Hosgorur v Ezko Property Services (Aust) Pty Ltd
[2021] NSWPIC 428
•20 October 2021 (amended 25 October 2021)
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hosgorur v Ezko Property Services (Aust) Pty Ltd [2021] NSWPIC 428 |
| APPLICANT: | Ahmet Hosgorur |
| RESPONDENT: | Ezko Property Services (Aust) Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 20 October 2021 (amended 25 October 2021) |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation for permanent impairment; accepted injury to lumbar spine while loading rubber belts onto a utility; accepted consequential condition of the upper and lower digestive tract as a result of pain killing medication; whether worker also suffered injury to the cervical spine; whether worker also suffered bilateral shoulder injuries; Held - finding that worker suffered injury to his right shoulder in the incident; finding that worker had not discharged his onus in relation to the left shoulder; lumbar spine, cervical spine, right upper extremity (shoulder) and upper and lower digestive tract to be referred to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injuries to his lumbar spine, cervical spine and right shoulder arising out of or in the course of his employment with the respondent on 5 May 2017. 2. The applicant suffered a consequential condition of his upper and lower digestive tract as a result of taking pain-killing medication for his injuries. 3. Award for the respondent with respect to the claim for injury to the left shoulder. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of whole person impairment of the following body parts as a result of injury sustained on 5 May 2017: (a) lumbar spine; (b) cervical spine; (c) upper right extremity (shoulder), and (d) upper and lower digestive tract. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents lodged by the applicant and attached documents, and (d) Reports of Dr Robert Breit dated 25 September 2017 and 19 October 2017. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Mr Ahmet Hosgorur (the applicant) was employed by Ezko Property Services (Aust) Pty Ltd (the respondent) as a full-time cleaning supervisor from 3 September 2015. On 5 May 2017, he was lifting rubber belts from escalators onto the back of a vehicle. The rubber belts ranged in length from about 3 metres to 20 metres and weighed between 10 and 100 kilograms each.
Mr Hosgorur claims he suffered injuries to his lumbar spine, cervical spine, and left and right shoulders as a result of the work he was undertaking on 5 May 2017. He claims he suffered a consequential condition of his upper and lower digestive tract as a result of the pain medication he took for his injuries.
In these proceedings, Mr Hosgorur claims compensation pursuant to section 66 of the Workers Compensation Act1987 (the 1987 Act) for permanent impairment of his lumbar spine, cervical spine, left and right upper extremities (shoulders), and upper and lower digestive tract.
The respondent accepts liability for injury to Mr Hosgorur’s lumbar spine and for the consequential condition of his upper and lower digestive tract.
By a dispute notice issued on 25 June 2021, the respondent disputes liability to compensate Mr Hosgorur for injuries to his cervical spine, and left and right shoulders.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 25 June 2021, Mr Hosgorur claims compensation for permanent impairment of his lumbar spine, cervical spine, left and right shoulders, and upper and lower digestive tract.
ISSUES FOR DETERMINATION
Parties agree that Mr Hosgorur’s lumbar spine and upper and lower digestive tract be referred to a Medical Assessor for assessment of whole person impairment. Whether any other body parts are to be referred depends upon determination of the issues remaining in dispute being:
(a) whether Mr Hosgorur suffered injuries to his cervical spine, left shoulder and right shoulder arising out of or in the course of his employment with the respondent on 5 May 2017.
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation/arbitration hearing on 27 August 2021. Mr Hosgorur was represented by Mr Ross Stanton of counsel, instructed by Ms Medea Hanna. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Ms Emily Scott.
Parties had lengthy discussions during the conciliation stage of the hearing, and offers were conveyed, but the matter could not be resolved. There was insufficient time at the hearing for parties to complete oral submissions. Directions were therefore made for written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (AALD) lodged by the applicant and attached documents.
Reports of Dr Robert Breit dated 25 September 2017 and 19 October 2017 were admitted at the conciliation/arbitration hearing by way of “statements” of descriptions of the initial symptoms reported by Mr Hosgorur, and not as reports of medical opinion.
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witness.
THE EVIDENCE
Mr Hosgorur’s evidence
Mr Hosgorur has provided a written statement of evidence dated 12 June 2021[1]. He states that, on or about 5 May 2017, he suffered injuries to his neck, back, left shoulder, right shoulder, left hip and right hip while loading rubber belts from escalators onto a utility. The rubber belts ranged in length from about 3 to 20 metres and weighed between 10 and
100 kilograms each.[1] ARD Page 1.
Mr Hosgorur states that the task took from around 5.00am to 7.30 am. He had to carry the rubber belts about 5 metres to where the utility was parked. He had to lift them by placing them on his shoulder and throwing them onto the vehicle. Alternatively, he would roll them, lift them off the floor and place them onto his shoulders and then throw them onto the utility. As the load on the utility got higher, he had to lift the belts higher.
Varying estimates of the weight of the rubber belts appear in documents attached to a Factual Investigation Report prepared for the respondent on 4 October 2017, and in some of the medical reports. However, nothing in the end turns on these. It is not in dispute that some of the rubber belts were heavy enough to need lifting by more than one person.
Mr Hosgorur states that, after completing the task, he started to experience pain in his shoulders, neck and back. He told his fellow worker he was having pain. He went home and rested. He was due back at work that night but was in too much pain, especially in his back, and could not get out of bed. He reported his injury to his manager.
The following day, Mr Hosgorur could not get out of bed. This went on a “for a few days”. He went to his doctor as it did not seem his injuries were going to improve. His doctor sent him for scans and gave him a medical certificate. As soon as his employer received the certificate, he was told his position was terminated. Mr Hosgorur says he has been unable to return to work since.
After the scans came back, Mr Hosgorur’s doctor referred him to Dr Balsam Darwish, neurosurgeon and spinal surgeon, and sent him for physiotherapy.
Mr Hosgorur states that he continued to experience pain in his neck which travelled into his shoulders and down his arms into his hands, and pain from his back travelling down to his legs and feet. His doctors believed the main problems were in his neck and back, and continued to treat those areas. He has had cortisone injections in his neck and back which only help for a few weeks before the pain comes back.
At the time of his statement, Mr Hosgorur stated he was due to have a cortisone injection in his right shoulder in the next few weeks.
Mr Hosgorur states that, before the injury on 5 May 2017, he was in good health. He was fit and working full time with no restrictions. He may have experienced some back pain after a day’s work every now and then but it was nothing serious and it would go away after he had rested.
Mr Hosgorur states that he is “informed that in around 1991” he suffered an injury during the course of his employment when a tube fell and struck him. It was over 30 years ago and his memory is not good. He recalls the incident “vaguely” and that he experienced some back pain for a time, but he believes whatever symptoms he had resolved because, ultimately, he returned to work and had no further problems.
Mr Hosgorur states that he has “also been informed” that he suffered an injury to his back in 1997 when he fell down a flight of stairs. He does not recall this incident and, if he did suffer any back pain, it was temporary and he was able to return to his usual duties.
Mr Hosgorur says he now has constant pain in his lower back which travels down into his legs. He continues to experience constant pain in his neck which feels like “a stabbing pain”. It travels from his shoulders down into his arms and to his fingers, and he gets cramps and pins and needles in his hands. He says Dr Darwish has recommended a fusion in his neck but he has chosen not to have the surgery because of the associated risks. He has pain in his right and left shoulders and restricted use of both. He describes the effects of his injuries on activities of daily living.
Mr Hosgorur states that he takes multiple pain medication including panadeine forte, Mobic, Lyrica and panadeine osteo. The tablets cause many problems with his upper and lower digestive tract including reflux, heartburn, constipation and haemorrhoids.
Injury claim form
Mr Hosgorur completed an injury claim form on 28 June 2017.[2] He described the injury as occurring while lifting belts weighing between 20 and 70 kilograms and stacking them in the back of the utility. He stated that he felt “a sharp pain in my lower back and pain in both shoulders” which became worse over the weekend and he “know [sic] suffer from radiating pain down both arms & legs”.
General practitioners’ records: 2015
[2] ARD page 176.
Clinical records from Plus 1 Medical Centre date from 10 March 2015 to 6 April 2021.[3]
[3] ARD page 77.
The records show that Mr Hosgorur saw Dr Athour on 10 March 2015 with a history of headache and pain in both forearms, neck and lumbar back, and motor vehicle accidents in 1977 and 1979. The notes refer to the left and right shoulder, and to “no neck pain” and “no back pain”. It is not entirely clear how much of the note represented historical complaints and how much current complaints.
On 24 March 2015, Dr Athour noted a bone scan showed mild degenerative arthritis in the cervical spine, and tenderness in the neck and thoracic back[4]. On 31 March 2015, he recorded active arthritis in the cervical and thoracic spine and complaints of neck and back pain; also joint pain in the neck, back, left and right shoulders and other body parts. Records on 14 April 2015 again referred to back and neck pain.
[4] ARD page 84.
Roger Berbari, physiotherapist, reported to Dr Athour on 28 April 2015 that Mr Hosgorur attended that day complaining of chronic onset of cervical spine pain with headaches, lumbar spine pain, bilateral shoulder pain and left knee pain. Mr Berbari noted a history of two motor vehicle accidents. He outlined the treatment he had provided.
On 12 May 2015, Dr Athour recorded lumbar back and neck pain and pain in the left shoulder[5].
[5] ARD page 84.
General practitioners’ records: from 2017
The next record is dated 10 May 2017, five days after the incident at work, when Dr Thikra Kanan recorded “shoulder and neck pain … for few days”. She did not record the reason. She noted Mr Hosgorur had not had a checkup for two years and was not on any medications[6].
[6] ARD page85.
Mr Hosgorur next saw Dr Kanan on 29 June 2017 when she recorded “persiatant back pain [sic]” and stiffness and tingling in the hands, and:
“WC visit
lifted heavy rail at work 5 weeks ago
had lower back painthe pain radiating to the lower limbs”[7][7] ARD page 86
On 19 July 2017, Dr Kanan noted “WC visit” and “back pain is getting worse” and radiating to both lower limbs.[8]
[8] ARD page 89.
On 3 August 2017, Dr Sadek recorded that Mr Hosgorur complained of lumbar spine pain with bilateral sciatica, more on the left, “related to a lifting injury at work on /5/517 [sic]” [9].
[9] ARD page 91.
There are further reports of back pain on 3 August 2019, 10 August 2017, 18 August 2017, 24 August 2017, 13 September 2017 and 3 October 2017, and references to physiotherapy and referral to Dr Darwish.
The first report of neck pain after the initial record on 10 May 2017appears on 13 November 2017 when Dr Kanan requested a CT scan of Mr Hosgorur’s cervical spine.[10] She noted that a workers compensation certificate had been faxed.
[10] ARD page 99.
Records on 18 December 2017 refer to ongoing back pain and cervical spondylosis. Throughout January 2018 and February 2018, they refer to ongoing back pain. On
19 February 2018, Dr Kanan noted “WorkCover” and that Dr Darwish had recommended a steroid injection in the neck.[11][11] ARD page 104.
Further complaints of back pain are recorded in March 2018 and April 2018. On 8 May 2018, Dr Kanan noted “WorkCover” and “case conference”, and “still have back pain and neck pain”. At consultations in May, June, July and August 2018, she noted ongoing back pain. On 17 August 2018, under “work cover visit” she noted “neck pain”.
On 3 October 2018, under “case conference” Dr Kanan recorded “still have back pain” and that Mr Hosgorur was “still thinking about his cervical spine surgery” and would see
Dr Darwish the next week. There were further consultations about back pain and, on 14 January 2019, that Mr Hosgorur was waiting to see Dr Darwish to decide about surgery.[12][12] ARD page 120.
On 14 March 2019, under “work cover” visit, Dr Kanan noted that Mr Hosgorur was to have a steroid injection in his neck. On 13 May 2019, 6 August 2019, 29 November 2019 and
3 December 2019, he had back pain and neck pain. Records on intervening dates show back pain only.The first reference to either shoulder after the initial record on 10 May 2017 appears on 26 August 2020 when Dr Kanan noted bilateral osteoarthritis, worse on the right, and that Mr Hosgorur denied any previous shoulder injury.[13]
[13] ARD page 142.
On 15 September 2020, Dr Kanan noted “still have back and neck pain” and provided a WorkCover certificate.[14] On 10 October 2020, she noted under “WC visit”: “need MRI for the R shoulder as the CT was not clear” and “ongoing back pain and neck pain”.
[14] ARD page 143.
On 12 November 2020, Dr Kanan reviewed the MRI and recorded “denied previous trauma” and “? Related to heavy lifting and repeated arm movement at work”.[15]
[15] ARD page 145.
On 11 December 2020, Dr Kanan noted right shoulder pain and back pain and “need new WC certificate”.[16]
[16] ARD page 146.
On 15 December 2020 Dr Setrak recorded “neck and lower back pain”. On 11 January 2021, Dr Kanan noted “still have back and shoulder pain”.[17] On 10 February 2021, she noted “R shoulder pain”, that Mr Hosgorur saw Dr Darwish and “severe OA”. She noted he was not fit to work “specially with his shoulder problem”.[18]
[17] ARD page 147.
[18] ARD page 148.
On 9 March 2021, Dr Kanan noted under “WC visit”: “ongoing back pain” and “R shoulder pain”.[19] On 16 March 2021, Dr Sadek recorded that Mr Hosgorur was complaining of right shoulder, cervical and lumbar spine pain “related to lifting injury at work in 2017”.[20] On 23 March 2021, Dr Sadek recorded “ongoing right shoulder pain” and, on 6 April 2021, “continual right shoulder pain”.
[19] ARD page 149.
[20] ARD page 150.
Dr Kanan’s reports
In a report dated 17 February 2021[21], Dr Kanan writes that Mr Hosgorur is suffering from lumbar disc prolapse, multilevel cervical degeneration, severe foraminal stenosis, and right shoulder pain from marked osteoarthritis causing “severe pain in the neck, back and shoulder” and restriction of movements. Dr Kanan refers to painkillers and that Mr Hosgorur was having regular follow-up with Dr Darwish and Dr Dave “regarding his back and shoulders”. She said she considered Mr Hosgorur to be permanently disabled for work because of the severity of his “neck, back and shoulder condition” for which he had been having treatment for more than three years with limited outcome.
[21] ARD page 55.
On 28 July 2021, Dr Kanan reported to Mr Hosgorur’s solicitors that he presented with low back pain after lifting heavy rubber pieces at work in May 2017. She referred to his treatment and referral to Dr Darwish. She said that, following the incident, Mr Hosgorur was complaining of neck pain and bilateral shoulder pain, and scans showed multilevel cervical spondylosis and bilateral shoulder osteoarthritis. She referred to Dr Dave “who confirmed that his shoulder problem is related to the incident in 2017” and to Dr Darwish’s treatment.
Dr Kanan reported that Mr Hosgorur’s employment was the main contributing factor to his lumbar spine, cervical spine and bilateral shoulder injuries “given the physical work required by his employment in the long-standing repeated movements and heavy lifting”. She said he had mild shoulder and back pain before the incident but it was accelerated by the incident in May 2017.
Dr Darwish’s reports
Dr Darwish first saw Mr Hosgorur on 10 August 2017. He provided 11 reports throughout 2017 and 2018, and a further report on 11 March 2021.
On 10 August 2017, Dr Darwish reported to Dr Kanan that Mr Hosgorur presented with lower back pain radiating to both lower limbs which started after a work-related injury on 5 May 2017. He noted a CT scan on 5 June 2017 and said he would arrange for an MRI of the lumbosacral spine.[22]
[22] ARD page 152.
Reports on 28 September 2017 and 26 October 2017 refer to continuing back pain. On 4 January 2018, Dr Darwish reported that Mr Hosgorur also complained of neck pain and stiffness and pain in both shoulders; he had those symptoms after a work injury in May 2017. Dr Darwish noted the CT scan of the cervical spine on 18 November 2017 and said he would arrange for an MRI.[23]
[23] ARD page 155.
On 15 February 2018, Dr Darwish reported that Mr Hosgorur continued to complain of neck pain radiating to the left arm and paraesthesia in both hands, more on the left side. The MRI showed disc protrusions and potential compression of the nerves. He said he would organise a cortisone injection.[24]
[24] ARD page 156.
On 12 April 2018, Dr Darwish reported that Mr Hosgorur continued to complain of neck pain and lower back pain, and they discussed treatment options.[25] Reports on 16 August 2018,
6 September 2018, 11 October 2018, 6 December 2018 and 27 February 2020 were in similar terms.[26][25] ARD page 158.
[26] ARD page 159.
On 27 February 2020, Dr Darwish reported that Mr Hosgorur continued to complain of neck pain radiating to the left upper limb.[27]
[27] ARD page 174.
On 11 March 2021, Dr Darwish reported that Mr Hosgorur continued to complain of neck pain and pain in the right shoulder. He recommended physiotherapy for both.[28]
[28] ARD page 173.
Dr Darwish provided a further report on 26 July 2021.[29] He referred to his reviews in 2017, 2018, 2020 and 2021. He said he diagnosed mechanical lower back pain and disc protrusions in the cervical spine. Asked whether Mr Hosgorur’s employment was the main contributing factor to his lumbar spine, cervical spine and bilateral shoulder injuries,
Dr Darwish said the radiologically-demonstrated changes in his lumbosacral spine and cervical spine, which were most likely degenerative in nature, were aggravated by his employment which required heavy lifting.[29] Applicant’s AALD page 2.
Asked about any pre-existing condition, Dr Darwish reiterated his comment about the demonstrated changes in the cervical and lumbosacral spine and said the injury on 5 May 2017 was a “major aggravating factor to a pre-existing condition”.
Dr Dave’s report
Orthopaedic surgeon, Dr Jay Dave, reported to Dr Kanan on 4 February 2021[30]. He took a history that Mr Hosgorur had to pile the rubber belts higher and higher. He had “immediate pain and swelling over the neck and shoulder”. Dr Dave noted that he had been advised to undergo a fusion procedure for his neck. He noted “CT scans, MRI scans and x-rays done of the shoulder”. He noted that an injection had given some relief for a time. He said
Mr Hosgorur was “heading towards the shoulder joint replacement” but was managing quite well without surgical intervention.[30] ARD page 56.
Although he recounted the circumstances of the incident, Dr Dave did not comment on any relationship between Mr Hosgorur’s symptoms and his duties on 5 May 2017.
Dr Dryson’s reports
Dr Evan Dryson, occupational physician, provided reports dated 9 September 2020,
22 December 2020, 29 January 2021 and 7 August 2021. He noted the reports of various scans. He said Mr Hosgorur was heading towards right shoulder replacement. He did not comment on causation.On 7 August 2020,[31]Dr Dryson reported that he took a history that, as he was working,
Mr Hosgorur felt “gradual onset of pain affecting most of his body”. When the pain would not go away he saw Dr Kanan. Dr Dryson noted radiological investigations of the lumbar spine and the cervical spine on 19 November 2017. He noted Dr Darwish’s report of 10 August 2017 and that he had arranged a series of steroid injections to the lumbar spine and cervical spine. He said Mr Hosgorur was reporting symptoms in his neck radiating down both arms more marked on the right than on the left, his back, right shoulder, and left shoulder. There was limited range of movement in both shoulders. He also noted pain in both hips and knees.[31] ARD page 12
Dr Dryson diagnosed aggravation of cervical spondylosis with non-verified radiculopathy, aggravation of lumbar spondylosis, and painful restricted shoulders, the pathology of which was not yet identified. He said Mr Hosgorur required further investigations by way of MRI scans of both shoulders.
Dr Dryson assessed whole person impairment of the cervical spine as 8% and of the lumbar spine as 5%.[32] He provided provisional calculations of 8% whole person impairment of each shoulder dependent on whether pathology was in fact demonstrated on MRI scan.
[32] ARD page 24.
On 9 September 2020, Dr Dryson reported that he had seen CT scans of both shoulders dated 20 August 2020. He said CT scan “is not an appropriate investigation for evaluation of rotator cuff tendons or the subacromial burser”; an MRI was required. He noted the CT scan showed evidence of pre-existing osteoarthritis in both shoulders, more marked on the right than on the left. He said none of these findings were relevant to the incident on 5 May 2017. An MRI scan was still required to determine if there were tendon or bursal injuries, and his evaluation of whole person impairment of the shoulders remained provisional[33].
[33] ARD page 9.
In a supplementary report on 22 December 2020[34], Dr Dryson noted an MRI of the right shoulder dated 29 October 2020. He said there was “significant multiple pathology in the right shoulder”. Considering the pathology, Dr Dryson said there was evidence of pre-existing injury to the right shoulder and the episode of 5 May 2017 could only be seen as an aggravating event.
[34] ARD page 7.
Dr Dryson said although there were no scans of the left shoulder, he had noted on examination similar restricted movement in both and he assumed similar loss of efficient use of the left. In addition to aggravation of previous cervical and lumbar spondylosis, he said the events of 5 May 2017 had aggravated pre-existing rotator cuff tendon gnosis and other conditions in the right shoulder. Based on closely similar clinical findings in the left shoulder, it was likely there has been a similar aggravation there as well.
Dr Carney
Dr Paul Carney, neurosurgeon, saw Mr Hosgorur for assessment on 9 April 2019.[35] Mr Hosgorur told him he injured his back and neck at work on 5 May 2017. Mr Hosgorur said it was warm while he was working and he did not feel any pain or notice any problems. When he woke next morning, he was “very stiff with pain in his neck, arms and back”.
[35] Reply page 173.
Dr Carney said Mr Hosgorur’s current symptoms were pain in the neck and lower back, both arms and both legs. He had had episodes of back and neck pain in the past but they would settle rapidly.
Dr Carney noted the general practitioners’ records before and after the subject injury. He noted the reports from Dr Darwish and Dr Robert Breit and said he agreed with Dr Breit that Mr Hosgorur’s work was fairly sedentary until he lifted heavy and awkward items. Dr Carney described his work on that day as “unusually heavy physical activity which involved lifting from ground level and placing heavy objects at times at or above shoulder height”[36]. These placed unusual stresses on his spine and joints and he developed exacerbation of back pain and stiffness, neck pain and stiffness and vague arm and leg symptoms which appeared to have resolved
[36] Reply page 178.
In response to specific questions about the neck only, Dr Carney diagnosed ongoing neck symptoms being exacerbation of degenerative osteoarthritis change to which work had been “the substantial contributing factor”. He did not otherwise comment on other body parts.
Dr Pillimer
Dr Roger Pillimer, orthopaedic surgeon, saw Mr Hosgorur for assessment on 18 March 2021[37]. Mr Hosgorur described his work on 5 May 2017 and said while lifting the rubber belts he became aware of discomfort in his neck and right shoulder in particular, and in his low back and down into both legs. On “very specific questioning” Mr Hosgorur felt he became aware of the discomfort “before knock-off”; he has had significant ongoing problems since.
[37] Reply page 180.
Dr Pillimer reported that Mr Hosgorur’s main concern at the moment was his low back. His next concern was his cervical spine with pain radiating to both shoulder regions and down his arms to his fingers. He was having ongoing problems particularly with his right shoulder. His left shoulder was “not really a problem for him and only worries him a few times a week”. He had full range of left shoulder movement but residual restriction of the right.
Dr Pillimer concluded that Mr Hosgorur had significant mechanical problems in the cervical and lumbar regions with evidence of degenerative changes and disc protrusions but no clear evidence of radiculopathy. He accepted that Mr Hosgorur had a mechanical problem in his right shoulder region. He said the “nature and conditions” of Mr Hosgorur’s work on 5 May 2017 were of no significance to his ongoing presentation.
Dr Pillimer noted Mr Berbari’s report (below) and general practitioners’ records pre-dating the subject incident which showed Mr Hosgorur had a long history of problems in those body parts which he denied on specific questioning. Dr Pillimer said the general practitioners’ contemporaneous records indicated it was unlikely there were any symptoms in relation to the neck, arms, shoulders, back or legs that might have occurred at the time of the incident on 5 May 2017. He said it was unlikely there was even an aggravation of underlying problems, noting that Mr Hosgorur did not complain of those symptoms until much later.
Dr Pillimer also noted that Dr Dryson’s conclusions were based on the history that
Mr Hosgorur said he noticed a gradual onset of pain while he was working and that he had no problems prior to that time.In a supplementary report dated 18 May 2021, Dr Pillimer said he accepted Mr Hosgorur had genuine symptoms in a number of areas of his body, but he was unable to relate them to the injury on 5 May 2017. He said Mr Hosgorur was “not being honest about his long-standing complaints”. He noted the history of two previous motor vehicle accidents and Mr Berbari’s report in April 2015 of pain in the cervical spine, lumber spine and both shoulders. He also noted that, five days after the injury, Dr Kanan saw Mr Hosgorur for an unrelated matter. She recorded “shoulder and neck pain for a few days”, but made no mention of work. Dr Pillimer concluded that Mr Hosgorur’s employment was not a substantial contributing factor to the alleged injury to his cervical spine or either shoulder, and nor was it the main contributing factor to any aggravation.
Dr Breit’s reports
Dr Breit’s reports were admitted on the basis of the complaints they documented.
On 25 September 2017 Dr Breit took a history from Mr Hosgorur that he denied prior injuries. He only started to have some discomfort in the low back, the base of the neck and the shoulders as he was going home. He rested over the weekend, could not go to work on the Monday, and attended on his general practitioner on Tuesday. (Dr Breit noted it was actually Wednesday). At the time of the appointment, Mr Hosgorur reported “a variable amount of neck pain at the base in between the shoulder blades as well as over the shoulder cowl”. He also had low back pain.
Dr Breit’s report of 19 October 2017 goes to causation and I will not refer to it further.
WorkCover certificates
The first WorkCover certificate of capacity, provided by Dr Kanan on 29 June 2017, refers only to lumbar pain. Further certificates through to 17 July 2018 mention only the lumbar spine. Certificates from 17 August 2018 to 7 May 2021 all refer to the lumbar spine and the cervical spine. None refer to either shoulder[38].
[38] Reply page 218 ff.
SUBMISSIONS
Parties provided written submissions which are summarised as follows.
The applicant’s submissions
Mr Stanton submits that it is “perfectly plausible” that lifting heavy rolls, placing them on shoulders and carrying them to a vehicle and then having to throw them onto an increasingly high pile, could cause injury to the tissues and structures of the neck and shoulders as well as to the low back. Although the estimates of their weight vary, the evidence shows that some were heavy enough to need lifting by two persons.
Mr Hosgorur’s evidence is that, after completing the task, he started to experience pain in his shoulders, neck and back. He rested at home before seeing his doctor some days later. Mr Stanton submits that Dr Kanan’s record on 10 May 2017 of “shoulder and neck pain for few days” is broadly consistent with that evidence. Although Dr Kanan does not specify which shoulder, and does not specifically refer to lifting the rolls, nor does she mention the admitted low back injury. Mr Stanton refers to the caution needed when considering clinical notes.
Mr Stanton submits that more weight should be given to other reasonably contemporaneous, and more comprehensive, accounts, in particular the injury claim form which refers to lower back pain and pain in both shoulders, and Dr Breit’s report of 25 September 2017 which refers to pain in the lower back, base of the neck and shoulders as Mr Hosgorur was going home, and present complaints of neck pain, restricted movements in the shoulders, and low back pain.
Mr Stanton refers also to Dr Kanan’s report of 28 July 2021 that, following the incident,
Mr Hosgorur was complaining of neck pain and bilateral shoulder pain.By comparison, Mr Stanton submits, Dr Darwish’s reports do not attempt to set out a comprehensive history. His reports from 10 August 2017 to 26 October 2017 refer only to the low back which appears to have been the focus of his treatment. It was not until 4 January 2018 that he referred to the neck and both shoulders, some months after Dr Breit had recorded those symptoms.
Mr Stanton refers also to Dr Dryson’s opinion that Mr Hosgorur suffered permanent aggravation of pre-existing cervical and lumbar spondylosis and aggravation of pre-existing conditions in both shoulders. He refers also to Dr Carney’s opinion that his work had exacerbated pre-existing osteoarthritis in Mr Hosgorur’s neck.
Mr Stanton submits that I would not accept Dr Pillimer’s opinion because it is contrary to those of Dr Kanan Dr Darwish and Dr Dryson, and Dr Carney who was retained by the insurer. Further, that Dr Pillimer does not accord proper weight to the fact that Mr Hosgorur’s last medical attendance for neck and shoulder problems was on 12 May 2015, suggesting that any continuing problems were of not much practical significance, and he could perform his moderately demanding full-time duties until the injury on 5 May 2017.
Mr Stanton submits that Dr Pillimer also fails to give proper weight to Mr Hosgorur’s claim of disabling symptoms in his neck and shoulders since the subject injury.
Mr Stanton submits I would be satisfied on the balance of probabilities that Mr Hosgorur injured his neck and shoulders as a result of his work on 5 May 2017, and that those conditions should be referred to a Medical Assessor together with the low back and the consequential condition.
The respondent’s submissions
Ms Goodman submits that Mr Hosgorur’s claim that he started to experience pain in the shoulders, neck and back following the injury is not supported by Dr Kanan’s notes. They make no mention on 10 May 2017 of a work-related injury and they do not specify which shoulder. They also fail to mention a back injury.
It was not until 29 June 2017 that Dr Kanan recorded “WC visit” and referred to lifting “heavy rail” at work five weeks ago, and lower back pain. Ms Goodman submits that, on this occasion, there is no mention of the neck or either shoulder. It was not until 13 November 2017, by which time Mr Hosgorur had seen Dr Kanan at least seven times, that there is mention of injury to or pain in the neck or shoulders.
Ms Goodman submits that, based on the contemporaneous medical evidence, I ought to infer that Mr Hosgorur did not have any pain in his neck or shoulders. The record of neck and shoulder pain on 13 November 2017 does not corroborate his claim.
Ms Goodman submits that Dr Darwish did not record a complaint of pain in the neck or shoulders in 2017 and it was not until 4 January 2018 that he first noted complaints of neck pain, and stiffness and pain in both shoulders. On 15 February 2018, he noted neck pain radiating to the left arm. It was not until 17 December 2020 that he noted Mr Hosgorur complained of pain in the right shoulder. Although he saw Mr Hosgorur on numerous occasions, Dr Darwish did not express any opinion on causation.
Ms Goodman refers to the injury claim form completed on 28 June 2017 in which
Mr Hosgorur referred to lower back pain and pain in both shoulders but not in the neck. When he saw Dr Kanan the next day he did not give any history of injury to his shoulders.In the claim form, Mr Hosgorur identified Dr June Lee as his nominated treating doctor.
Ms Goodman submit that no records are available from Dr Lee, and the records are therefore incomplete.With respect to Dr Dryson, Ms Goodman submits that he did not comment on causation, in particular as to how the incident on 5 May 2017 could have aggravated Mr Hosgorur’s cervical spondylosis, despite the fact that he did not complain of symptoms in his neck until some six months after the incident. Nor did Dr Dryson comment on the absence of complaint of neck or shoulder pain when Mr Hosgorur first saw Dr Kanan.
Ms Goodman submits that Dr Dryson did not have a history of complaints of pain in
Mr Hosgorur’s neck, lower back, and both shoulders in March 2015, and treatment byMr Berbari in April 2015 and his reference to two motor vehicle accidents. Ms Goodman relies on Hancock v East Coast Timber products Pty Ltd[39] and submits that Dr Dryson’s opinion was not provided in the fair climate and should be afforded very little weight.[39] [2011] NSWCA 11.
Ms Goodman submits that Dr Dryson’s report on 22 December 2020, after seeing the MRI of Mr Hosgorur’s right shoulder, that the incident could only have aggravated the pre-existing condition in the shoulders does not explain the delay in reporting complaints and ought to be given no weight.
Ms Goodman also refers to a report of Dr Ben Teoh, psychiatrist, who saw Mr Hosgorur for assessment on 2 July 2020. Dr Teoh took a history that Mr Hosgorur had low back pain when he went home on the day of the injury; there is no history of injury to the neck or shoulders[40]. Ms Goodman refers also to an Unfair Dismissal Application on 7 June 2017 in which Mr Hosgorur refers only to injury to his back[41].
[40] ARD page 25.
[41] Reply page 131.
Ms Goodman submits that I would give very little weight, if any, to Dr Dave’s opinion. He saw Mr Hosgorur nearly four years after the injury. He took a history of immediate pain and swelling over the neck and shoulder which was inconsistent with the contemporaneous records. He does not identify which shoulder he was referring to.
Referring to the WorkCover certificates, Ms Goodman submits that I would be satisfied only as to injury to the lumbar spine and not to the cervical spine, the pain from which came on much later. The shoulders are not mentioned at all in the certificates and I would not be satisfied of injury to either.
With respect to Dr Breit, Ms Goodman submits that the history he took was not the history
Mr Hosgorur gave to Dr Kanan and is not consistent with the medical certificates. Moreover, Mr Hosgorur denied, when asked, that he had any prior injuries. When asked the same by
Dr Pillimer, he denied any prior injuries, and he did not give Dr Dryson that history.
CONSIDERATION
By section 9 of the 1987 Act, a worker who receives an injury is entitled to compensation from his or her employer in accordance with the Act.
Section 4 of the 1987 Act defines “injury” as follows:
“In this Act--
"injury" --(a)means personal injury arising out of or in the course of employment,
(b)includes a
"disease injury", which means—(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
By section 9A(1) of the 1987 Act, no compensation is payable in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Section 9A(2) lists examples of matters to be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to an injury.
In order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority[42]. “Injury” refers to both the event and the pathology arising from it”: Lyons v Master Builders Association of NSW Pty Ltd[43].
[42] [2000] NSWCC12; 19 NSWCCR 496.
[43] (2003) 25 NSWCCR 422.
Mr Hosgorur bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[44] and Nguyen v Cosmopolitan Homes[45].
[44] [2008] NSWWCCPD 134.
[45] [2008] NSWCA 246.
The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[46] as follows:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
[46] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Dr Athour’s notes on 10 March 2015 show that Mr Hosgorur had a history of headache and pain in both forearms, neck and lumbar spine. The notes refer to motor vehicle accidents in 1977 and 1979 although the significance of either is not clear. The notes refer to the left and right shoulders, and state “no neck pain” and “no back pain”. It is not clear from the notes to what extent the recorded complaints were historical and to what extent they were current. However, notes of subsequent visits in March 2015 and May 2015, and Mr Berbari’s report on 28 April 2015, indicate that Mr Hosgorur presented with pain in the neck, lumbar spine and both shoulders.
As they stand, the last medical records before the injury on 5 May 2017 were from May 2015. Ms Goodman referred to the injury claim form in which Mr Hosgorur indicated that his nominated treating doctor was Dr June Lee. There are no records in evidence from Dr Lee. Other than in the injury claim form, Mr Hosgorur does not refer to Dr Lee in his evidence and nothing is known of her. She does not appear to be at the same practice as Dr Kanan or the other general practitioners.
Ms Goodman submitted that the medical records are incomplete. However, it was open to the respondent, if it considered it relevant, to seek further information about Dr Lee including requesting any records.
Dr Kanan noted on 10 May 2017 that Mr Hosgorur had not had a checkup for two years and was not on any medications. Mr Hosgorur’s evidence is that he was in good health up until May 2017. He says he had been employed by the respondent since September 2015 and was working full time with no restrictions. He said he might have experienced some back pain after a day’s work every now and then, but it was nothing serious and it would go away after he had rested. There is no evidence to the contrary.
Coming to the events of 5 May 2017, there is no dispute that an incident occurred on that day when Mr Hosgorur was lifting heavy rubber belts onto a utility. He has given varying estimates of their weights but I do not think anything turns on this. There is no dispute that at least some were heavy enough to need two persons to lift them. Mr Hosgorur describes putting them onto his shoulder and having to throw them at increasing heights as the vehicle was loaded up. The respondent does not take issue with this description.
There is no dispute that Mr Hosgorur injured his lumbar spine on 5 May 2017. The dispute goes to the claim of injury to the neck and both shoulders.
There are discrepancies throughout Mr Hosgorur’s evidence and throughout the clinical records and reports. Some are described in the following paragraphs.
In his statement of evidence dated 12 June 2021, Mr Hosgorur says he started to feel pain in his neck, back and shoulders on 5 May 2017.
In the injury claim form completed on 28 June 2017, Mr Hosgorur described “sharp pain in his lower back and pain in both shoulders" and “very sore lower back and shoulders”. He did not refer to neck pain.
The treating and independent reports show that Mr Hosgorur has given varying descriptions of the onset of pain on 5 May 2017. In his statement of evidence, he says he started to experience pain after completing the task of loading the utility. He evidently meant he was still at work because he says he told his fellow worker he was having pain.
Dr Breit took a history that Mr Hosgorur only started to have some discomfort in his low back, the base of the neck and his shoulders as he was going home. Dr Teoh took a history that he had lower back pain when he went home that night.
Dr Darwish reported that the pain started “after a work related injury” and Dr Kanan reported that Mr Hosgorur complained of pain “following this incident” although I do not think what
Mr Hosgorur actually said about the onset can be inferred from either of those descriptions.Dr Dave recorded that Mr Hosgorur felt “immediate pain and swelling over the neck and shoulder” and numbness down his arm. Dr Pillimer said Mr Hosgorur became aware of discomfort in his neck, right shoulder and his low back “before knock-off”.
The different accounts Mr Hosgorur gave of the onset of pain do not vary by more than a few hours, and I do not think that too much can be made of those discrepancies. However, together with the varying descriptions of where he felt pain, they raise questions about how reliable his evidence is.
Dr Kanan recorded that Mr Hosgorur complained of “shoulder and neck pain … for a few days”. She did not identify which shoulder, and I accept that “shoulder pain” could be read to mean one or both. She made no mention of Mr Hosgorur’s accepted lower back, even though he says he experienced back pain on the day of the incident, and other doctors all took histories of the onset of back pain at that time. The first reference in her notes to his employment is on 27 June 2017 when she referred to back pain “after lifting a heavy rail” at work five weeks earlier.
After Dr Kanan’s initial record of shoulder and neck pain, there is no mention in the general practitioners’ records of injury to, or pain in, the neck until 13 November 2017. Apart from Dr Kanan’s initial note, there is no further reference to either shoulder until 26 August 2020 when she noted bilateral osteoarthritis, worse on the right, and that Mr Hosgorur denied any previous shoulder injury.
Ms Goodman submits that, based on the contemporaneous medical evidence, I ought to infer that Mr Hosgorur did not have any pain in his neck or shoulders as a result of the incident on 5 May 2017.
It is well-established that clinical notes must be approached with caution: Mason v Demasi[47] and Davis v Council of the City of Wagga Wagga[48]. In Demasi, Basten J referred to the difficulties associated with discounting an appellant’s testimony on the basis of apparently inconsistent accounts given to or taken by various health professionals.
[47] [2009] NSWCA 227 (Demasi).
[48] [2004] NSWCA 34; 4 DDCR 358 (Davis).
In Davis, Mason P said experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.
That said, apparent discrepancies, inconsistencies or omissions in clinical records or reports cannot just be disregarded. Mr Hosgorur’s accounts, and the discrepancies in some of the clinical records and reports mean that the evidence has to be approached with some caution. I do not mean to suggest that Mr Hosgorur has been untruthful. However, it has been difficult to ascertain a clear picture and to reach a determination as to the different body parts in dispute.
The value of contemporaneous evidence when determining contested facts has been repeatedly endorsed by the courts: Watson v Foxman[49]and Onassis v Vergottis[50].
[49] (1995) 49 NSWLR 315.
[50] (1968) 2 Lloyds Report 403.
Mr Stanton acknowledges the limitations of Dr Kanan’s initial record but submits that more weight should be given to reasonably contemporaneous evidence, in particular, the injury claim form on 28 June 2017 and Dr Breit’s report on 25 July 2017. The difficulty with the injury claim form is that it does not refer to the neck. It is true that Dr Breit took a history of pain in the neck, shoulders and low back but his report still has to be considered in light of the evidence overall.
Having outlined some of the difficulties with Mr Hosgorur’s evidence, I find for the following reasons that the evidence overall supports the conclusion that he suffered injury to his cervical spine and right shoulder on 5 May 2017. I am not persuaded that he suffered injury to his left shoulder.
Cervical spine
According to Dr Kanan’s records, Mr Hosgorur complained of neck pain on 10 May 2017. On 25 July 2017, Dr Breit took a history of neck pain since the incident.
On 13 November 2013, Dr Kanan requested a CT scan of the cervical spine and noted that a workers compensation certificate had been faxed. It is not clear which certificate she referred to. The closest in time is dated 6 November 2017.[51] It refers only to the lumbar spine. As
Ms Goodman submits, all the certificates up until 17 July 2018 refer only to the lumbar spine. However, given Dr Kanan’s note, and that she referred Mr Hosgorur to Dr Darwish in relation to his neck pain, I do not think too much weight can be placed on what is recorded on her certificates.[51] Reply page 228.
Dr Kanan continued to record complaints of neck pain, although not consistently, at consultations throughout 2018, 2019 and 2020. On those occasions, her notes usually refer to “WC visit” or WorkCover or a case conference.
Dr Darwish saw Mr Hosgorur initially for neck and shoulder pain. In January 2018,
Mr Hosgorur was also complaining of neck pain which he said he had had since the work injury. Dr Darwish noted the CT scan and arranged for an MRI which showed disc protrusions and potential nerve compression.Dr Darwish considered the radiologically-demonstrated changes in Mr Hosgorur’s cervical spine, most likely degenerative in nature, were aggravated by his employment which required heavy lifting. He described Mr Hosgorur’s employment as a “major aggravating factor to his pre-existing condition”.
Dr Darwish saw Mr Hosgorur on at least 11 occasions and recommended treatment for his neck including injections and physiotherapy. He was aware of the circumstances of the injury on 5 May 2017. I consider his opinion should be given considerable weight.
Dr Dave did not comment on causation and his report does not assist in that regard.
Dr Carney had Dr Darwish’s and Dr Breit’s reports. He agreed with Dr Breit that
Mr Hosgorur’s work was usually fairly sedentary but, on the day of the incident, it was unusually heavy and involved lifting from ground level and placing heavy objects at times above shoulder height, placing unusual stresses on his spine and joints and exacerbating back pain and neck pain. Dr Carney concluded that Mr Hosgorur’s employment was “the substantial contributing factor” to the exacerbation of osteoarthritis.Dr Dryson did not see Mr Hosgorur until August 2020. However, he had the radiological scans and Dr Darwish’s reports. He diagnosed aggravation of cervical spondylosis as a result of Mr Hosgorur’s employment.
Dr Pillimer accepted that Mr Hosgorur’s complaints of pain were genuine. He accepted that Mr Hosgorur had “significant mechanical problems” in his cervical region with evidence of degenerative change and disc protrusions, but concluded that this employment on 5 May 2017 was “of no significance” to his present problems.
Dr Pillimer’s reasons seem to rely more on what he considered was Mr Hosgorur’s lack of honesty about his history, his different accounts of the onset of pain, and the apparent delay in reporting symptoms, than on a medical assessment. He does not explain why he thought it was “unlikely there was even an aggravation of underlying problems” other than to say that Mr Hosgorur did not complain of those symptoms until “much later”.
On balance, I find the weight of the evidence supports the conclusion that Mr Hosgorur sustained injury to his cervical spine in the course of his employment on 5 May 2017 to which his employment was a substantial contributing factor.
Right and left shoulder
The evidence about the right and left shoulders is not entirely clear. Mr Hosgorur claims he suffered pain in both shoulders around the time of the incident. Dr Kanan recorded five days later that he had neck and “shoulder pain”. As already noted, that may mean one or both.
Dr Breit reported in July 2017 that Mr Hosgorur complained of bilateral shoulder pain. However, his report has to be considered in light of the absence of any further reference in Dr Kanan’s reports to either shoulder until 15 September 2020 when she noted that
Mr Hosgorur was complaining of pain in his right shoulder. Thereafter, she continued to note with reference to “WC visit” that Mr Hosgorur complained of right shoulder pain. There is no reference to left shoulder pain. None of the WorkCover certificates refer to either shoulder.
Dr Kanan reported on 17 February 2021 that Mr Hosgorur was suffering from right shoulder pain from that osteoarthritis was causing severe pain in his neck, back and shoulder. On 28 July 2021, she reported that, following the incident, Mr Hosgorur was complaining of neck pain and bilateral shoulder pain and scans showed bilateral shoulder osteoarthritis. She does not explain why it was over three years after the incident before her notes referred again to the shoulders and then only to the right shoulder. She does not explain the absence of reference in the certificates to either shoulder.
Dr Dave took a history that Mr Hosgorur complained of immediate pain and swelling “over the neck and shoulder, along with some associated paresthesia and numbness down his arm”. He referred to CT scans, MRI scans and x-rays done of “the shoulder” and that
Mr Hosgorur had had an injection into “the shoulder”. He said Mr Hosgorur was heading towards “a shoulder joint replacement” if he chose.It is not correct, as Dr Kanan stated in her last report, that Dr Dave confirmed that Mr Hosgorur’s (bilateral) shoulder problem was related to the incident in 2017. Dr Dave did not comment on causation but it is clear from his report that he was talking about one shoulder only, and the scans refer to the right shoulder.
Dr Carney did not comment on either shoulder.
Dr Darwish reported in January 2018 that Mr Hosgorur complained of stiffness and pain in both shoulders after the work injury. The next reference to shoulder pain is on 11 March 2021 and then to the right shoulder only.
In his report on 26 July 2021, Dr Darwish was asked whether Mr Hosgorur’s employment was “a main contributing factor” to Mr Hosgorur’s lumbar spine, cervical spine, right shoulder and left shoulder injuries. Dr Darwish responded that he believed employment was a major contributing factor to the development of neck and back pain. He made no mention of shoulder pain.
Dr Dryson initially provided provisional calculation of whole person impairment of each shoulder dependent on whether pathology was demonstrated on MRI scan. On 9 September 2020, he reported that he had seen CT scans of both shoulders dated 20 August 2020 but that CT scan was not an appropriate investigation and an MRI was required. He noted the CT scan showed evidence of pre-existing osteoarthritis in both shoulders, more marked on the right than on the left but an MRI scan was required to determine any tendon or bursal injuries.
Dr Dryson was subsequently provided with an MRI of the right shoulder from which he noted significant multiple pathology. Dr Dryson said there was evidence of pre-existing injury to the right shoulder and the episode of 5 May 2017 could only be seen as an aggravating event. I place considerable weight on Dr Dryson’s opinion because he was not prepared to offer an opinion without an MRI.
Dr Dryson was not provided with an MRI of the left shoulder. He said he made an assumption, based on similar restricted movement in both, that there was similar loss of efficient use of the left and concluded it was likely there had been a similar aggravation there as well. Considering the relative absence of reference to the left shoulder throughout the records and reports, I am not persuaded that an assumption is sufficient ground on which to conclude that Mr Hosgorur injured his left shoulder in the incident.
Dr Pillimer reported in March 2021 that Mr Hosgorur reported ongoing problems particularly with his right shoulder. He had a full range of left shoulder movement. Dr Pillimer accepted that Mr Hosgorur had “a mechanical problem in the right shoulder region” but, for the same reasons as above, not that it was related to his employment. For the same reasons as above, Dr Pillimer did not engage with the evidence itself, placing more weight on the history given by Mr Hosgorur.
Considering all of the evidence, and despite its difficulties, I find that, more probably than not, Mr Hosgorur suffered injury to his right shoulder in the incident on 5 May 2017. I am not satisfied that he is discharged the onus of establishing that he also suffered injury to his left shoulder.
Whether the injuries to Mr Hosgorur’s cervical spine and right shoulder have resulted in permanent impairment and, if so, the extent of any permanent impairment are matters for a Medical Assessor to assess.
1
6
0