivoglio’s view that there was no disc pathology at C5/6 demonstrated on the 2012 MRI is not, however, born out by the findings of the CT scan of the cervical spine undertaken in April 2012 which demonstrated a loss of disc height at C4/5 and C5/6. Indeed, the respondent’s other IME Dr Machart describes the findings of the cervical spine CT taken on 26 April 2012 as “stenosis 4/5, and 5/6. Probable neural impingement. Foraminal narrowing. Disc bulges”. Dr Machart then records the MRI of the cervical spine of 21 July 2014 to which Dr Bentivoglio opined and describes the findings as “C5/6 spondylosis, C4/5-disc bulge. Bulge at L4/5.”

On balance, weighing up all of the medical evidence in this matter, I am persuaded on the balance of probabilities that the applicant did suffer a cervical spine injury in the incident at issue. Notwithstanding the early focus of his treatment was on his lumbar spine, I accept the applicant’s statement that he suffered neck pain following the incident at issue, and I note that following the incident he did have both plain X-ray and CT scans undertaken of his neck by April 2012. There is no suggestion of any intervening incident between the workplace injury and his symptoms requiring those investigations to take place.
Although the respondent suggested either there was a supervening event between the injury at issue and April 2012, or that the motor vehicle accident in 2016 had caused the applicant’s neck problems, in my view the fact his treating surgeon Dr Kam was suggesting the surgery was necessary before the motor vehicle accident and plainly considered the requirement for it was brought about by the injury at issue is persuasive.
As a treating surgeon, Dr Kam’s opinion is entitled to be given significant weight unless it can be shown it contained an error as to either the history taken or the methodology involved in carrying out his examination. None has been demonstrated.
Dr Kam had the benefit of seeing and examining the applicant on a number of occasions over many years. In my view, his opinion is broadly consistent with that of Dr Millons and also the contemporaneous records. That is, they demonstrate the applicant complaining of cervical spine symptoms in the aftermath of the injury at issue, consistent with him having suffered an injury as that term is described in s 4 of the 1987 Act.
Accordingly, I prefer the views of Dr Millons supported as they are by Dr Kam and the applicant’s general practitioner to those of Dr Machart and Dr Bentivoglio. I therefore find that the applicant suffered a cervical spine injury in the course of his employment with the respondent in the event at issue and accordingly the cervical spine injury will be remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment arising from the injury.

Whether the requirement for neck surgery was as a result of the injury

The applicant must demonstrate that the requirement for the surgery carried out to his cervical spine was as a result of the injury which I have found he suffered in the course of his employment.
In those circumstances, the question that is relevant is whether the injury brought to light a need for treatment which was going to be necessary anyway, or whether the injury not only brought to light a need for treatment which was going to be needed anyway, but that treatment was required then and the option to wait and/or try other treatments had been removed.
In Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD18, the worker, a taxi driver, was assaulted in the course of his employment. The worker had pre-existing conditions to the body parts affected by the assault. The insurer denied liability for treatment relating to those body parts, in part due to the applicant’s pre-existing condition.
Roche DP confirmed the arbitrator’s decision in finding that treatment was reasonably necessary as a result of the injury. After referring to the trite rule set out ACQ v Cook that a condition can have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the Periimplantitis was ‘cause’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has risen ‘as a result of’ the injury. That is because, as Dr Roessler explained, the Periimplantitis is ‘only there because Mr Schokman has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants Mr Schokman would not have the Periimplantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may also have contributed to that need.” (At [54].
The cases make it clear that there may be multiple causes of a requirement for surgery. In this matter, there is no doubt the applicant had previously suffered from cervical spine symptoms, albeit he had been able to carry out heavy and repetitive work for many years after those symptoms were investigated. Likewise, there is no issue the applicant had a motor vehicle accident after the work-related injury.
Nevertheless, the applicant’s treating surgeon Dr Kam was advocating the need for neck surgery before the supervening motor vehicle accident, and as indicated, I find his opinion carries substantial weight. As a matter of common sense, the fact a treating surgeon was advocating for a course of treatment before any supervening event but after the work-related injury is suggestive in my view of the cervical spine injury which I found the applicant suffered in the course of his employment making a material contribution to the requirement for the surgery carried out by A/Prof Sheridan.
It is important to keep in mind it is symptomology, not pathology, which usually necessitates treatment of any kind. That is, a person may have pre-existing pathology in a relevant body system which is asymptomatic or in relation to which their symptoms are so mild as to not require treatment; however, work-related symptomology may bring about the requirement for treatment to that non-work-related pathology. In such a case, it can therefore be said the treatment came about “as a result of” the work-related incident, because the incident made a material contribution to the need for the treatment.
There was no suggestion the treatment carried out by A/Prof Sheridan was anything other than medically necessary. Indeed, surgery of the nature ultimately carried out had been recommended by Dr Kam since before the 2016 MVA. The dispute in these proceedings was purely one concerning what brought about that need for surgery, rather than any suggestion the operation was not reasonably necessary.
Having made this finding, it follows the surgery falls within the definition of s 60 of the 1987 Act as treatment reasonably necessary as a result of the applicant’s neck injury.
It further follows from these findings that the respondent will be ordered to meet the costs of and incidental to that surgery.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2023] NSWPIC 588

6 November 2023